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North Kern Water Storage Dist. v. Kern Delta Water Dist.

ELR Citation: 37 ELR 20007
Nos. No. F047706, (Cal. App. 5th Dist., 01/02/2007)

An appellate court reversed a lower court decision concerning the forfeiture of certain previously appropriated waters of the Kern River. The parties' primary dispute concerned the theoretical entitlement of a junior user versus the volume of water actually available to that user on a given day. The court held that the actual entitlement of a junior appropriator must include all water in the river to which it has a right of access, including release water actually available to it. In determining the amount forfeited from junior appropriative rights, each right is exercised in turn with respect to water actually available to it, and it is the failure to fully exercise each right to the available water that is the cause of forfeiture. In sum, what is forfeited is the right to appropriate water in excess of historical beneficial use as reflected in the forfeiture period. As to what to do with the forfeited water, the trial court incorrectly determined that the forfeiture created unappropriated water subject to appropriation through the State Water Resources Control Board (SWRCB) process; instead, the initial determination whether the forfeiture creates an allocable excess is reserved in the first instance to the SWRCB.