Court to consider cutting water diversions out of Kern River

October 3, 2023
by Lois Henry
The Kern River west of Allen Road is typically dry (top 2020) except in heavy water years (bottom 2019). A judge's order signed Nov. 14 mandates at least 40% of the river's flow must remain the river for fish populations. Lois Henry / SJV Water
Lois Henry

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A preliminary injunction that could cut water being taken out of the Kern River if those diversions are harmful to fish will be taken up Friday, October 13 in a Kern County courtroom.

The request for the injunction was filed in August by a group of entities suing the City of Bakersfield for what it says is gross mismanagement of the river. 

The injunction request seeks a court order to protect fish by ceasing, or reducing, flows into canals that take water away from the river, to mostly agricultural uses throughout the county, until the main lawsuit is concluded. 

Such a move could severely endanger drinking water supplies for Bakersfield residents, according to opposition papers filed by Bakersfield’s attorney Colin Pearce in opposition to the injunction. 

“The Kern River is the primary and typically only source of water for Bakersfield’s residents,” the motion states.  

A companion opposition motion was filed by several so-called “intervenors,” including Kern Delta Water District, Kern County Water Agency and the Buena Vista, North Kern and Rosedale-Rio Bravo water storage districts.

The intervenors argue that while the plaintiffs’ injunction seeks to maintain the “status quo” of water in the Kern River, the current heavy flow through Bakersfield is not the typical state of the river.

The actual status quo of the river, they argue, is how it has been operated under a multitude of rights, decrees and contracts established over time leading to typically much “drier conditions.”

That’s exactly the problem, said Bill Cooper, a co-founder of the Kern River Parkway Foundation, one of the groups suing Bakersfield.

“There’s always been water in the river, even in drought years,” Cooper said. “It’s just a matter of where it goes and who gets it. These 150-year old rights decisions have outlived their usefulness.

“It’s  time to re-evaluate how the river operates and where the water goes.”

Representatives from the city and the intervenor group declined to comment on an ongoing case.

A hydra of canals takes water out of the Kern River under a series of rights, court decisions and contracts known as the Law of the River.

The plaintiffs – Bring Back the Kern, the Parkway Foundation, Kern Audubon Society, Water Audit California, Center for Biological Diversity and the Sierra Club – have long stated their goal is not to keep all Kern River flows in the river bed, depriving current water users.

Their goal is to keep enough water in the river through Bakersfield to provide habitat for fish and other natural resources, according to court filings.

“We’ve never argued that we want to deny water to anyone,” Cooper said. “We’ve argued they can recover the water further downstream. That might cost some people a little more money but that’s the way it goes.”

Bakersfield’s opposition, however, states the requested injunction doesn’t “…contain any allowance or exception for the City’s diversion of water for domestic uses, including to provide a drinking water supply to City residents.”

Further, the document argues, it is up to the plaintiffs to provide evidence of how much water is needed in the river to “maintain fisheries in good condition,” per California Fish and Game Code 5937.

That code states that the owner of a dam must keep the fisheries below it in “good condition.” The plaintiffs have argued that six weirs owned and operated by Bakersfield to divert water from the Kern River are essentially dams, so Code 5937 must be applied by the court.

With the massive, ongoing runoff that has kept water flowing in the river this year, fish populations have been rejuvenated. The plaintiffs argue those populations must be kept alive while their main case makes its way through the system, hence the injunction request.

Their main lawsuit, filed in November 2022, asserts Bakersfield has been derelict in its operation of the river and demands the city conduct an in depth study of the harm that diverting so much water has caused to the environment, fisheries and the recreational value of a flowing river.

The case relies on “public trust” law, which states that California holds all natural resources in trust for the most “beneficial use” of all the public.

That lawsuit states that even though the Kern has been operated under layers of court decisions and decrees starting 137 years ago, those rights have never been weighed against the most beneficial use on behalf of the public.

SJV Water is an independent, nonprofit news site dedicated to covering water in the San Joaquin Valley. Get inside access to SJV Water by becoming a member.


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