Waters of Soquel Creek Stream System, In re
Citation | 79 Cal.App.3d 682,145 Cal.Rptr. 146 |
Court | California Court of Appeals |
Decision Date | 11 April 1978 |
Parties | In the Matter of the Determination of the RIGHTS OF the VARIOUS CLAIMANTS TO the WATER OF SOQUEL CREEK STREAM SYSTEM IN SANTA CRUZ COUNTY, California. The CHY COMPANY, Claimant and Respondent, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant. Civ. 41457. |
Downey, Brand, Seymour & Rohwer, James M. Day, Jr., Sacramento, for claimant and respondent.
Evelle J. Younger, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Roderick E. Walston, Richard C. Jacobs, Deputy Attys. Gen., San Francisco, for defendant and appellant.
Pursuant to California Water Code section 2525, the City of Capitola, located in Santa Cruz County, California, filed a petition with the State Water Resources Control Board (hereinafter referred to as the Board) requesting a determination of the rights of various claimants to the waters of the Soquel Creek Stream System. The Board found that the public interest and necessity would be served by a determination of the water rights involved, made an order granting the petition and made proper arrangements to proceed. As required by the Water Code ( ), the Board investigated the Soquel Stream System and in July 1973 published the data, maps and information gathered. Pursuant to section 2700, after completing the preliminary procedures, it made an order of determination which, together with the evidence considered by the Board, was filed with the Clerk of the Superior Court of Santa Cruz County.
The Board obtained an order from the Santa Cruz County Superior Court setting a time for hearing the order of determination. Exceptions to the order were filed by respondents J. M. and Josephine Seropan and the Chy Company. The superior court hearing was held on November 20, 1975.
The Board's order of determination concluded that respondent Chy Company was entitled to the following allocations:
1. 1,000 gallons per day (gpd) in first priority for existing domestic uses;
2. 1,880 gpd in fourth priority for potential irrigation of riparian lands;
3. 0.36 cubic feet per second for existing riparian industrial uses in the second priority;
4. 4,000 gpd in the second priority for potential industrial or domestic uses; and
5. 400,000 gpd in the fourth priority for potential irrigation of riparian lands.
The order of determination further concluded that the respondent Seropans were entitled to the following allocations:
1. 500 gpd in the first priority for existing domestic uses;
2. 2,900 gpd in the second priority for existing irrigation purposes;
3. 500 gpd in the second priority for potential domestic use; and
4. 2,900 gpd in the fourth priority for potential irrigation of riparian lands.
The respondents excepted on the grounds (1) that the Board lacks the power to quantify riparian rights not now being used; (2) that the Board acted improperly in placing unexercised riparian rights in the fourth priority class, below appropriative rights; and (3) that, for the same reason, unexercised or dormant riparian rights must be placed on the same priority as exercised or active riparian rights.
The Board's order of determination placing respondents' dormant riparian rights in the fourth priority class would prohibit their right to use water in the future for beneficial and reasonable uses to which their land may be made adaptable until the allocations previously made to the first three priority classes had been filled. Additionally, riparian owners are limited to specific amounts of water for future use by the Board's order, even though more water might be used beneficially and reasonably and to which riparian land might be made adaptable. If respondents' exceptions were sustained, however, the riparian claimants who are now exercising their rights, and those who have not yet done so, would be able in the future to divert a portion of the available water needed to satisfy reasonable and beneficial uses then commenced on their riparian lands, so long as such uses would be correlative to similar uses of the other then existing riparian claimants. The resolution by the court of the exceptions filed by respondents obviously will have a significant effect on the use of water from the Soquel Creek Stream System.
Judge Charles Franich sustained the respondents' exceptions in all respects. He concluded that the Board lacked the power to quantify unexercised riparian rights, that the Board erred in assigning unexercised riparian rights a priority different from riparian rights now being exercised, and that both exercised and unexercised riparian rights must receive a priority higher than appropriative rights.
The trial court remanded the matter to the Board for the preparation of a revised decree consistent with the court's decision. The Board prepared such a revised order and the court entered the decree based upon the revised order. The Board appealed.
Article X, section 2 (formerly art. XIV, § 3) of the California Constitution reads:
This section, added to the California Constitution by amendment in 1928, seems to grant riparian owners all the water which they may reasonably and beneficially use for the purposes for which their lands are, or may be made adaptable. The Supreme Court has so held. In Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 525, 45 P.2d 972, 986, the court stated that this constitutional provision ...
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