Several public interest groups sued the City of Bakersfield Nov. 30 alleging the city has been derelict in its operation of the Kern River by diverting most of its flows to agriculture and other uses leaving a dry riverbed through the heart of town.
“The river is dry, but not because of a lack of water,” said Stephen Montgomery,
president of the Kern Kaweah Chapter Sierra Club, one of the plaintiffs in the lawsuit. “The river is entirely diverted into canals with no prioritization of people or the environment.”
Even though the city operates the river per a century of agreements and judicial decrees, the lawsuit states, the city still has an obligation to study the harm those diversions may cause to the environment, fisheries and even the recreational value of a flowing river.
The case hinges on a concept known as the “public trust,” under which the state holds all natural resources, including water, in trust for the most “beneficial use” for the public. That includes water covered by 100-old rights, which includes most of the rights to waters on the Kern.
The diversion of water under those rights must be weighed against what’s considered the most beneficial use on behalf of the public, according to the lawsuit. In past decades, agriculture, municipal and industrial uses topped beneficial uses. But that may not be the case nowadays.
“We shouldn’t have had to file this lawsuit,” Attorney Adam Keats wrote in an email. Keats represents the public interest groups including, Bring Back the Kern, the Kern River Parkway Foundation, Kern Audubon Society, Sierra Club and Center for Biological Diversity. Water Audit California is also listed as a plaintiff and is represented by William McKinnon.
“As far as we can tell the city wants to do the right thing and run water down the river. But sometimes government needs a push,” Keats continued in his email. “We’re hoping this is ends up being a gentle push but if it requires a big fight, we’re ready for it.
“Because the community overwhelmingly wants water in the river, our shared environment demands it, and the law is plainly on our side.”
The city had not been served with the lawsuit by late afternoon Nov. 30 so had no comment.
The lawsuit doesn’t demand money. Rather it seeks to stop the diversions temporarily while the court orders the city to study how river operations have affected fisheries, the environment and recreational uses.
The lawsuit also invokes California Fish and Game Code 5937, which states that enough water has to be allowed downstream of dams to “keep in good condition any fish that may be planted or exist below the dam.”
It was that code that Natural Resources Defense Counsel used to successfully sue the Federal Government over the San Joaquin River. That river had been essentially dried up for 60 miles after the Friant Dam was built in the 1942.
Keats has also represented the public interest groups in ongoing state hearings over the Kern River.
In 2007, a judge found that some portion of water on the Kern was deemed forfeit for lack of use. But that judge didn’t say how much water, nor who should get it. That question was kicked up to the state Water Resources Control Board, which finally began holding hearings on the issue in the summer of 2021.
Those hearings are still ongoing but the hearing officer said she would not consider the issue of “public trust” until after deciding whether water is truly available, and, if so, how much.
Rights holders on the river include Bakersfield, the Kern Delta Water District, Buena Vista Water Storage District, Kern County Water Agency and the North Kern Water Storage district, which has a contractual right to some water.
When the city bought its rights to the river in 1976, it also bought the riverbed, lands adjacent to the river, all the head gates and weirs along the river and took over as operator and official record keeper of the Kern.