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Last modified
5/14/2010 8:58:17 AM
Creation date
9/30/2006 10:18:55 PM
Metadata
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Publications
Year
1995
Title
Califormia Water
CWCB Section
Interstate & Federal
Author
Arthur L. Littlewort
Description
History, overview, and explanation of water rights and legislation of California
Publications - Doc Type
Historical
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<br />City of Chino, et al.. (1978) San Bernardino Superior Court, No. RCV <br />51010, formerly No. 164327, illustrates this point. There, the pumpers <br />were divided into three separate "pools" (agricultural overlying, <br />nonagricultural overlying, and appropriative). Each pool was allo- <br />cated a share of the total basin supply and treated quite differently <br />with respect to the determination of rights, cutbacks, replenishment <br />charges, and transfers. <br /> <br />Physical Solutions <br />A "physical solution" is a practical type of relief. This doctrine permits <br />a court to order the implementation of a water plan designed to meet <br />the needs of the parties in the most efficient and economical way, to <br />maximize the use of available water for all, and to avoid the waste <br />that might otherwise result from a technical and strict enforcement <br />of rights. The essence of any prior rights, however, must still be pro- <br />tected. Lodi, pages 339-40. Physical solutions extend to percolating <br />waters as well as to watercourses. <br />Physical solutions are usually in the form of a conditional <br />injunctive decree. Gerlach Livestock Co. v. United States (1948) <br />76 F.Supp. 87, 94-95. California courts favor this approach to water <br />rights, and a trial court is bound to seek a physical solution if it is <br />available. Lodi, pages 339-340. Physical solutions are enforceable by <br />the courts and do not require consent of all parties. Lodi, page 341. <br />Physical solution is discussed more fully in chapter 6. <br /> <br />Adjudication of Water Rights <br />There are three procedures under which rights to the use of water <br />may be adjudicated: (1) a civil action in which there is no participa- <br />tion by state officials (unless the state is a party to the action); <br />(2) civil actions in which reference is made by the court to the State <br />Board pursuant to statutory authorization; and (3) a statutory adjudi- <br />cation procedure which includes an administrative determination of <br />water rights by the State Board and a subsequent court adjudication <br />in a civil action. <br />Statutol}' Adjudication Procedure. A statutory adjudication begins <br />with an administrative determination by the State Board. This pro- <br />cedure applies to watercourses and their tributaries, but specifically <br />excludes percolating groundwaters. Water Code ~ 2500 et seq. Any <br />water rights claimant may petition the State Board to commence a <br />general adjudication of the stream system in which a right is claimed. <br />The State Board proceeds, after giving notice to all interested parties, <br />by receiving claims, conducting an investigation, holding hearings, <br />and making an order of determination. Water Code ~ 2525-2783. <br /> <br />"Statutory adjudications" are before the <br />State Board and confirmed by a court. <br /> <br />Statutory adjudications are confined to <br />streams; the procedure excludes percolat- <br />ing groundwater. <br /> <br />Chapter 2 Water Rights in California 65 <br /> <br />
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