Kern County Superior Court Judge Gregory Pulskamp came back several times during an Oct. 13 hearing to what he saw as a “major issue” in the dispute over keeping water in the Kern River – its plumbing.
The plaintiffs, a group of entities headed by Bring Back the Kern, have argued that water could flow in the river through Bakersfield for the public and fish and all the river users could still have their shares if water managers simply changed the spot where they siphon off their water.
Nope, can’t happen, responded the City of Bakersfield and agricultural water districts with rights to the water.
Bring Back the Kern is seeking a preliminary injunction to stop diversions off the river that may harm fish populations that have rebounded during this year’s epic runoff.
The injunction is part of a larger lawsuit Bring Back the Kern filed in November 2022 accusing Bakersfield of being derelict in its operation of the river by not accounting for how diversions may have harmed the environment.
The contradictory positions on Kern River plumbing puzzled Pulskamp who asked several times how the two sides could be so at odds over what seemed like basic logistics.
“I see that as a major issue,” Pulskamp told the assembled attorneys and packed gallery at the hearing on Friday. “Essentially, if everybody could get the water allocations they have now for municipal, industrial and agricultural use and simply take the water from southeast of Bakersfield instead of northeast of Bakersfield, everybody should be happy and we’d have a river flowing through Bakersfield.
“Not only for fish and fisherman, but businessmen, boardwalks, everybody. It would beautify the city overall and everybody could get their allocations.”
But that utopian vision depends on whether it can physically be done, he said.
“I’m giving you an idea of where my thoughts are on exploring possible resolutions that could satisfy all parties,” Pulskamp said.
As he sifted through the blizzard of paperwork submitted by attorneys, he lamented the lack maps or other documents that could diagram the river’s plumbing so a “lay person” could understand its possibilities and limitations.
He noted the only map provided, which shows the hydra of canals coming off the river, looked more to him like a map of “the Los Angeles freeway system” and didn’t give him the information he was seeking.
Another key issue was how much water is “sufficient to keep fish in good condition,” which is what the plaintiffs are seeking in their injunction. Except they haven’t defined how much water that is, exactly.
Attorneys for the plaintiffs, Adam Keats, who represents Bring Back the Kern, and Bill McKinnon, with Water Audit of California, said it’s not up to them to determine how much water is needed for the fish. That’s up to the City of Bakersfield, as the river operator, to study that question and come up with a flow plan.
“I don’t think I’ve ever come across a situation where a court was asked to impose an injunction with the terms to be defined by the party that’s subject to the injunction,” Pulskamp said. “It seems inherently contradictory.”
For its part, the City of Bakersfield, represented by Colin Pearce, has said the injunction being sought would prohibit them from taking any water off the river.
He called the injunction request vague and overly broad.
“They are accusing the city of doing nefarious things and harming the river,” Pearce said. “It’s sad how the city is being attacked. The city has worked for 45 years to protect the river and provide water to the public. Now, we’re the bad guys and they’re demanding we do their research for them.”
Attorneys for the agricultural districts argued that, if granted, the injunction would violate layers of contracts, decrees and agreements going back to 1888 and that the plaintiffs haven’t proved that providing flows for fish outweighs potential harm to all those rights holders.
Under California Fish and Game Code 5937, that’s not even an issue, McKinnon and Keats argued.
It’s a strict liability statute that requires dam operators to keep fish in good condition. Bakersfield operates six weirs on the river that Keats and McKinnon said are defined as dams.
“Fish dying is not remotely comparable to loss of profit by an agricultural district,” Keats said. “There is no wiggle room.”
As to Bakersfield’s contention that limiting diversions could hurt its drinking water supply, Keats said, drinking water is a public trust use and would not be cut off under the requested injunction.
Besides, he said, the city only uses about 24,000 acre feet a year of river water, filling most of its needs by groundwater, which would only be improved with more water running through the riverbed.
Pulskamp anticipated he would make a ruling on the injunction within the next two to three weeks.
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