On December 29, 2011, the California Office of Administrative Law approved the addition of a Frost Control Regulation (“Regulation”), effective immediately, requiring that diversion of water from the Russian River stream system for the purposes of frost protection between March 15 and May 15, is conditional on prior approval by the State Water Resources Control Board ("SWRCB") of a detailed Water Demand Management Program ("WDMP"). Only diversions upstream of Warm Springs Dam in Sonoma County or Coyote Dam in Mendocino County are exempt from the WDMP requirements. The Regulation is available at http://www.swrcb.ca.gov/waterrights/water_issues/programs/hearings/russian_river_frost/docs/approved_reg.pdf
The SWRCB developed the Regulation to protect salmonids from the threat of stranding that could occur when stream flows and depths decrease rapidly due to high instantaneous demand for water for frost protection during a frost. The Regulation aims to avoid stranding mortality by requiring vineyard owners to manage their diversions to coordinate and reduce instantaneous demand.
Water Demand Management Program Requirements
The Frost Protection Regulation makes compliance with its terms an automatic condition of all water right permits and licenses that authorize the diversion of water from the Russian River stream system for purposes of frost protection. WDMPs, required by the Frost Protection Regulation, must be submitted to the SWRCB by February 1 prior to the frost season and approved by the SWRCB prior to diversions for frost protection. An individual or governing body capable of ensuring that the requirements of a WDMP are met is responsible for the administration and revisions to a given WDMP; cooperation among diverters from a stream, and joint submission of WDMPs, are encouraged.
At a minimum, a WDMP must include the following:
(1) An inventory of the frost diversion systems within the area subject to the WDMP;
(2) A stream stage monitoring program, developed in consultation with the National Marine Fisheries Service and California Department of Fish and Game;
(3) An assessment of the potential risk of stranding mortality due to frost diversions (or, in 2012, a plan for developing a risk assessment);
(4) The identification and timelines for implementation of any corrective actions necessary to prevent stranding mortality caused by frost diversions; and
(5) Annual reporting of program data, activities, and results.
Each of these requirements includes additional sub-requirements, which are described in more detail in the Regulation. Related to the sub-requirements, the WDMP must outline a schedule for conducting the frost inventory, developing and implementing the stream stage monitoring program, and conducting the risk assessment.
In addition, the Regulation requires all WDMPs to identify not only the diverters participating in the program, but also any known diverters within the area subject to the WDMP who declined to participate.
WDMP Requirement for Groundwater Users
In a notable departure from accepted limits of its jurisdiction, the SWRCB seeks to regulate groundwater uses through the Regulation. Its provisions require that a WDMP be submitted and approved prior to “the pumping of hydraulically connected groundwater" and establishes a presumption that "groundwater pumped within the Russian River watershed is considered hydraulically connected to the Russian River stream system if that pumping contributes to a reduction in stream stage to any surface stream in the Russian River watershed during any single frost event." While this language seems to suggest that the inclusion of a groundwater diverter is conditional, a subsequent provision indicates that it is exemption from the Regulation that is, in fact, conditional and that WDMPs are required for groundwater diversions for frost protection unless the pumper can document a lack of hydraulic connectivity to the stream to the satisfaction of the SWRCB’s Deputy Director for Water Rights. Application for such an exemption cannot be made until 2015.
In its Supplement to the Final Statement of Reasons for Rulemaking, the SWRCB clarified the seeming inconsistency, explaining:
During the first three years the regulation is in force, groundwater diverters may not independently be exempted from the regulation. During this period, in order for a groundwater diverter to be exempt from the regulation, the individuals or governing bodies administering WDMPs would need to develop the criteria for showing that participants in a WDMP do not meet the standard for hydraulic connectivity in subdivision (a).
(Supp. to Final Statement of Reasons for Rulemaking, p. 2.)
The application of the Frost Protection Regulation to groundwater diverters is likely to be controversial, given past repudiation of SWRCB jurisdiction over percolating groundwater. (Los Angeles v. Pomeroy (1899) 124 Cal. 597; see also North Gualala Water Company v. State Water Resources Control Board (2006) 139 Cal.Ap.4th 1577, 1605-06.) However, the application of the WDMP requirement to groundwater diverters may be in line with the SWRCB's recent assertions of jurisdiction over groundwater in the case of Environmental Law Foundation v. SWRCB, Sacramento County Superior Court Case No. 34-2010-80000583.
Consequence of Violation
Any diversion of water, including the pumping of groundwater, for frost protection in violation of the Frost Protection Regulation, including the failure to implement any required corrective actions, is deemed an "unreasonable method of diversion and use and a violation of Water Code section 100, and shall be subject to enforcement by the board."
If you have any questions concerning the content of this Legal Alert, please contact Rebecca R. Akroyd or Janet Goldsmith of our office, or the attorney with whom you normally consult.