Fish to receive 40% of Kern River flow under judge’s order

November 14, 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

Share This: 

A judge’s order signed Tuesday ensures there will be at least some water flowing in the Kern River through Bakersfield in perpetuity. Unless, of course, it’s overturned.

Kern County Superior Court Judge Gregory Pulskamp signed an order that requires 40% of the Kern River’s flow to remain in the river to keep fish populations healthy.

This order is the implementation of an injunction granted by Pulskamp October 30 mandating that some amount of water must flow through the river for fish populations.

Pulskamp instructed the City of Bakersfield and plaintiffs to work out how much water should be kept in the river for fish, which is what Tuesday’s implementation order lays out.

The implementation order was signed despite indications from several agricultural water districts with rights and contracts to Kern River water that they had objections and may appeal the injunction.

Attorney’s for those ag water districts had argued in court that more than 135 years of legal rulings, decrees and contracts enshrine their rights to Kern River water and govern how the city must operate the river. The city inherited those obligations when it bought its river rights, most of the river bed, canals and some weirs from Tenneco West in 1976, they argued.

An attorney for one of the water districts was not available to comment on this latest order.

“This is just a preliminary initial step,” said Colin Pearce, an attorney who represents Bakersfield on Kern River issues. “We envision continuing to work with the plaintiffs and share information with them to implement the injunction. Forty percent of the river’s flows for fish seemed reasonable and acceptable because it doesn’t impact the city’s water supply and the city’s needs are still protected.”

Adam Keats, an attorney who represents one set of plaintiffs, wrote in an email he didn’t see a problem with the judge not waiting to hear objections before implementing the injunction.

“The court ordered the City and plaintiffs to work out a plan,” Keats wrote. “We did exactly that, and incredibly fast, as was required given the needs of the river.”

It’s hard to say exactly how much water this order will put in the river as the Kern is extremely mercurial, flowing at 15% of normal one year and 400% of normal the next.

The city and plaintiffs agreed to start by using the river’s average flow of 726,000 acre feet per year, which converts to 1,000 cubic feet per second. Under that scenario, fish would get 400 cfs, the city would take its cut of 180 cfs and that would leave 420 cfs for ag users. If the river’s flow is lower than 1,000 cfs, that, of course, would lower all the shares.

This order stems from a lawsuit filed against Bakersfield in 2022 demanding it evaluate the environmental impact of river operations, which have left the riverbed bone dry through Bakersfield in most years.

A key tenet of that lawsuit and subsequent injunction is that dam owners/operators are obligated to keep downstream fish populations healthy per California Department of Fish and Game Code 5937. Plaintiffs argued the city, which owns or operates six weirs on the river from Hart Park to Enos Lane, had been derelict in that duty.

Once the river filled with this year’s epic runoff and fish reappeared, the plaintiffs filed for an emergency injunction to keep the flows going.

“We’re thrilled to see the City shift its focus, at least for the time being, from fighting us in court to working with us to keep the Kern flowing,” attorney Keats wrote in an email.  “We hope for and would welcome the same from the ag districts, but we’re not holding our breath for that.”

Keats represents several 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.

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.


Receive the latest news

Subscribe To Our Weekly Newsletter & Get Email Notifications

Enter your email address to receive INSTANT ALERTS of new articles and to be added to SJV Water’s WEEKLY NEWSLETTER