RUDOLPH H. LIGHT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant; RUSSIAN RIVER WATER USERS FOR THE ENVIRONMENT et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant.
No. A138440
Court of Appeal, First District, Division One, California
June 16, 2014
226 Cal. App. 4th 1463
[CERTIFIED FOR PARTIAL PUBLICATION*]
Kamala D. Harris, Attorney General, Robert W. Byrne and Gavin G. McCabe, Assistant Attorneys General, Russell G. Hildreth and William Jenkins, Deputy Attorneys General, for Defendant and Appellant.
Carter, Momsen & Knight, Jared G. Carter and Matisse M. Knight for Plaintiffs and Respondents Rudolph H. Light and Linda Light.
Nancy N. McDonough and Jack L. Rice for California Farm Bureau Federation as Amicus Curiae on behalf of Plaintiffs and Respondents Rudolph H. Light, Linda Light, Russian River Water Users for the Environment, Allan Nelson, Billy Munselle, Robert Terry Rosetti and Redwood Ranch and Vineyards.
Downey Brand, Kevin M. O‘Brien and Andrew S. Deeringer for Northern California Water Association as Amicus Curiae on behalf of Plaintiffs and Respondents Russian River Water Users for the Environment, Allan Nelson, Billy Munselle, Robert Terry Rosetti and Redwood Ranch and Vineyards.
OPINION
MARGULIES, Acting P. J.—In April 2008, a particularly cold month in a dry year, young salmon were found to have been fatally stranded along banks of the Russian River stream system, which drains Sonoma and Mendocino Counties. Federal scientists concluded the deaths were caused by abrupt declines in water level that occurred when water was drained from the streams and sprayed on vineyards and orchards to prevent frost damage. Following a series of hearings and the preparation of an environmental impact report, the State Water Resources Control Board (Board) adopted a regulation that is likely to require a reduction in diversion of water from the stream system for frost protection, at least under certain circumstances. The regulation itself contains no substantive regulation of water use, instead delegating the task of formulating regulatory programs to local governing bodies composed of the diverting growers themselves. The regulation declares that any water use inconsistent with the programs, once they have been formulated and approved by the Board, is unreasonable and therefore prohibited. The trial court granted a writ of mandate invalidating the regulation on several grounds. We reverse.
Foremost among plaintiffs’ grounds for challenging the regulation is their contention the Board lacks the regulatory authority to limit water use by riparian users and early appropriators, whose diversion is beyond the permitting authority of the Board. Although the Board has no authority to require such users to obtain a permit to divert, there is no question it has the power to prevent riparian users and early appropriators from using water in an unreasonable manner. We conclude that, in regulating the unreasonable use of
We also conclude the Board properly found the regulation to be necessary to enforce water use statutes and did not unlawfully delegate its authority by requiring local governing bodies to formulate the substantive regulations. Finally, we find no error in the Board‘s certification of the environmental impact report.
I. BACKGROUND
The stream system of the Russian River is home to three species of salmon classified as either threatened or endangered under the federal
In April 2008, when unseasonably cold weather followed an exceptionally dry winter, the National Marine Fisheries Service (Fisheries Service) discovered two episodes of fatal strandings of salmonids in the mainstem Russian River and a tributary stream. “Strandings” occur when salmonids in shallow areas of the watercourse are left without water or are trapped in isolated pools. There is evidence suggesting the problem is not necessarily one of low water levels per se, but of sudden decreases in water level, which allow the salmonids insufficient time or opportunity to seek the protection of deeper water. Because the salmonids spend their time in shallower water near the stream banks, they may be particularly susceptible to such sudden decreases. Extrapolating from the available limited data, the Fisheries Service reached a “coarse but conservative” estimate that some 25,000 salmonids had been killed throughout the stream system in the April 2008 events.
In a letter, the Fisheries Service urged the Board to undertake regulatory activity to reduce the risk of frost-protection-related salmonid deaths. Although the Fisheries Service pointed the finger at growers, other factors were potentially involved. Most obviously, the affected area of the stream system is downriver of two large reservoir lakes created by the Coyote and Warm Springs Dams. The pace of water release from these dams directly affects the level of water in the system. Following the discovery of the stranding deaths, the agency responsible for controlling the release of water from the dams, the Sonoma County Water Agency (SCWA), experimented with anticipatory releases of water to counteract the effects of frost protection diversion. The SCWA concluded such releases were impractical, given the long time, up to 14 hours, necessary for the released water to reach the more distant portions of the stream system and the difficulty in predicting frost events, which gave rise at times to wasteful “false alarm” releases. In addition, the coordinated nature of the frost protection diversions made it difficult to counteract their impact. The SCWA told the Board additional anticipatory releases would be ineffective in preventing the sudden drawdowns.
