The California Supreme Court, on Aug. 14, declined to review an objection by plaintiffs in the Kern River lawsuit to a lower court’s ruling that paused an order requiring water flows through Bakersfield.
That means the 5th District Court of Appeal will continue toward a hearing on whether the order was appropriate and the other part of the case will continue on its path in the Kern County Superior Court.
It also means the order remains paused, so there is no requirement that the City of Bakersfield keep water in the river for fish populations. What water has been flowing through town all summer was voluntarily put into the river bed by the city.
The city has let enough water trickle down the normally dry river bed so that about 10 cubic feet per second has been flowing at the Bellevue weir next to the Park at Riverwalk on Stockdale Highway. When the injunction was in place, at least 45 cfs was passing over Bellevue so that a minimum of 5 cfs would make it three miles further down the river to the McClung weir.
It’s unclear if the city can maintain those minimum flows as the water year approaches its end Sept. 30 and no one knows what the next water year will bring.
Meanwhile, the fight over the river flow order continues at the 5th District with a hearing anticipated in possibly several months – at the earliest.
Kern County Superior Court Judge Gregory Pulskamp had issued the flow order last fall after the epic 2023 water year brought water and fish back to the Kern River. He ordered the city to maintain flows sufficient to keep the fish alive under California Fish and Game Code 5937, which mandates owners of dams (and weirs) keep enough water below those structures for fish.
Agricultural water districts with Kern River rights appealed the order and the 5th District issued a stay in May.
Pulskamp has continued hearing arguments for the underlying case as the flow order makes its way through the appealate process.
The underlying case was filed in 2022 by Bring Back the Kern along with several other public interest groups and Water Audit California.
That lawsuit argues the city has been derelict in its operation of the river as those operations have not been studied under the Public Trust Doctrine. The Public Trust Doctrine holds that the State of California owns all natural resources on behalf of the public and those resources must be put to the highest beneficial use.
In past years, the highest beneficial uses were considered municipal needs, farming and industry.
In recent years, the environment along with public access and enjoyment have become significant beneficial uses as well. The Bring Back the Kern lawsuit seeks to have the city study its river operations with consideration of the Public Trust.
The city bought a chunk of river water from Tenneco West back in 1977. It also bought most of the infrastructure, including the weirs, and the riverbed itself from about Hart Park out to near Enos Lane.
Under the terms of that purchase, the city agreed to honor more than 100 years of agreements, decrees and use rights – known as the “law of the river”– to get water to the other river owners.
Attorneys for Bring Back the Kern say those legal layers over the river are essentially contracts and don’t trump the Public Trust Doctrine. A case management conference is scheduled for November 14.
