1. California Reasonable Use Law: Lessons from the Russian River Frost Protection Litigation PAUL STANTON KIBEL Golden Gate University School of Law / Water and Power Law Group Panel on The Conflict Between Vineyards and Salmon November 2014 CLE Conference on California Water Law San Francisco, California 1

2. California Reasonable Use Law Paul Stanton Kibel 2014 California Court of Appeal Decision in Light v. SWRC B Foundation of California Reasonable Use Law ►Article X, Section 2 of the California Constitution (“The right to water…does not and shall not extent to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.”) ►Section 100 of the California Water Code (“The right to water…does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.”) 2

3. California Reasonable Use Law Paul Stanton Kibel 2014 California Court of Appeal Decision in Light v. SWRC B Application of California Reasonable Use Law to Riparian Water Rights ► 1926 California Supreme Court Decision in Herminghaus (impetus for 1928 Constitutional Amendment on reasonable use of water) involved riparian water rights ► Petitioner in 1976 California Court of Appeal Decision in Forni (upholding application of California reasonable use law to frost protection diversions) involved challenge by riparian water rights holder 3

4. California Reasonable Use Law Paul Stanton Kibel 2014 California Court of Appeal Decision in Light v. SWRCB Causal Link Between Salmon Kill-Offs and Frost Protection Diversions ► Per Forni, SWRCB not required to establish causal link with salmon mortality to regulate simultaneous frost protection diversions that significantly reduce instream flow pursuant to California reasonable use law ►NMFS investigations and analysis found simultaneous frost protection diversions in 2008 contributed to contemporaneous salmon fish kill (NMFS expertise on salmon issues as substantial evidence to support determination of causal link) 4

5. California Reasonable Use Law Paul Stanton Kibel 2014 California Court of Appeal Decision in Light v. SWRCB CEQA Compliance and Analysis of Impacts of “Non-Frost Protection” Diversions on Russian River Salmon SWRCB regulation (proposed CEQA action) narrowly tailored to address particular fisheries effects in Russian River watershed of simultaneous diversions for frost protection rather than more general fishery effects of all diversions in the watershed 5

6. California Reasonable Use Law Paul Stanton Kibel Pre-Light Reliance on California Reasonable Use Law to Regulate Agricultural Water Use to Protect Instream Resources 1986 Racanelli Decision in United States v. SWRCB (182 Cal.App.3d 82) “Here, the [SWRCB] determined that changed circumstances revealed in new information about the adverse effects of the project upon the Delta necessitated revised water quality standards. Accordingly, the [SWRCB] had the authority to modify the projects’ permits to curtail their use of water on the ground that the projects’ use and diversion of the water had become unreasonable.” Id. at 130. 6

7. California Reasonable Use Law Paul Stanton Kibel Pre-Light Reliance on California Reasonable Use Law to Regulate Agricultural Water Use to Protect Instream Resources 1980 Decision on Alternate Point of Diversion in Environmental Defense Fund v. East Bay Municipal Utility District (26 Cal.3d 183) California Supreme Court holds that SWRCB and California Courts have concurrent jurisdiction to prevent unreasonable methods of water diversion, and on this basis grants petitioner leave to amend complaint to allege proposed point of diversion was unreasonable given evidence that alternative point of diversion reduced impact on fisheries 7

8. California Reasonable Use Law Paul Stanton Kibel Pre-Light Reliance on California Reasonable Use Law to Regulate Agricultural Water Use to Protect Instream Resources 1976 California Court of Appeal Decision in SWRCB v. Forni (54 Cal.App.3d 743( “…the claim that respondent’s direct diversion of water constitutes an… unreasonable method of use of water is predicated on the very premises that the direct pumping results in a great temporary scarcity of water during the crucial frost period…The direct diversion of water for frost protection in the crucial period constitutes an…unreasonable method of use of water within the purview of the Constitution and statutory provisions.” 8

9. California Reasonable Use Law Paul Stanton Kibel Holding in Light as Precedent for Expanded Use of California Reasonable Use Law 2011 Delta Watermaster Report to SWRCB on The Reasonable Use Doctrine & Agricultural Water Use Efficiency “The underlying premise of this report is that the inefficient use of water is an unreasonable use of water. Accordingly, the Reasonable Use Doctrine is available prospectively to prevent general practices of inefficient water use…” 9

10. California Reasonable Use Law Paul Stanton Kibel Holding in Light as Precedent for Expanded Use of California Reasonable Use Law California’s Sustainable Groundwater Management Act (Enacted August 2014) ►Uncodified Findings (“The people of the state have a primary interest in the protection, management and reasonable beneficial use of the water resources of the state, both surface and underground…”) ►Section 10720.1(b) on Legislative Intent: (“To enhance local management of groundwater consistent with…Section 2 of Article X of the California Constitution.”) ►Section 10720.5(a) (“Groundwater management pursuant to this part shall be consistent with Section 2 of Article X of the California Constitution.” 10

11. California Reasonable Use Law Paul Stanton Kibel Holding in Light as Precedent for Expanded Use of California Reasonable Use Law California’s July 2014 Drought Emergency Regulations 23 CCR §878.1(c) (“Given the essential nature of water in sustaining human life, use even under a more senior right for any other purpose when domestic and municipal supplies required for minimum health and safety needs cannot be met is a waste and unreasonable use under the California Constitution, Article X, § 2.”) 11

12. California Reasonable Use Law Paul Stanton Kibel Final Thoughts on the “Terms” of the Reasonable Use Debate California Reasonable Use Doctrine Versus California Reasonable Use Law ►Black’s Law Dictionary Defines “Doctrine” as a “legal principle that is widely adhered to” ►Black’s Law Dictionary Defines “Law” as “The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action” 12