On the other hand, while protecting sensitive crops from frost is of critical commercial importance, the practice can be managed to reduce the immediate demand on streamflows. Growers can minimize their use of sprayed water by
Following the 2008 discovery of salmonid deaths, the Fisheries Service formed a task force and attempted to organize voluntary efforts to reduce the impact of frost protection on the stream system. While it praised the efforts of participating growers, the Fisheries Service eventually concluded the problem could not be managed through voluntary efforts. The submitted proposals for voluntary action generally did not address diversion in the tributary streams of the river, where the problem was most acute, and the inability to compel the compliance of all growers with a voluntary plan made success unlikely. Based on the Fisheries Service‘s experience, the Board concluded voluntary efforts would not solve the problem.
Following a series of public hearings and the preparation of an environmental impact report, in September 2011 the Board adopted a regulation addressing diversion for frost protection, codified as
As described in Regulation 862, the fundamental functions of the WDMP‘s are to develop and implement methods for monitoring the “stage,” or height,
Regarding potential “corrective actions,” Regulation 862, subdivision (c)(4) states: “If the governing body determines that diversions for purposes of frost protection have the potential to cause stranding mortality, the governing body shall notify the diverter(s) of the potential risk. The governing body, in consultation with the diverters, shall develop a corrective action plan that will prevent stranding mortality. Corrective actions may include alternative methods for frost protection, best management practices, better coordination of diversions, construction of off stream storage facilities, real-time stream gage and diversion monitoring, or other alternative methods of diversion. ... In developing the corrective action plan the governing body shall consider the relative water right priorities of the diverters. ...”
Once a program has been developed and approved, “[t]he diverters shall implement corrective actions in accordance with the corrective action plan, or cease diverting water for frost protection.” (Reg. 862, subd. (c)(4).) Reinforcing this ban, Regulation 862 declares, “The diversion of water in violation of this section, including the failure to implement the corrective actions included in any corrective action plan developed by the governing body, is an unreasonable method of diversion and use and a violation of
In the resolution adopting Regulation 862, the Board stated the portion of the regulation requiring corrective actions would not be implemented immediately. Instead, the resolution established a schedule allowing for the collection and analysis of baseline data during the first two and a half years following adoption.4
The trial court later entered a 41-page decision finding the Board‘s action unlawful on the following grounds: (1) the Board exceeded its authority in adopting a regulation that limited the use of water by riparian users; (2) the regulation violated the “rule of priority,” which governs the manner in which insufficient water is divided among users; (3) the regulation improperly delegated regulatory authority to the WDMP‘s; and (4) the declaration of necessity for the regulation was not supported by substantial evidence. Given its ruling, the trial court initially declined to rule on plaintiffs’ claims under the
The Board has appealed the trial court‘s judgment.
II. DISCUSSION
A. Legal Background
We begin with a summary of four areas of law that converge in the resolution of plaintiffs’ claims.
1. California‘s Dual System of Water Rights and the Rule of Priority
Ownership of California‘s water is vested generally in the state‘s residents, but individuals and entities can acquire “water rights,” the right to
The differences between and among riparian users and appropriators become most pronounced when the available supply of water is inadequate to satisfy the needs of all those holding water rights. Under the “rule of priority,” which governs diversion in such circumstances, the rights of riparian users are paramount. Although riparian users must curtail their use proportionately among themselves in times of shortage, they are entitled to satisfy their reasonable needs first, before appropriators can even begin to divert water. (United States, supra, 182 Cal.App.3d at p. 104.) As a result, appropriators may be deprived of all use of water when the supply is short. In turn, senior appropriators—those who acquired their rights first in time—are entitled to satisfy their reasonable needs, up to their full appropriation, before more-junior appropriators become entitled to any water. (Id. at pp. 104–105; North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555, 561 [54 Cal.Rptr.3d 578].)
