Mendocino County Judge Tosses Out State’s Frost-protection Rules

September 26, 2012

A Mendocino County judge on Wednesday overturned controversial state water rules designed to regulate how grape growers in Sonoma and Mendocino Counties divert water from the Russian River.

Judge Ann Moorman of the Superior Court of Mendocino County declared the law to be “constitutionally void” and “invalid.”

“There is not substantial evidence in the record to show the regulation, as enacted, is necessary,” she said.

The regulations were aimed at preventing endangered and threatened fish from becoming stranded and dying when farmers take water from the river to protect their crops from frost. Grape growers spray water on the vines to form a protective shield of ice when temperatures fall below freezing.

Moorman said the state Water Resources Control Board failed to do its homework before adopting the regulations. They lacked scientific basis, infringed on water rights and wrongly required farmers to gather information and create regulations themselves at great expense.

She also said the regulations were too sweeping and general, failing to take into consideration different conditions in the watershed and applying the rules to all farmers, regardless of whether they drew water directly from streams.

Although the regulations would not have banned the use of river water for frost protection, the judge warned of economic devastation.

“Without water to frost protect, complete crop loss due to frost damage would be far more prevalent in certain areas of Sonoma County and much of Mendocino County,” Moorman wrote. “Crop failure due to frost damage has measurable and potentially catastrophic economic consequences to the individual farmer, employees and county revenues.”

Sonoma and Mendocino farmers and their advocates lauded the decision, which affects hundreds of farmers along more than 1,700 miles of streams in the Russian River watershed.

“A lot of us are just tired of government intruding on our property rights,” said Duff Bevill, founder of Bevill Vineyards Management near Healdsburg. The judge “recognized that it was an overreach on the state’s part, he said.”

Bevill is part of a group of grape growers in Sonoma and Mendocino Counties, called Russian River Water Users for the Environment, that filed suit against the state in October. They said the regulations were unconstitutional, too broad and didn’t address steps that growers had already taken to protect salmon and steelhead populations.

A second lawsuit was filed by Rudolph and Linda Light, vineyard owners in Mendocino County, and both cases were consolidated into the Mendocino County Superior Court. The state water rules were set to go into effect last March, but in February Judge Moorman postponed enforcement of the regulations.

State Water Resources Control Board officials declined immediate comment Wednesday, saying they were reviewing the ruling.

Environmentalists said the court decision is unfortunate.

“We have seen significant instances of harm to protected fish as well as to downstream water users and water rights holders as a result of substantial spikes in pumping water for frost control,” said David Keller, Bay Area director of Friends of the Eel River. “The prior state regulations have not been sufficient to control the excesses. The new law, just invalidated, was a good faith effort to address these problems.”

The regulations were triggered by strandings of salmonid in the Russian River and its tributaries. They occurred when sudden declines in water levels trapped fish in small pools and on land. Regulators cited two incidents in 2008, one each in Sonoma and Mendocino counties.

In her ruling, Moorman concluded that farmers may have contributed to the strandings but there were other, unusual factors at work. She cited low humidity, sharp drops in temperature, below average stream flows from dry conditions; and the failure of the Sonoma County Water Agency to release additional water from Lake Mendocino quickly enough to combat the sudden decline in stream flows due to frost protection draws.

“No one factor alone caused the strandings; it was the culmination of these unique conditions,” Moorman wrote.

She noted that farmers and water agencies have taken steps to prevent similar conditions. They include building additional off-stream water storage reservoirs, installing more water gauges to better predict sudden water drops, and better coordination of water draws and of releases from Lake Mendocino.

Dave Koball, a member of the Mendocino County Farm Bureau and manager of Fetzer/Bonterra vineyards, said he hopes water regulators will be more willing now to work with farmers to improve fisheries rather than subject them to regulations. “We’ll have more success working together,” he said.

The ruling upheld nearly every contention raised by farmers in their lawsuits, attorneys for the plaintiffs noted.

“I’m very impressed,” said Ukiah attorney Jared Carter, who represented the Lights, who were out of the country Wednesday and unavailable for comment.

Sacramento attorney Nick Jacobs, who represents a group of Sonoma County farmers, said the ruling is good both for farmers and the environment because it calls for regulators to conduct additional studies on the impacts of water diversions.

“That’s good for farmers, that’s good for fish,” he said.