Public interest groups that succeeded in getting a court order mandating 40% of the Kern River’s flows be kept in the river to maintain fish, don’t want to be drawn into a fight over water rights created in the wake of that order.
“Fish have no part in the argument between beneficial users. To a fish there is only one question: is there sufficient water to live in good condition?” concludes a motion by the public interest groups opposing an effort to overturn or reconsider the court’s fish flow order.
Agricultural water districts with long held rights to the river were incensed when the City of Bakersfield used the fish flow order to increase its take of river water and jump the line ahead of other users.
Calling the city’s move “The biggest water heist on the river in 100 years,” the ag group filed motions to stay or reconsider the judge’s fish flow order.
The ag groups argue that Bakersfield unilaterally created a new right to river water, taking more than its share, and gave itself priority over other rights holders, ignoring more than 100 years of decrees and contracts.
For its part, Bakersfield argues that it is simply following Kern County Superior Court Judge Gregory Pulskamp’s order, which states the city’s water demands should not be impacted by the fish flows and that domestic use comes ahead of other uses, such as agriculture.
“If the City had decided to distribute water remaining after the deduction of water supplies for fish flows strictly through the regular, historic priority of water rights, the City’s supplies would be significantly limited and reduced, and the City would not have enough water to satisfy its domestic demands,” Bakersfield’s attorney Colin Pearce wrote in a motion opposing the ag district’s attempt to have the order reconsidered.
That’s not a new right, Pearce argues in the city’s motion. It’s just making sure Bakersfield residents aren’t shorted, per Pulskamp’s order.
The public interest groups are “agnostic” on the back and forth over the rights issue, according to its motion.
But: “To be clear, plaintiffs did not intend through their agreeing to the City’s request regarding its municipal flows to grant the City any new entitlements,” the groups’ motion states.
To that end, they wouldn’t object to some “modification” of the 40% fish flow order, according to their motion, but the fundamental mandate that the river retain enough water for fish must remain in place.
Judge Pulskamp will hear arguments on the motion to reconsider at 9 a.m. Dec. 21.