Water use by both riparian users and appropriators is constrained by the rule of reasonableness, which has been preserved in the state Constitution since 1928. (
As the Supreme Court recognized soon after Article X, Section 2 was added, the rule limiting water use to that reasonably necessary “appl[ies] to the use of all water, under whatever right the use may be enjoyed.” (Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 367–368 [40 P.2d 486] (Peabody).) The rule of reasonableness is now “the overriding principle governing the use of water in California.” (People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743, 750 [126 Cal.Rptr. 851] (Forni).)
California courts have never defined, nor as far as we have been able to determine, even attempted to define, what constitutes an unreasonable use of water, perhaps because the reasonableness of any particular use depends largely on the circumstances. (Peabody, supra, 2 Cal.2d at p. 368.) “What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time.” (Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist. (1935) 3 Cal.2d 489, 567 [45 P.2d 972].) In this regard, the Joslin court commented, “Although, as we have said, what is a reasonable use of water depends on the circumstances of each case, such an inquiry cannot be resolved in vacuo isolated from statewide considerations of
3. Public Trust Doctrine
Existing alongside the rule of reasonableness is a second doctrine imposing at least a potential limit on private uses of water. As the Supreme Court has explained that doctrine, the state holds the navigable waterways in “public trust” for the benefit of state residents. (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434, 437 [189 Cal.Rptr. 346, 658 P.2d 709] (Audubon Society).) In Audubon Society, the plaintiffs challenged longstanding water use permits issued by the Board that, by allowing the diversion of water from streams feeding Lake Mono, had resulted in an environmentally destructive decrease in the lake‘s level. In declining to reconsider the permits, the Board concluded it was required to allocate all available water for beneficial use by appropriators, notwithstanding the potential environmental harm such diversions would cause. (Id. at p. 427.) The Audubon Society court required the Board to reconsider the permits, taking into account the public trust doctrine. (Id. at pp. 446–447.) Although the doctrine originally protected navigable waterways for the purposes of navigation, commerce, and fishing, Audubon Society extended the geographic scope of the doctrine to nonnavigable streams that feed navigable waterways, and it expanded the purpose of the doctrine to the preservation of water‘s function as natural habitat. (Id. at pp. 434–435, 437; see Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1361 [83 Cal.Rptr.3d 588] [“an important purpose of the public trust over bodies of water is to protect the habitat for wildlife ...“].)
In defining the role of the public trust doctrine in water rights policy, Audubon Society recognized that “the public trust doctrine and the appropriative water rights system administered by the Water Board developed independently of each other. Each developed comprehensive rules and principles
4. The Board
The Board was created as the State Water Commission in 1913 to administer the appropriation of water for beneficial purposes. As originally created, the Board had the “limited role” of granting use rights to water that was not being applied to beneficial purposes and was not otherwise appropriated. (Audubon Society, supra, 33 Cal.3d at p. 442.) “[T]he function of the Water Board was restricted to determining if unappropriated water was available; if it was, and no competing appropriator submitted a claim, the grant of an appropriation was a ministerial act.” (Ibid.) The enactment of Article X, Section 2, however, “radically altered water law in California and led to an expansion of the powers of the board.” (Audubon Society, at p. 442.) Through subsequent legislation and judicial decisions, “the function of the Water Board has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters.” (Id. at p. 444.)
As currently constituted, the Board “has been granted broad authority to control and condition water use, insuring utilization consistent with public interest.” (Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1977) 20 Cal.3d 327, 342 [142 Cal.Rptr. 904, 572 P.2d 1128] (EBMUD).) Its enabling statute describes the Board‘s function as “to provide for the orderly and efficient administration of the water resources of the state” and grants it
B. Validity of Regulation 862
In contending Regulation 862 is invalid, plaintiffs argue (1) the Board lacks the authority to enact regulations governing the unreasonable use of water, (2) the Board lacks the authority to limit the use of water by riparian and pre-1914 appropriators, and (3) Regulation 862 improperly violates the rule of priority. Whether a particular regulation is within the scope of authority conferred by the Legislature on an administrative agency is a legal issue we review de novo. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11, fn. 4 [78 Cal.Rptr.2d 1, 960 P.2d 1031]; Southern California Gas Co. v. South Coast Air Quality Management Dist. (2011) 200 Cal.App.4th 251, 268 [133 Cal.Rptr.3d 7].)
