Several public interest groups have issued a direct challenge to Bakersfield over the Kern River alleging the city has not lived up to its responsibilities to address the public trust.
Water Audit California, an advocacy group based in Napa, sent a letter to the Bakersfield Water Resources Department July 27 demanding the city conduct a study of how its diversions from the river are impacting the public trust and determine ways to avoid those impacts.
The letter stated if the city didn’t authorize the study before September 15, Water Audit would sue.
That Sept. 15 deadline has come and gone without a lawsuit but the city did respond in a Sept. 20 letter that it had already begun a “Master Plan” to study how the city can best manage and protect its water, including the city’s slice of the Kern River.
“The City intends to address and study the issues raised in your letters as part of that Master Plan,” according to the letter. SJV Water has not been able to find any documents outlining the scope and timeline of the “Master Plan” study.
“That seems like a step in right direction,” said Adam Keats, an attorney representing several local groups including Bring Back the Kern and the Kern River Parkway Foundation. “The question is, when will this study be finished and is the city going to keep its foot on the river’s throat in the meantime.”
The challenge to Bakersfield is a change in stance by the public interest groups, which had been allied with the city in its quest to get water into the riverbed through town as part of hearings by the State Water Resources Control Board.
Keats represents the public interest groups in those hearings, which are looking at whether there is any available water on the Kern River as the result of a 2007 forfeiture of some river rights by the Kern Delta Water District as well as whether there is any high flow water available.
The city applied for the forfeited water and pledged to run it down the riverbed. The public interest groups supported Bakersfield and argued the state is obligated to consider the public trust in its proceedings.
All natural resources, including water, are held in “trust” by the state of California. Rights holders can use the water, but the state has an obligation to protect the resource for the public with an eye toward supporting natural fisheries, habitat, recreation and general quality of life, Keats said.
The hearing officer, however, said public trust issues would not be considered until after she had ruled on both the forfeiture and high flow issues. Those hearings began last August and are continuing through this fall.
That deferment of public trust issues is partly behind this new challenge, Keats said.
“It’s time to get off the dime,” said Bill Cooper, a board member with the Kern River Parkway Foundation and longtime river advocate. “If the city is working on a plan, it needs to be scientifically based and has to quantify how the river, in our opinion, has been mismanaged and how we got to where we are with an urban river that’s an eyesore.”
Though most of the diversions off the river are laid out in long established agreements and court decrees, Bill McKinnon, an attorney with Water Audit, said the city, which owns the river channel, head gates and weirs, still has a legal obligation to evaluate how those diversions are impacting the public trust.
“The law requires the City of Bakersfield to make the inquiry to see whether there is any way to mitigate its injury to the public trust,” McKinnon said. “No one has ever done that. In all those decisions, all those allocations of the Kern River no one ever said “What is in the public interest here?'”
That doesn’t mean cutting off diversions for agricultural uses, he said.
“No one in their right mind would say ag interest aren’t important, they are,” he said. “But is there a way to do this better. If not, at least we made the inquiry.”
City officials declined to comment on the Water Audit demand letter as did North Kern Water Storage District, which has also applied for the forfeited water and argued there is no “new” water on the Kern River.