courts consider decisions in 2 water use cases 071112

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Courts consider decisions in two water-use cases

July 11, 2012 by Stave Adler, Ag Alert,The California Farm Bureau Federation

Judges in Siskiyou and Mendocino counties are considering decisions in separate cases affecting farmers' ability to use water for irrigation and for frost protection. Testimony in both cases ended in late June, with decisions pending.

The case debated in Siskiyou County Superior Court concerns a new interpretation by the California Department of Fish and Game of a long-standing law on streambed alterations. In challenging the new DFG interpretation, the Siskiyou County Farm Bureau said it could disrupt how water rights are administered in California and threaten farmers' ability to provide water to their crops.

Because this section of the Fish and Game Code applies uniformly throughout the state, the Siskiyou County ruling could create a precedent affecting water users in other regions of California.

With the trial phase of the case concluded, plaintiffs and defendants have until mid-September to file closing briefs. A decision will be rendered after that.

The case revolves around Section 1602 of the Fish and Game Code, which requires individuals to notify and potentially obtain a Lake and Streambed Alteration Agreement from DFG before conducting certain activities that alter a streambed. Since Section 1602 became law in 1961, DFG has required such permits for activities including gravel mining, the annual construction of push-up dams, installation of new headgates and other construction projects that physically alter streambeds.

But in 2010, DFG informed farmers in the Scott and Shasta river watersheds that they would be required to obtain streambed alteration agreements simply to exercise their water rights by opening an existing headgate or activating an existing pump for crop irrigation.

"The new requirements jeopardize both water rights and property rights for farmers and ranchers, creating a situation with a constant threat of enforcement action, additional burdensome fees and the time and expense of obtaining the annual permits," Siskiyou County Farm Bureau President Rex Houghton said, noting that water rights are already managed by the courts and a separate state agency, the State Water Resources Control Board.

Houghton said no water right owner using water for agricultural purposes ever encountered a situation where section 1602 required a permit just to use water. He noted that farmers and ranchers along the two rivers have taken a number of voluntary actions to benefit salmon, and said DFG already has many other ways to protect fish.

In the Mendocino County case, a judge is weighing the pros and cons of a lawsuit challenging Russian River frost water regulations adopted by the State Water Resources Control Board last September.

The issue involves farmers in Mendocino and Sonoma counties, who occasionally use their sprinkler systems to protect grapes and pears from frost, and state and federal regulators who say that the frost protection measures pull too much water from the Russian River and its tributaries, thereby endangering protected salmon and steelhead.

Farmers and their supporters from the two counties packed the courtroom to overflowing as Judge Ann Moorman heard arguments from both sides on June 28. She has 90 days to make a ruling.

Devon Jones, Mendocino County Farm Bureau executive director, said the judge's decision could come sooner, and thanked the farmers from Mendocino and Sonoma counties who attended the hearing.

"Based on the discussion and comments at the hearing, we remain optimistic that there will be a positive outcome," Jones said.

Two cases were filed in October 2011 to challenge the regulation. The plaintiffs for the two cases are Rudy and Linda Light, winegrape growers in Mendocino County, and the Russian River Water Users for the Environment, a group of winegrape and pear growers in the two counties. The two cases were heard together.

Farmers outlined many concerns with the regulation, including:

It declares all existing diversions for frost protection unreasonable, prohibiting all diversions for frost protection unless and until the water is diverted under a water demand management program approved by the state water board.

It requires farmers to comply with stream flow standards that are not yet known, putting water users in the position of being told their use is unreasonable without knowing what would be considered reasonable.

It fails to determine whether any diversions actually pose a threat, but demands water users to prove their innocence.

In adopting the regulation, the board relied on vague science and ignored strong evidence that the regulation was inappropriate and unnecessary.

It ignores the priority of water rights. The regulation would declare all use of water for frost protection to be unreasonable.

The regulation would not affect other water users in the Russian River watershed, such as domestic or municipal diversions.

The regulation would require all diverters to collect detailed records on water diversions and stream flow stage, and provide information to the state water board for possible enforcement action.

It results in significant costs. The state water board estimates the regulation would cost a 160-acre vineyard up to $352,000 in initial capital costs and $36,200 in annual expenses.

(Steve Adler is associate editor of Ag Alert. He may be contacted at sadler@cfbf.com.) Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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