1. The Board‘s Authority to Enact Regulations Governing the Unreasonable Use of Water
The Board characterized the regulatory premise of Regulation 862 as follows: “a diversion of water that is harmful to salmonids is an unreasonable use of water if the diversion can be managed to avoid the harm.” (Notice of Preparation and Public Scoping Meeting Mem. (Oct. 27, 2010) p. 2.) In finding the Board lacked the authority to enact Regulation 862, the trial court recognized the Board had regulatory authority over the unreasonable use of state waters. It held, however, that this authority was limited, at least as to riparian users, to pursuing enforcement actions in the courts against allegedly unreasonable users, rather than enacting regulations to preclude unreasonable use.
Neither decisional law nor the governing statutes support the trial court‘s limited vision of the Board‘s regulatory authority. As noted above, the Board is charged with acting to prevent unreasonable and wasteful uses of water, regardless of the claim of right under which the water is diverted. (
Plaintiffs rightly point out that, despite Forni‘s refusal to invalidate the regulation, its resolution of the issue was not a ringing endorsement of the Board‘s power to enact regulations governing the unreasonable use of water. In effect, Forni chose to treat the regulation as an advisory statement of policy that left to the courts the ultimate authority to determine whether a particular use of water was reasonable. (Forni, supra, 54 Cal.App.3d at p. 752.) Of course, to the extent the bald declaration of unreasonableness in former California Administrative Code, title 23, section 659 constituted a valid “policy statement” under Forni, Regulation 862 is similarly valid. At a minimum, Forni‘s holding would require a reversal of the trial court‘s invalidation of the regulation on the issue of authority.
Yet to the extent Forni‘s ruling was based on the implicit rationale that only the judiciary has the power to declare a particular water use unreasonable, we conclude Forni construed the Board‘s authority too narrowly. Subsequent judicial decisions have rejected the contention that the9
If, as California Trout holds, the Legislature has the power to enact general rules governing the reasonable use of water, the Board has a similar regulatory authority. The
The Supreme Court has recognized as much, describing the Board‘s regulatory authority in the broadest terms. “The Legislature, consistent with its authority under [
In arguing the Board‘s authority in this area is limited to enforcement actions, plaintiffs rely in part on the text of
Particularly in these circumstances, there is a practical reason for recognizing the Board‘s authority to issue regulations. The problem addressed by Regulation 862 is the abrupt drop in stream levels that occurs when a large number of users simultaneously activate sprinklers that draw a large volume of water. No one doubts the use of sprinkled water to prevent crop frost damage is a beneficial one. Whether it is also a reasonable use, the Board has determined, depends upon whether “the diversion can be managed to avoid the harm” to salmonids. It appears that in many, or perhaps most circumstances, diversion for frost protection purposes from the Russian River stream system is biologically harmless. Yet on those occasions when it might be damaging, it has the potential to inflict long-lasting damage on already fragile salmon populations. Restricting the Board to postevent litigation deprives it of any effective regulatory remedy, since the damage will have been done and the critical circumstances may not arise again for months or years. It is difficult to imagine what effective relief a court could grant, other than a broad and inflexible injunction against future diversion for purposes of frost protection, a ruling that would be in the interests neither of the enjoined
2. Regulation of Riparian Users and Pre-1914 Appropriators
In contending the Board exceeded its authority, plaintiffs also cite the time-honored exemption of riparian users and pre-1914 appropriators from the permitting authority of the Board. (E.g., Farm Bureau, supra, 51 Cal.4th at p. 429.) While such users cannot be required to obtain permits as a condition of exercising their right to divert, that does not mean their use of California‘s waters is free from Board regulation. “[N]o water rights are inviolable; all water rights are subject to governmental regulation.” (United States, supra, 182 Cal.App.3d 82, 106.) The Supreme Court recognized as much in Farm Bureau; immediately after noting the Board “has no permitting or licensing authority over riparian rights, or over appropriative rights acquired before 1914,” the court observed the Board “does have authority to prevent illegal diversions and to prevent waste or unreasonable use of water, regardless of the basis under which the right is held.” (Farm Bureau, at p. 429, fn. omitted.) That the Board cannot require riparian users and pre-1914 appropriators to obtain permits before making reasonable beneficial use of water does not mean the Board cannot prevent them from making unreasonable use. Any other rule would effectively read
Plaintiffs argue that Regulation 862 effectively imposes a permit requirement, since it conditions their use of water on compliance with standards developed by a WDMP. The argument proves too much, since its acceptance would preclude any regulation of water use by riparian users and pre-1914 appropriators. Preventing these users from the unreasonable use of water necessarily requires the imposition of limits on that use by the Board. Limited and particularized prohibitions designed to prevent unreasonable use are different from, and by no means legally equivalent to, the comprehensive regulation embodied in a water use permit, which, as an allocation of “excess water,” typically limits the user‘s rights without regard to the reasonableness of use. (See City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 925-926 [207 P.2d 17].)
