The public can weigh in on the Kern River at an upcoming hearing but the proceeding will be very narrowly focused, according to a ruling released Wednesday.
Too narrowly focused, according to one attorney representing several nonprofits hoping to bring water back to the river through town on a regular basis.
“We have a ruling that apparently values an ‘orderly proceeding’ over public participation and the need to put water back in the river,” attorney Adam Keats wrote in an email. He referred to a ruling by the State Water Resources Control Board Administrative Hearing Office that lays out issues up for consideration at a Dec. 9 hearing.
The hearing will be online and the public may comment. (Details on how to submit comments are in the sidebar.)
But, according to Wednesday’s ruling, the topics will be tightly focused on only a few questions, including:
1. Is there available water on the Kern River based on a 2007 forfeiture of water rights by Kern Delta Water District?
2. If so, how much is available considering other existing water rights and uses? Are all those rights and uses legitimate?
Left out of the Dec. 9 hearing is the Public Trust Doctrine, the concept that the state must make sure natural resources are used to the greatest beneficial use on behalf of the public. The Administrative Hearing Officer specifically deferred consideration of how Kern River water availability and rights questions impact the public trust to a later date.
Keats felt that was simply delaying a question that has already been delayed for too long.
“The ruling appears to say that if there is no water to appropriate, there will be no assessment of public trust resources at all,” Keats wrote. “It’s hard to read this and not see a process that’s going to take another 10 or 20 years to resolve. Isn’t it obvious that we don’t have that kind of time?”
This all stems from the 2007 forfeiture, which went to the state Water Board. In 2010, the Water Board ruled there was some unappropriated water but based its finding on high flow years when Kern River water left the county. It didn’t say how much water, if any, was available due to the forfeiture, nor who should get it. This hearing is the “next step” from that decision 11 years ago.
Several entities applied for any water deemed available. Those included the City of Bakersfield, North Kern Water Storage District along with the City of Shafter, the Kern County Water Agency, the Buena Vista Water Storage District, the Kern Water Bank and the Rosedale-Rio Bravo Water Storage District.
Only Bakersfield has pledged to run the water down the riverbed through town. Several local and other nonprofits, including Bring Back the Kern, hired Keats and became a party to action in support of Bakersfield’s bid for the water.
Bakersfield had argued that the forfeiture created “new” water, which the Water Board has authority to reassign. North Kern, meanwhile argued the forfeiture didn’t result in any new water as existing rights holders had absorbed that water under longstanding river operations.
“It’s unfortunate that the (Administrative Hearing Officer) is deferring consideration of Public Trust issues,” wrote Bakersfield’s attorney Colin Pearce in an email. “But the AHO also ruled that she will do exactly what we asked her to do: Assume jurisdiction over the forfeited water and determine whether North Kern can continue to divert the water out of the river, or whether the water should be put to another use.”
Though these are complex legal issues, the public has a right to comment during any and all phases of these hearings.
“The more the public speaks up about their desire for a flowing river, the more likely that is to be a reality,” Kelly Damian a spokesperson for Bring Back the Kern, wrote in an email. Bring Back the Kern is one of the groups that hired Keats.
Damian urged residents to send in comments seeking a “real river in your community, not a dry riverbed.”
The last time Bakersfield residents chimed in on the river was in 2010 when the state Water Board was mulling whether to declare the river “not fully appropriated.” Residents sent in thousands of emails and letters pleading for a river through town.
The Dec. 9 hearing may be extended to Dec. 10 if more time is needed.
There will be later hearing phases to discuss high-flow water on the river.
