High water in the Kern River brings new legal issues as local group seeks to keep water in the riverbed

August 10, 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 local group that’s suing the City of Bakersfield for how it manages the Kern River, is seeking a court order that would force the city to keep water in the normally dry riverbed as this year’s massive runoff begins to recede.

“The relief sought is narrowly focused,” states the motion for a preliminary injunction filed Wednesday by attorneys for Bring Back the Kern. “It does not seek to change the City’s management of the Kern River allocations, but only to restrain the City from diverting water that is required to keep in good condition the fish that currently exist below each of the Weirs, a clear and unequivocal dictate of California law.”

A hearing has been requested for Sept. 6.

That’s the same day a hearing already is scheduled to decide whether several other Kern River interests, or rights holders, will be allowed to join the case as intervenors. Those interests include the Kern County Water Agency, Kern Delta Water District and the Buena Vista, North Kern and Rosedale-Rio Bravo water storage districts.

An attorney for the city said he was still reviewing the newly filed motion for injunction. Attorneys representing Bring Back the Kern were unavailable for comment Wednesday.

The motion states that Bakersfield fully, or partly, owns the six main diversion structures, or weirs, on the river from just west of Hart Park through town all the way to near Enos Lane. And that the city is the sole operator of those weirs on behalf of itself or other Kern River rights holders.

Because the weirs are above six feet high, according to the motion, they are, effectively dams. Under California Fish and Game Code 5937 that means the dam owner is obligated to maintain fisheries that exist above and below dams.

“In the vast majority of years, the Kern River is a bleak, dry and dusty riverbed devoid of fish,” the motion states. “This year is different.”

The water that has filled the river almost to overflowing starting in March has brought with it fish, which means Bakersfield now has to abide by Fish and Game Code 5937, according to the motion.

Fish and Game Code 5937 is the same statute that was used to sue the federal Bureau of Reclamation over its operation of Friant Dam, which dried up the San Joaquin River for 60 miles and destroyed the Chinook salmon fishery. In that case, environmental groups succeeded in forcing a settlement in 2009 to restore the river and salmon population, a program that is still ongoing.

As long as the Kern River was dry, the issue of maintaining a fishery was somewhat theoretical. But that changed with this year’s epic storms.

Declarations included with Bring Back the Kern’s motion for injunction state that fish have been observed, caught and videotaped throughout the full stretch of the river.

A fisherman identified as Bill Ritchey is said to have caught a one- to two-year-old large-mouth bass on July 27, 2023 near the Calloway Weir, according to the motion. And fish were seen jumping in the river between the Allen Road and Stockdale Highway bridges, the motion states.

“There is no reason for the City to be permitted to sacrifice the Kern River and its fish populations through its operation of the Weirs,” the motion states.

The motion adds that the city can keep enough water in the river for fisheries and make deliveries to rights holders, mostly agricultural water districts, by changing the diversion point downstream, or west of the city.

In fact, a series of six wells were built in 2000 using Proposition 13 money. They are dotted along the northern edge of the river between Calloway Drive and Allen Road and were built for the exact purpose of moving water back and forth between the river and the Cross Valley Canal, which runs parallel to the river. That project, spearheaded by the Kern County Water Agency, was meant to keep a minimum flow in the river through the heart of Bakersfield and still supply ag water districts.

The wells were never used for that purpose, however, and the river has remained dry through Bakersfield in all by the wettest years.

The lawsuit filed by Bring Back the Kern against the City of Bakersfield is separate from a Kern River water rights proceeding before the state Water Resources Control Board.

In that action, various agricultural water districts and Bakersfield are fighting over two pots of Kern River water. One pot is leftover from a forfeiture case in which Kern Delta lost a portion of its Kern River water right. The other pot concerns high flow water, or water that’s in excess of all existing rights, and flows out of Kern County through the intertie and into the California Aqueduct, which happened this year for the first time in 17 years.

Final hearings in that state action were held in August 2022 and the evidentiary phase was closed in September.

The Kern Water Bank Authority, which also applied for high flow water in the state proceedings, filed a motion in July to reopen the state hearings so it could provide evidence about how river water was handled this year.

Both the Kern Water Bank and Rosedale-Rio Bravo obtained temporary permits that allowed them to take 14,250 acre feet and 1,000 acre feet, respectively, between May 26 and June 9 this year that otherwise may have left the county.

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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