Kern County Superior Court Judge Gregory Pulskamp issued a modified injunction on Kern River flows Wednesday that curbs the City of Bakersfield’s take and orders all rights holders to consult on how much water is needed for fish.
On Nov. 14, Pulskamp had ordered 40% of the river’s flows be kept in the stream bed for fish as part of an earlier injunction that requires Bakersfield to keep fish in “good condition” from about Hart Park to Enos Lane. The new modification does not retain that 40% flow requirement, nor list a new one.
Instead, it orders all parties – including agricultural districts with rights to the river – to consult in “good faith” to agree on a fish flow, also called a “public trust” flow. If they can’t agree, any one of the parties can request the court step in and impose flow rates.
Public interest groups that sued to get water back in the river were encouraged by Pulskamp’s modified injunction.
“This is a truly magnificent decision in my opinion,” texted William McKinnon, attorney for plaintiff Water Audit California. “The court has said essentially that it is a high priority to keep the public trust flows intact. Maybe the most important part of the decision is that the court directed the irrigation districts to become part of the solution rather than to remain part of the problem.”
A spokeswoman for co-plaintiff Bring Back the Kern said there was nothing magical about the 40% flow number.
“We are fine with making adjustments to that benchmark,” Kelly Damian texted. “This is new territory for the water districts and the city to navigate so it makes sense that there will be revisions to that original plan. Increased transparency and collaboration around Kern River water will be a boon to our community.”
Pulskamp’s modified injunction also clarifies that the city is not allowed to operate the river in a manner that reduces flows needed by fish populations “unless exempted by dire necessity to sustain human consumption through the domestic water supply.”
The city responded by stating it will change its river operations starting Friday, no longer taking the first 180 cubic feet per second, according to an email by Kristina Budak, Bakersfield’s Water Resources Director.
Under Pulskamp’s 40% order, the city had changed the diversion regime, taking the first 180 cfs after the fish flows, then apportioned the rest based on the existing rights structure.
Now, it will “not perform any water diversions” unless a minimum of 20 cfs is passing over McClung Weir, several miles west of Allen Road, Budak wrote in the email.
“In the meantime, City will follow the historical practices for determining daily Kern River entitlement,” she wrote.
This latest court action was prompted when Bakersfield jumped ahead of other rights holders on the river to take 180 cfs on top of what it was already taking per the existing rights structure.
Ag districts were outraged calling it “the biggest water heist on the river in the last 100 years.”
They took the issue back to court for a hearing Dec. 21 and Pulskamp seemed to agree that it appeared Bakersfield overstepped.
During a back and forth with the city’s attorney Colin Pearce about Pulskamp’s original injunction, the judge stated: “The court’s intention was clear. By creating a new water right – call it a carve out – for public trust flows, the court’s intent was to take that out of allocations that were not for city municipal use. But I never intended to expand the city’s water rights, either.”
Bakersfield insisted it wasn’t taking more water than it had a right to, but was taking the water before other users in compliance with Pulskamp’s original injunction and Nov. 14 implementation order, which Bakersfield said gave domestic use priority over other uses, including agricultural.
The ag districts were pleased with Pulskamp’s modification.
“The (Dec. 27) ruling correctly strikes down the city’s blatant attempt to use this proceeding as an opportunity to expand its water rights, both in terms of quantity and priority,” emailed Steve Teglia, General Manager of Kern Delta Water District, which has the first rights on the river. “The ruling also ensures that (all rights holders) will have a seat at the table when developing interim fish flows.”
Meanwhile, a near total shut down of river flows from Isabella Dam is still looming.
The Army Corps of Engineers agreed to cut flows to just 25 cfs starting Dec. 18 so Isabella Partners, owners of the power plant at the base of the dam, could make repairs to the plant. Repairs slated to last several weeks, which would decimate downstream fish.
Releases from the dam have been ramping down from about 1,000 cfs to about 380 cfs as of Thursday.
Pulskamp’s injunction to keep water in the river for fish does not extend to the Army Corps, nor the handful of power plants sprinkled up the canyon.
Water Audit of California has been working with Isabella Partners to try and find a work around but a solution hasn’t yet been announced.
The timeline for Isabella Partners to make repairs is tight as the Army Corps keeps an eye on winter storms bringing more water into the lake, which must be maintained at lower levels in winter for flood control.