With frost season just days away, a Mendocino County judge has issued a second rebuke to the state for its attempt to regulate grape growers who divert water from the Russian River to protect their crops.
Judge Ann Moorman of the Superior Court Wednesday rejected the Environmental Impact Report that was the backbone of the state's rules that were designed to prevent endangered and threatened fish from becoming stranded and dying when farmers take water from the river to spray on their crops to prevent frost damage.
"The volume of water ascribed to these diversions is never analyzed, evaluated or even estimated," in the EIR, Moorman wrote in the decision. "For example, while frost protectors may hold 30 percent of the available permits or water rights, collectively they may only be responsible for 10 percent of the volume of water diverted, or it may be much more."
In September, Moorman had overturned the state's rules, but didn't thoroughly address whether the Environmental Impact Report used by the state to write those rules was adequate.
Both sides subsequently asked Moorman to rule on that issue, said attorneys representing the state and the grape growers. In her ruling Wednesday, Moorman declared the state's EIR invalid, saying it lacked substantial evidence to support its claims.
The ruling could pave the way for the state to appeal the judge's decisions, while also creating an additional hurdle for its case.
Kathie Smith, spokeswoman for the State Water Board, declined to comment on the case and would not say whether the state plans to appeal the rulings. "I don't think we've made a decision about that," Smith said.
Grape growers and environmental observers said they expect the state to appeal. "That's what they told us," said Duff Bevill, founder of Bevill Vineyard Management. "They made that pretty clear, but they wouldn't do anything until this (ruling) happened."
The frost protection season typically lasts from Mar. 15 to May 15, starting as buds burst and leaves break through the vines. When temperatures fall below freezing, grape growers spray water on the vines to form a protective shield of ice, which holds the grapes at a steady temperature.
"Bud break is just about to happen," said Al Cadd, president of the Russian River Property Owners Association. "We have another week. The Property Owners Association is going to start monitoring right away."
Bevill said the group has been monitoring stream levels for several years and is installing more guages in the river.
Even so, environmentalists saw the ruling as a setback, said David Keller, board president of Sonoma County Conservation Action.
"We hope that this year that the grape growers take the opportunity on their own, voluntarily, to minimize impacts to fisheries and to downstream water users in the frost irrigation procedures," Keller said. "There are clearly some bad actors in the grape growing community, and we hope that there's pressure from neighbors and others in the industry to do this right."
Moorman said the state EIR didn't fully determine the impact on stream levels of other Russian River water users such as the Sonoma County Water Agency, but Keller said that was a flawed analysis.
"It has nothing to do with what the water agency is taking out of the river," he said.
Some growers are researching ways to reduce the amount of water needed to protect vines from frost, Keller said.
"The real question is, how much water do you actually need to create a cap of water on the buds?" Keller said.
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