3. Violation of the Rule of Priority
The Lights additionally argue that, whatever the scope of the Board‘s regulatory authority, it does not have the power “to adopt a definition that prohibits a ‘beneficial use,’ even though the amount of water being used for that beneficial use is no more than minimally required, in order to protect another ‘beneficial use’ to which it ascribes higher priority.” Essentially on this basis, the parties characterize the Board‘s regulation as a violation of the rule of priority.
In analyzing this contention, we start with the premise that the supply of water in California is variable and at times insufficient to supply all possible beneficial uses. As the circumstances of this appeal demonstrate, this may be true on a temporary and localized basis, as well as on a more global one. When the supply of water in a particular stream system is insufficient to satisfy all beneficial uses, water rights users must curtail their use. As discussed above, the rule of priority dictates that riparian users are satisfied first, but when the supply runs sufficiently short, even riparian users must curtail their beneficial use proportionately. (United States, supra, 182 Cal.App.3d at p. 104.)
So long as the only water uses involved are those governed by common law and statutory water rights, the Lights’ contention might have force. When
This case, moreover, involves more than traditional water rights. As the Supreme Court held in Audubon Society, no party can acquire a vested right to appropriate water in a manner harmful to public trust interests, and the state has “an affirmative duty” to take the public trust into account in regulating water use by protecting public trust uses whenever feasible. (Audubon Society, supra, 33 Cal.3d at pp. 446-447.) Although the Audubon Society court considered the public trust doctrine only in relation to permitted appropriative water rights, subsequent decisions have assumed the doctrine applies as well in the context of riparian and pre-1914 appropriator rights. (United States, supra, 182 Cal.App.3d at p. 106 [in Audubon Society, “the court determined that no one has a vested right to use water in a manner harmful to the state‘s waters“]; El Dorado, supra, 142 Cal.App.4th at p. 966 [“when the public trust doctrine clashes with the rule of priority, the rule of priority must yield“].)
In holding that Regulation 862 does not violate the rule of priority, our decision extends only to the regulation‘s potential for allocating water between the beneficial public trust use of maintaining stream levels to avoid salmonid deaths and the beneficial use of diversion for frost protection by water rights holders. As between particular rights holders, “[e]very effort . . . must be made to respect and enforce the rule of priority. A solution to a dispute over water rights ‘must preserve water right priorities to the extent those priorities do not lead to unreasonable use.’ ” (El Dorado, supra, 142 Cal.App.4th at p. 966.) The Sacramento plaintiffs argue this principle is violated because “[t]he regulation broadly declares unreasonable all water used for frost protection purposes in two counties, without consideration of the priority of individual‘s water rights.” This badly misstates the import of the regulation. Regulation 862 does not declare any specific diversion of water for frost protection unreasonable, much less all such use. Frost protection diversion is unreasonable only if it occurs in violation of a WDMP. As among individual water rights holders, Regulation 862 requires WDMP‘s to respect the rule of priority in assigning corrective actions. (Id., subd. (c)(4).)
C. Delegation of Regulatory Authority to WDMP Governing Bodies
The trial court concluded Regulation 862 improperly delegated the regulatory authority of the Board to WDMP‘s, reasoning the requirement of the section that the governing body be “capable of ensuring that the requirements of the program are met” (Reg. 862, subd. (b)) means enforcement of the WDMP‘s has been delegated to the governing boards. The court also concluded the section constituted an improper delegation of legislative authority because “[d]eclaring the use of water for frost protection an unreasonable use of water is a fundamental shift in water policy in this state.” We review the constitutional issue of unlawful delegation de novo. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632 [92 Cal.Rptr.2d 115] (Sun Pacific).)
