California Appeals Panel Says Water Board Can Regulate Russian River Diversions

By Stephen Siciliano  

June 17 — A California appeals court has upheld the state's authority to regulate water diversions from the Russian River stream system to spray vineyards and orchards for frost protection, reversing a lower court decision.

The California Appeals Court said the tentative ruling was “narrow,” addressing only the question of whether the State Water Resources Control Board has authority to regulate riparian users and “early appropriators,” rather than the provisions of any particular, substantive regulation.

The opinion, written by Acting Presiding Judge Sandra Margulies with Justices Robert Dondero and Kathleen Banke concurring, leaves intact the state water board's regulations governing the diversion of water for frost protection during the spring.

“We conclude that, in regulating the unreasonable use of water, the board can weigh the use of water for certain public purposes, notably the protection of wildlife habitat, against the commercial use of water by riparian users and early appropriators,” the appeals court said.

The appellate panel ruled that the board had correctly found the regulation necessary to enforce water statutes under its purview, and lawfully required the establishment of local governing bodies to formulate the rules.

The court also rejected challenges to the environmental impact report done by the state water board as part of the rulemaking process.

“When the decision is final and regulations restored, the board anticipates a Russian River-wide system of plans that will afford protection to endangered species, while continuing to allow growers to protect wine grape crops from frost in a coordinated manner,” Michael Lauffer, chief counsel of the State Water Resources Control Board, said in a June 17 statement.

Wildlife Protection v. Commercial Uses

The Russian River flows through the northern California counties of Mendocino and Sonoma, with more than 1,700 miles of potential salmon habitat. The salmon spawning grounds also provide water for 60,000 acres of vineyards, according to the court.

In April 2008, young salmon were stranded on the banks of the Russian River stream system, killing them, the court said. Federal scientists determined the deaths were due to the diversion of stream water to spray vineyards and orchards and prevent frost damage during a cold and dry month.

Spraying new growth with water in cold weather creates an icy shell that insulates crops from the colder air. Because the growers' diversions are synchronized, the spraying can lead to sudden decreases on water volume flow.

At the request of the National Marine Fisheries Service, the State Water Resources Control Board adopted Regulation 862 applying to “any diversion of water from the Russian River stream system for purposes of frost protection from March 15 through May 15.”

The section is not a substantive regulation, the appellate court said, rather a directive that “water demand management programs” be developed at the local level.

These programs can be used to determine when threats to young salmon in their locales surface and to develop corresponding corrective actions to prevent stranding mortality, the court said.

Vineyard Owners, Grape Growers Sue

The water board's resolution adopting Regulation 862 was challenged in separate petitions in the superior courts for Mendocino and Sacramento counties. A pair of vineyard owners filed the Mendocino lawsuit, while an assortment of grape growers filed the Sacramento action.

The cases were consolidated for decision in Superior Court for the County of Mendocino, which stayed enforcement of Regulation 862 in February 2012.

The trial court said the water board exceeded its authority in adopting a regulation limiting riparian user access. It said the regulation violated the “rule of priority” governing the division of insufficient water supplies.

Under the rule of priority, riparian users are first in line.

Riparian users possess rights to water that passes through their land. Neither they nor early appropriators, whose rights were established before 1914, need a permit or government authorization to exercise their water rights.

The regulation, the trial court said, improperly delegated regulatory authority to the water demand management programs, while the board declaration of necessity for the regulation was not supported by substantial evidence

Limits on Private Use

The appellate panel said the two classes of rights holders are constrained by a “rule of reasonableness” drafted as Article X, Section 2, California Constitution in 1928.

That rule states that water rights, “shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.”

Additionally, the “public trust doctrine” imposes a potential limit on private uses of water, granting the state authority over navigable waterways, the appeals court said.

Addressing the board's authority to regulate riparian and early appropriator rights holders, the court said there are circumstances wherein diversion of Russian River water “has the potential to inflict long-lasting damage on already fragile salmon populations.”

The court said that leaving the state water board with no enforcement option other than “post-event” litigation “deprives it of any effective regulatory remedy, since the damage will have been done and the critical circumstances may not arise again for months or years.”

To the argument that Regulation 862 imposes a permit requirement on rights holders not subjected to them by law, the court said that a permit waiver does not signify release from all regulation.

“Preventing these users from the unreasonable use of water necessarily requires the imposition of limits on that use by the board,” the appellate panel said.

Regarding the trial court's decision that the board violated the rule of priority, the appellate panel said the rule “dictates that riparian users are satisfied first, but when the supply runs sufficiently short, even riparian users must curtail their beneficial use proportionally.”

Buck Stops With Board

The appeals court reversed the lower court's finding that the water board unlawfully delegated enforcement authority to local governing bodies, since the regulation makes clear that failure to comply with a water demand management plan is subject to enforcement by the board.

The role of the governing bodies, the court said, “is the administration of board-approved policy.”

Judicial review of administrative regulations is governed by Government Code Section 11350, which states that a regulation may be declared invalid if an agency determination of its necessity is not supported by evidence.

The appellate panel reversed the lower court determination that the evidence provided by the board was insufficient.

The appeals court also reversed the trial court's invalidation of the environmental impact report prepared by the water board. It said Section 21168.5 of the Public Resources Code provides that a court's review of an agency decision “shall extend only to whether there was a prejudicial abuse of discretion.”

The correctness of an environmental impact report's conclusions are not under court purview, only its “sufficiency as an informative document,” the appeals court said.

The appellate panel rejected the basis for the lower court's invalidation of the environmental document, including its failure to consider other diversions or minimum flow levels, the shortcomings of its mitigation measures and other environmental impacts.

Plaintiffs' attorneys Somach Simmons and Dunn did not return a call for comment as of press time.

To contact the reporter on this story: Stephen Siciliano in Los Angeles at

To contact the editor responsible for this story: Larry Pearl at