A California appeals court reinstated regulations challenged by grape growers Mendocino and Sonoma counties on the use of Russian River water for frost protection on vineyards and orchards.
Ruling in two combined cases, the First District Court of Appeals Monday upheld the state Water Resources Control Board limits on RussianRiver water diversion for frost protection. But the court also approved the board’s delegation of the program to local boards composed of the very farmers accused of overuse, over the objection of Rudolph Light, a private hydrologist who also sued.
The California Water Resources Control Board was within its rights to impose limits on farmers who divert RussianRiver water in spring for frost protection, the appeal court held.
The board imposed the rule after a particularly cold April in 2008 when an estimated 25,000 young salmon died along the banks of the 1,700-mile RussianRiver stream system that drains through Sonoma and MendocinoCounties.
Scientists concluded the deaths were caused by abrupt declines in water levels as the water was drained to spray on vineyards and orchards to prevent frost damage.
The board imposed a regulation to reduce water diversion under certain circumstances, but did not set water use limits itself, instead delegating the job to create a program to local governing bodies, composed of the growers themselves.
A trial judge invalidated the regulations and the board appealed.
Salmon swim from the ocean upstream in late fall and winter to lay eggs in the streambed. Eggs hatch in winter and the fry living in shallow water at the margins of the stream for several months before moving to deeper water.
In 2008, young salmon were stranded and died either left without water or trapped in isolated pools. The evidence suggested the problem was not low water level, but a sudden decrease which didn’t give the fish time to seek protection in deeper water.
“No one doubts the use of sprinkled water to prevent crop frost damage is a beneficial one,” the panel said. “Whether it is also a reasonable use, the board has determined, depends upon whether ‘the diversion can be managed to avoid the harm’ to salmonids,” the court added.
Restricting the board to litigation after an event, like the salmon kill, “deprives it of any effective regulatory remedy,” the court said.
As to whether delegation of its authority to administer the limits amounts to a “fox guarding the henhouse” the court said the rules limit the governing bodies to reporting uncooperative water diverter to the board, and thus is merely an administrator of board regulations.
So long as the board exercises independent discretion in evaluating the local programs there is no unlawful delegation of authority, the court said.
Case: Light v. State Water Resources Control Board, No. A138440