There is a tension when private industry shares responsibility for the governmental regulation of its commercial activities. On the one hand, members of the industry are well positioned to understand the regulatory needs and the impact of regulation on their business activities. In this respect, they are ideal partners in the formulation of appropriate regulations. Perhaps for this reason, it has never been held that the mere involvement of regulated private parties in the making of administrative regulations constitutes an improper delegation of governmental authority. On the other hand, by involving members of the regulated industry the agency runs the risks associated with the fox guarding the henhouse. As a result, there is “a tight line between lawful and unlawful delegation of regulatory authority.” (International Assn. of Plumbing etc. Officials v. California Building Stds. Com. (1997) 55 Cal.App.4th 245, 253 [64 Cal.Rptr.2d 129] (Plumbing etc.
“To put it simply, the Legislature could not lawfully grant the power to make laws to a private entity . . . .” (Plumbing etc. Officials, supra, 55 Cal.App.4th at p. 253.) While, as illustrated in Plumbing etc. Officials, private entities can formulate and suggest potential regulation, the doctrine of unlawful delegation requires the Legislature or a regulatory agency to exercise the final say over whether any particular regulation becomes law. In addition, the Legislature cannot “delegat[e] . . . regulatory power to agencies composed of interested members of the regulated industries without imposing standards or safeguards adequate to prevent abuse. Absent the required safeguards, such grants of authority constitute unconstitutional delegations of legislative power.” (Dunn-Edwards Corp. v. South Coast Air Quality Management Dist. (1993) 19 Cal.App.4th 536, 545-546, fn. 5 [24 Cal.Rptr.2d 99]; see Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 11 [97 Cal.Rptr. 431].)
The delegation of authority to the WDMP governing bodies under Regulation 862 is not materially different from the type of delegation found lawful in Sun Pacific. The defendant in Sun Pacific was a citrus grower that concededly harbored diseased trees in its operations. When the state brought an action in the name of the local citrus pest control district to remove the diseased trees, the defendant challenged the constitutionality of the delegation of power to the district. (Sun Pacific, supra, 77 Cal.App.4th at p. 625.) Citrus pest control districts are established pursuant to state law for more effective control and eradication of disease. They may be organized by the local county boards of supervisors upon the petition of the owners of a majority of citrus growing acreage in a district. The districts are governed by a five-person board of local growers, required to formulate a plan for pest control and eradication, and granted various powers to effectuate the program. (Id. at p. 627.) In considering the lawfulness of this broad delegation, the court noted, ” ‘[a]n unconstitutional delegation of authority occurs only when a legislative body (1) leaves the resolution of fundamental policy issues to others or (2) fails to provide adequate direction for the implementation of that policy.’ ” (Id. at p. 633.) In rejecting the argument “self-interested citrus growers” who comprised a district‘s board unlawfully “set policy,” the court held that the Legislature had “made basic policy decisions with respect to the control and eradication of citrus pests, through the best known and accepted methods,” leaving only the implementation of that policy to growers. (Id. at pp. 633, 634.) In addition, the Legislature included “specific standards and safeguards . . . in the statute for both the formation of the pest control districts and the exercise of their authority” to protect against the districts “exercising their regulatory power arbitrarily.” (Id. at p. 634.)
Unlike the trial court, we do not construe Regulation 862 as delegating enforcement authority to the governing bodies. Read in context, the requirement a governing body be “capable of ensuring that the requirements of the program are met” (Reg. 862, subd. (b)) means only that the governing body must have the organization and financial resources sufficient to develop a program, monitor its implementation, and comply with the reporting requirements—in other words, be capable of administering a WDMP. The statute is clear that the failure to comply with a WDMP, once it has been approved, “shall be subject to enforcement by the board,” not the WDMP. (Reg. 862, subd. (e).) The enforcement obligation of the WDMP‘s governing body is limited to reporting an uncooperative diverter to the Board. (Reg. 862, subd. (c)(5)(E).) While it is true, as the Sacramento plaintiffs argue, that the governing bodies will decide which growers must take corrective actions at any given time, those decisions must be made in accordance with the WDMP, which in turn must be approved by the Board. The role of the governing body is therefore the administration of a Board-approved policy.15
The Lights contend
Sacramento plaintiffs did characterize the structure of Regulation 862 as a “train wreck” at oral argument, but we take the comment to be rhetoric rather than legal argument.
