The Russian River Frost Protection Regulation (“Frost Protection Rule”) states that “any diversion of water from the Russian River stream system, including the pumping of hydraulically connected groundwater, for purposes of frost protection” must be diverted in accordance with an approved “water demand management program” (WDMP), or the diversion “is an unreasonable method of diversion and use and a violation of Water Code section 100.” The California State Water Resources Control Board (“State Water Board”) adopted the Frost Protection Rule on September 20, 2011.
Litigation over the rule culminated in the decision in Light et al. v. State Water Res. Control Bd., 226 Cal. App. 4th 1463 (2014), which confirmed that the State Water Board has authority to adopt quasi-legislative rules for the reasonable use and reasonable manner of water diversion. The court also reiterated that the reasonable use doctrine applies to all water rights—including riparian and pre-1914 appropriators. Finally, the court approved the State Water Board’s reliance on industry-led consortiums of water right holders to assist in the management of the frost protection program through the adoption of the WDMPs.
Readers of the Light decision could be forgiven for assuming that the case presented a classic conflict between heavy-handed regulators, environmental interests, and farmers. As the rule-making proceeded, there were moments of conflict and some grape growers eventually filed a lawsuit. However, there was also a great deal of common ground between others in the winegrape industry, State Water Board members, and the conservation community. One of the Frost Protection Rule’s untold stories is the tremendous amount of progress that was made “on the ground” while the rule was in development and delayed by litigation. The winegrape industry deserves credit for its actions, and the State Water Board and wildlife agencies deserve credit for bringing the issue forward. The progress that has happened on the ground augurs well for the future of the effort, and begs the question whether the Frost Protection Rule is already a success.
Brian J. Johnson,
Reasonable Use on the Russian River: A Brief History of the Frost Protection Rule, 9 Golden Gate U. Envtl. L.J. 41