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Local growers in the Russian River watershed in Mendocino and Sonoma ounties, titled Russian River Water Users for the Environment, filed a lawsuit against the State Water Resources Control Board (SWRCB) on Oct. 20 in the Sacramento Superior Court for an unprecedented regulation targeting winegrape growers’ use of water for frost protection purposes. What is frost protection?

During the spring months, as vines emerge from dormancy, they begin to form tiny buds which later produce the bountiful crops seen in fall. If spring temperatures drop below freezing (31°F or below), the buds will freeze, killing the bud and subsequent grapes. A mere one to two degrees can result in the difference between a productive crop and a complete crop loss. In order to protect against such a freeze, misted water is placed over the buds, providing a reduced risk of damage, with excess returning and replenishing the groundwater table below. The regulation

The regulation declares all frost protection diversions downstream of Lake Mendocino (Coyote Dam) and Lake Sonoma (Warm Springs Dam) between March 15 and May 15 of the year are “unreasonable” unless the diverter is complying with a Water Demand Management Program (WDMP).  Anyone who uses water for frost protection in the watershed, regardless of water right held or method of diversion (e.g. riparian, appropriative, “hydraulically connected groundwater”) is subject to the regulation. The watershed is approximately 100 miles long and from 12 to 32 miles wide.

The catalyst for the regulation was a letter sent to SWRCB from the National Oceanic Atmospheric Administration (NOAA) Fisheries Service on Feb. 27, 2009, “expressing concern over the threat to federally threatened and endangered salmonids of frost protection irrigation by vineyard owners in the Russian River watershed.”  In 2008, two strandings occurred which were allegedly linked to frost protection — one in Sonoma and one in Mendocino County. Local efforts

One of the most notable examples of growers altering practices in recent decades to improve fishery resources is converting from tilled (plowed) soils between the rows, to non-tillaged (mowing) between the rows, reducing the amount of sediment which reaches streams.  No law or regulation demands this sustainable practice, yet there is no doubt it has improved fishery resources.

Growers have engaged in other local efforts such as spearheading a frost protection ordinance to collect data on the watershed, identifying any risk zones to salmonid habitat; erecting offstream storage ponds so frost water may be pumped from storage rather than directly from streams and rivers; and coordinating diversions with the Sonoma County Water Agency during peak frost seasons. Local efforts, by all indication, have proven successful.Alternatives covered

SWRCB, as is required under the California Environmental Quality Act (CEQA), stated alternative options for growers in its Environmental Impact Report (EIR).  The EIR expressly states the status quo and local grower voluntary efforts are the environmentally superior alternative. Amongst those cited as the most probable alternative to frost water are orchard heaters and wind machines. The agency, while admitting these alternatives are not environmentally superior to water, fails to address they do not achieve the same results as water. 

According to a California State University, Fresno study, water is a viable option to protect vines when temperatures drop to 25°F.  When there is a temperature inversion layer, heaters in combination with wind machines, allow for protection down to approximately 26°F.  When there is no inversion layer, or what is known as advective freezes, water is simply the only option to protect vines. Common to the area are advective freezes and was precisely the type of freeze that occurred in 2008.Growers’ arguments and hope

The grass roots group, comprised of many farming as few as a couple dozen acres, have gathered in shops and sheds across the counties reflecting on how to protect their most valuable property right — water.  The consensus was a lawsuit arguing several water law doctrines have been inappropriately applied or completely ignored in the regulation, such as the “reasonable use” doctrine, priority of rights doctrine, and well established case law that water rights must be adjudicated on a case by case basis, not on a watershed basis. Growers also argue the regulation is not “reasonably necessary,” as required by California’s Administrative Procedures Act, and SWRCB failed to comply with CEQA. 

Growers hope SWRCB will rescind the regulation and re-engage with cooperative and effective regional efforts to manage water resources in Mendocino and Sonoma Counties. Doing so will benefit the environment, growers, and the wine and agricultural economy.  

Compliance is set for Feb. 1, restricting growers’ use of water, yet no details have been provided how growers may comply with the regulation or what enforcement measures can be taken against them. An injunction halting the enforcement of the regulation until the case has been fully decided has been filed and a hearing date is set for Feb. 3.     ...

Aubrey A. Mauritson, Esq., is an associate attorney at Perry, Johnson, Anderson, Miller & Moskowitz, LLP in Santa Rosa, California, practicing Land Use and Civil Litigation.  She can be reached at Mauritson@perrylaw.net.