Kern River combatants are headed back to court where a local advocacy group hopes to force the City of Bakersfield to goose up flows, which were cut to a trickle leaving piles of dead fish west of Bakersfield.
The hearing is set for May 9 at 8:30 a.m. in Division J before Kern County Superior Court Judge Gregory Pulskamp.
“Nobody should be happy with the condition of the Kern River right now; the people deserve and the law requires a flowing river, not a couple of stagnant pools with gasping and cooking fish,” wrote Attorney Adam Keats in an email.
Keats represents Bring Back the Kern and a coalition of other public interest groups in a lawsuit with Water Audit California against Bakersfield that seeks to have the city study how its water diversions impact the environment. The city owns water rights to the Kern as well as the river bed itself and six weirs that it operates from about Hart Park west to Enos Lane.
After last winter’s epic runoff brought fish back to the normally dry Kern River through Bakersfield, the coalition won an injunction mandating the city keep enough water in the river to “keep fish in good condition,” per California Fish and Game Code 5937.
The city, which operates the river according to more than 100 years of agreements and contracts, announced it would keep enough water in the river so that 5 cubic feet per second (cfs) reached the McClung weir, three miles west of Allen Road.
That choked flows farther west down to a dribble and fish died off en masse, sparking frustration among residents.
Keats filed a motion to compel the city to keep flows at 40% of a moving, three-day average of the “computed natural flow” where the river crosses a measuring station called First Point near Hart Park. That would mean, for example, if the computed natural flow is 500 cfs, then at least 200 cfs would stay in the river to flow past McClung weir. The remainder would be divvied up by rights holders.
Opposition motions from the city and other Kern River rights holders slam the motion as overreaching, ignorant of the rights structure on the river and unfounded in scientific need.
Keats responded with a motion stating that water rights and contracts don’t trump California Fish and Game Code 5937, which Pulskamp relied on when he he issued the injunction last October.
“The court provided a gentle nudge (to keep water in the river) in the form of the preliminary injunction,” Keats wrote in an email. “Sadly, it’s clear that more is required to get the City to change its ways.”
