On October 1, 2014, the California Supreme Court denied the petitions for review of the First District Court of Appeal’s opinion in Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463.  In that opinion, the Court of Appeal reversed the Mendocino County Superior Court’s 2013 judgment invalidating section 862 of Title 23 of the California Code of Regulations (Section 862).  For a complete summary of the Court of Appeal opinion and Superior Court Judgment, see “First District Court of Appeal Upholds State Water Resources Control Board’s Frost Protection Regulation,” available here.  Justice Baxter noted his dissent from the denial of the petitions for review and would have granted review.  With the Supreme Court’s order, Section 862 will go into effect according to a “phased approach,” as required by the Court of Appeal’s modified opinion.

Section 862 provides that any diversion from the Russian River watershed from March 15 to May 15 for frost protection purposes that does not comply with a “water demand management program” (WDMP) approved by the State Water Resources Control Board (State Board) constitutes an unreasonable diversion and use of water in violation of Water Code section 100.  A WDMP must include (1) an inventory of frost diversion systems within the area subject to the WDMP; (2) a stream stage monitoring program; (3) an assessment, updated annually, of the potential risk of stranding mortality due to frost diversions (conducted in consultation with the National Marine Fisheries Service and the Department of Fish and Game); (4) the identification and timelines for implementation of any corrective actions necessary to prevent stranding mortality cause by frost diversions; and (5) annual reporting of program data, activities, and results.  An individual or a “governing body” must administer the WDMP.

As enacted, Section 862 provides that a WDMP must be submitted to the State Board by February 1 prior to the frost season.  In Resolution No. 2011-0047 adopting the regulation, the State Board stated its expectation that Section 862 will be implemented using a “phased approach,” given the time needed to select stream monitoring locations, install stream gages, and determine the appropriate stream stage necessary to prevent stranding mortality.  For example, the resolution provided that the initial WDMP was due February 1, 2012, but need only contain (1) the identity of the governing body; (2) a list of names of the participating diverters; (3) for each participating diverter, the sources of water used and the acreage frost protected; and (4) a schedule for completing the frost inventory, developing a stream stage monitoring program, and conducting a risk assessment.  (The deadlines in Section 862 and the resolution adopting the regulation were stayed pending the conclusion of the litigation.)

In its Order Modifying Opinion and Denying Rehearing, the Court of Appeal made clear that it was relying on the State Board’s declaration not to enforce Section 862 during the initial stages of implementation:

[W]e interpret Regulation 862 to ban frost protection diversion that does not conform to a WDMP, but only after an appropriate time for the formulation of WDMP’s has occurred . . . .  We assume . . . the Board will, upon remand, follow an implementation schedule that will preclude enforcement until an appropriate period of the formulation of WDMP’s has passed.  (Light, supra, 226 Cal.App.4th at p. 1476 fn. 4.)

The State Board has not yet issued a revised implementation schedule, consistent with the instructions in the Court of Appeal’s modified opinion.

Given Section 862’s extensive requirements for a WDMP, water users in the Russian River watershed anticipating diversions for frost protection this spring should begin developing a strategy to comply.  Growers are encouraged to cooperate with their county farm bureaus, and more information regarding the WDMP process may be found online here.

For more information on the requirements and implementation of Section 862, please contact Nick Jacobs at njacobs@somachlaw.com, or Brittany Lewis-Roberts at blewis-roberts@somachlaw.com.

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