The Lights also argue that allowing the WDMP‘s to develop their own regulations constitutes an unlawful delegation of the Board‘s responsibilities under Schecter v. County of Los Angeles (1968) 258 Cal.App.2d 391 [65 Cal.Rptr. 739] (Schecter). Schecter involved a dispute between the county‘s civil service commission and its board of supervisors over job classifications in the sheriff‘s department. Pursuant to a commission rule requiring its chief staff member to develop job classifications, subject to the approval of the commission, the chief recommended to the commission the consolidation of certain sheriff‘s department job classifications. The commission rejected the chief‘s recommendation, instead adopting its own, different classifications. When the commission‘s order was sent to the board of supervisors for adoption, the board refused, in effect arguing the commission‘s rule permitted it only to accept or reject the chief‘s recommendation, rather than to develop classifications on its own initiative. (Id. at pp. 393-396.) The court rejected the board‘s position, finding the board‘s interpretation of the regulation to constitute an improper delegation of the commission‘s authority to its staff member. While the commission could rely on employees to “investigate and report the facts and their recommendation” and to draft orders in the first instance, the court held, the members of the commission were required to exercise their own discretion in approving a final order. (Id. at pp. 396-397.) Accordingly, the court affirmed the trial court‘s order requiring the board to adopt the commission‘s classifications.
As is evident from this description, Schecter does not suggest that an unlawful delegation occurred here. In the same way that the civil service commission could use its employees to investigate and draft a proposed classification order, the Board can rely on WDMP‘s to organize and draft programs. So long as the Board exercises its independent discretion in evaluating those programs, no unlawful delegation has occurred. The requirement of Regulation 862 that the Board approve any program implicitly requires just such an exercise of independent discretion.19
The trial court also found no substantial evidence to support the Board‘s finding of regulatory necessity for Regulation 862, concluding the Board had not collected sufficient data to demonstrate the need for the regulation, particularly in light of the purported success of voluntary efforts at mitigating the problem.
Regulation 862 was enacted to protect salmonids in the Russian River stream system from stranding mortality due to sudden drops in water level
The Sacramento plaintiffs fault the four scientific studies reproduced in the record, arguing none of them directly connects salmonid strandings with water diversion for frost protection. The Lights criticize the work of the Fisheries Service in investigating the stranding problem and argue the actual mechanism of salmonid stranding is not well understood. It appears to be unknown, for example, whether stranding occurs because the “stage,” or height, of the water drops below a certain level, or because the drop in stage occurs too quickly, or from an interaction of the two factors—for example, a rapid drop from an already low stage. It appears similarly unknown how such a drop in stage is correlated with the volume of water flowing in the watercourse, which is the actual measurement normally made in monitoring streamflow.
While we acknowledge the validity of some of plaintiffs’ observations about the shortcomings of the current level of scientific knowledge, they do not lead to the conclusion the Board‘s finding of necessity was not supported by substantial evidence. As to the Sacramento plaintiffs’ criticisms, the four studies discussed were not the only scientific evidence in the record. The Fisheries Service study mentioned above summarized the findings of a number of studies of hydrology and salmon biology, explaining the mechanism of salmonid stranding and supporting the Board‘s reasoning with respect
The Lights contend the Board‘s evidence was “concocted,” citing an attorney letter submitted to the Board on behalf of a winery. The letter provides no evidence, or even argument, to refute the genuine nature of the strandings found by the Fisheries Service. Instead, it argues (1) voluntary efforts by growers combined with better coordination of water releases by the SCWA make future similar strandings less likely; (2) the combination of low flow and frost threat that led to the 2008 incident was relatively rare, having occurred in only five of the last 19 years; (3) and the actual cause of the strandings was the failure of the SCWA in April 2008 to meet its “instream flow requirements.”
None of these arguments demonstrate the finding of necessity for the Board‘s regulation was not supported by substantial evidence. As the trial court recognized, it was within the Board‘s discretion to disregard the effects of voluntary efforts to mitigate the problem, since these efforts could be reversed or abandoned in the absence of compulsory regulation.21 In any event, the evidence that voluntary efforts had mitigated the problem in the
E. CEQA*
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III. DISPOSITION
The order granting a preliminary injunction and the judgment granting a writ of mandate are reversed, and the preliminary injunction is dissolved.
Dondero, J., and Banke, J., concurred.
Petitions for a rehearing were denied July 11, 2014, and the opinion was modified to read as printed above. The petitions of all respondents for review by the Supreme Court were denied October 1, 2014, S220256. Baxter, J., was of the opinion that the petition should be granted.
*See footnote, ante, page 1463.