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Board to discuss ‘reasonableness’ of frost protection

Issue Date: June 8, 2011
By Steve Adler

Just as Russian River winegrape growers are examining frost protection regulations being proposed by the State Water Resources Control Board, another and potentially more sweeping proposal has emerged—one that observers say could affect every agricultural water user in California.

The latest development centers on what the board has termed "the reasonable use doctrine." According to the proposed regulation, after March 14, 2012, any diversion of water from the Russian River stream system, including the pumping of hydraulically connected groundwater, for purposes of frost protection from March 15 through May 15 would be unreasonable and a violation of the state Water Code, unless the water is diverted in accordance with a board-approved water demand management program or the water is diverted upstream of Warm Springs Dam in Sonoma County or Coyote Dam in Mendocino County.

In essence, the question becomes whether the diversion of water from the Russian River for frost protection is a reasonable use; if not, it could be found to be a violation of the Water Code.

"This is something that people definitely need to pay attention to. It isn't a very big step to think that if they say frost water use is unreasonable, then what about irrigation use? Maybe that's unreasonable, too. That is our concern, because without water you can't produce any commodity, whether it is 'frost-friendly' or not," said Devon Jones, executive director of the Mendocino County Farm Bureau.

The issue relates to allocation of Russian River flows for multiple uses, including infrequent but necessary springtime diversions by winegrape growers for frost protection. During certain months—typically March and April—freezing temperatures can kill tender buds on vines that have just emerged from winter dormancy. To protect the buds from damage, farmers use sprinkler irrigation to create a protective layer of ice on the vines.

The water-use issue surfaced following a series of unusually frigid nights in the spring of 2008, when grape growers used irrigation to protect vines from frost. Federal and state biologists blamed the water diversions for causing lowered flows in the river and tributaries, which stranded fish.

The California Constitution provides that all water in California needs to be used reasonably. Any unreasonable use is prohibited.

"The significance of a declaration that your water use is unreasonable is that it means that you no longer have a right to that water," said Jack Rice, California Farm Bureau Federation associate counsel. "Since no one in California has a right to use water unreasonably, a declaration of unreasonable use would have the effect of making water rights essentially disappear. If you don't have a water right, then the government does not have to pay for any water it takes. Basically, this is an attempt by the state to gain control of water use and avoid any limitation the Fifth Amendment takings clause might place on the ability of government to take water from farmers to use for other purposes."

Rice said the state water board has the authority to investigate and prevent the waste and unreasonable use of water, but that the board inverted the process in the development of the Russian River frost regulation.

"In every case before where it has looked at the reasonableness of a particular use, the board engaged in a thorough investigatory process and then shaped its response based on the facts. In this case it has not. What it is doing is saying the use is unreasonable and then attempting to use the declaration to set out in search of facts to support that declaration. Basically, the regulation has preceded the fact finding," Rice said.

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

If the water board is successful in imposing the "unreasonable" finding on the Russian River, he said, findings affecting the Sacramento-San Joaquin Delta could be next and then any agricultural water use could be targeted.

"If it can do this, then the door is opened for the state water board to start setting regulations establishing things like, 'Furrow irrigation of cotton in the San Joaquin Valley is unreasonable unless you can demonstrate X, Y, Z,' or, 'Growing alfalfa where the evapotranspiration rate is greater than X is unreasonable unless you can demonstrate X, Y, Z,' " Rice said.

Jones stressed that farmers on the North Coast, like their counterparts elsewhere in California, use water efficiently.

"Farmers really understand the importance of the resource, but it is also an economic factor. Our farmers aren't going to be turning on frost protection water unless they need it. It is an energy expense, a labor expense, plus the cost of the water," she said.

Rice said it is essential for farmers and ranchers to continue to work on learning more about the proposal, water use and how to improve conditions for fish while protecting their ability to use water. He encouraged farmers to file comments with the water board that promote changes to the proposed regulation that make it more effective without imposing unnecessary hardships on those it affects.

Interested persons may submit comments on the proposed regulation by July 5 at noon. Comments may be sent by email to commentletters@waterboards.ca.gov, or by fax to 916-341-5620. Include in the subject line: Comment Letter—Proposed Russian River Frost Regulation. They also may be mailed to Jeanine Townsend, Clerk of the Board, State Water Resources Control Board, P.O. Box 100, Sacramento, CA 95812-2000.

On Sept. 20, the state water board will hold a public hearing to discuss and possibly vote on adoption of the proposed Russian River frost regulation. The meeting will be held at the Cal/EPA Building Coastal Hearing Room, 1001 I St., Sacramento, starting at 9 a.m.

The state water board has also scheduled an all-day workshop in the same location on July 20 concerning the agricultural water use efficiency proposal. According to the board's meeting notice, the informal workshop will include "presentations and panels of experts and practitioners to explore water use efficiency, including practices, requirements, trends, and the challenges and opportunities for further efficiency."

(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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