Friday, June 29, 2012

Killing business

Grape growers flood Ukiah court for frost protection lawsuit


UKIAH — Scores of Sonoma and Mendocino county grape growers and other farmers packed a Mendocino County Superior Court room Thursday for a lawsuit challenging state frost protection rules for stretches of the Russian River watershed.

Regulators say the rules are necessary to protect salmon and steelhead, the latter a threatened species. Farmers and their attorneys say the regulations are unneeded, trample farmers' water rights and exceed the state Water Resources Control Board's authority.

Mendocino County Superior Court Judge Ann Moorman took the matter under submission after hearing the attorneys argue their cases. She has 90 days to make a ruling.

At issue is the amount and timing of diversions of water from the river and key tributaries during the springtime for use in spraying to protect vulnerable grapes and other crops from frost damage.

The state regulations require significant data collection. They include requiring farmers to install stream flow guages and to measure and report how much water is diverted for frost protection. A stream monitoring program must be developed in consultation with federal and state fish authorities.

It also requires that farmers assess the liklihood their stream diversions could cause fish to become stranded.

The rules were adopted last year by the state Water Resources Control Board but were suspended in February pending the lawsuit's outcome.

The goal is to prevent sudden drops in water levels that sometimes occur when growers simultaneously suck water from the river to spray crops during frosty nights.

The practice can cause the deaths of young salmon that can become stranded by abrupt water level declines, according to the state and environmentalists.

The lawsuit focuses on two such incidents along the Russian River and its tributaries in 2008 — one in Sonoma County and one in Mendocino County. The link of one of the two incidents to frost protection is questionable, Judge Moorman noted.

Attorneys for the growers said there is sparse evidence to indicate the use of river water for frost protection is a significant problem for fish. Many more die each year when rivers dry up naturally, they said.

The lawsuit contends the science behind the regulations is vague; the state hasn't proved they're necessary; and that the water board overstepped its authority.

“It's really about the limits of government,” Redwood Valley grape grower Rudy Light said outside the hearing. He filed one of two lawsuits that were consolidated into Thursday's hearing. The other was brought by a group of Sonoma County growers, the Russian River Water Users for the Environment.

Farmers say they've addressed the water-use issue by voluntarily coordinating frost protection efforts.

“They (state regulators) still want to cram their regulations down our throats,” said Alexander Valley winegrape grower David Fanucchi, a member of the Russian River Property Owners Association.

State Deputy Attorney General William Jenkins told Judge Moorman there is substantial evidence that the regulations are needed to protect fish and that it was clearly within the rights of the water board to initiate the regulations.

The plaintiffs' two attorneys argued the opposite. They also contended the regulations could create economic hardships for some farmers and force them out of business.

The regulations would affect hundreds of growers along 1,700 miles of streams in the Russian River watershed.

The Mendocino County Farm Bureau had urged farmers to attend Thursday's hearing and many did.

To accommodate the crowd, bailiffs brought in extra chairs and seated people in the jury box, but many still were left standing in the small courtroom.

A lone supporter of the regulations was among the group.

The regulations are “a step in the right direction,” said David Keller, of Friends of the Eel River.

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