Kern River water is at the center of another legal battle

February 6, 2020
by Lois Henry
Lois Henry

LAWSUIT

Read the latest lawsuit over Kern River water filed by Rosedale-Rio Bravo Water Storage District against the City of Bakersfield Dec. 11, 2019.

RRBWSD suit against the city

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The relative lull in lawsuits over Kern River water was broken Dec. 11 when Rosedale-Rio Bravo Water Storage District filed a complaint against the City of Bakersfield.

Rosedale’s complaint, filed in Kern County Superior Court, demands that the city keep selling a portion of river water to the district under a layer cake of agreements going back more than 40 years.

The city’s interpretation of those agreements, of course, differs from Rosedale’s.

But the reason for the fight can be summed up in a single acronym — SGMA. That’s the state’s new Sustainable Groundwater Management Act, which requires water entities bring overdrafted subbasins into balance by 2040.

The Kern subbasin is critically overdrafted. Groundwater sustainability agencies created under the new law must submit plans by Jan. 31, 2020 to correct that overdraft over the next 20 years.

So, Rosedale, as well as Bakersfield and every other GSA, is anxiously counting its supplies in order to show the smallest deficit possible in their groundwater sustainability plans.

The stakes are high.

The size of a GSA’s deficit can mean the difference between farming as usual and having to take thousands of acres out of production. For valley cities, groundwater supplies equal continued growth.

“We are fighting over a limited future water supply and who can claim it,” Colin Pearce, an attorney with Duane Morris who handles Bakersfield’s water disputes, said last week.

He said this new fight is over “miscellaneous” river water that may be available, depending on the water year, after all other city obligations and demands are met.

In 1976, when the city bought rights to the Kern River from Tenneco West, it made an agreement to sell ⅓ of its miscellaneous water, when available, to Rosedale.

The 1976 agreement was updated in 2006 to say that ⅓ portion would be reduced as the city annexed areas in the northwest. The idea was that as Bakersfield grew, it would meet the needs of those annexed areas directly and Rosedale would get less and less miscellaneous water, Pearce said.

No more water
“This summer, Rosedale asked for confirmation that the city would continue selling it that miscellaneous water so they could list it in their GSP as a future source of water,” Pearce said. “Art (Chianello, Bakersfield’s Director of Water Resources) let them know that because the city also has SGMA obligations and greater demands in the future, he didn’t know if that water would be available.”

The city’s stance is there simply is no more miscellaneous water to be had.

“The whole program is essentially gone,” Pearce said.

The 1976 contract says miscellaneous water is water leftover after “any city demand,” he said. Rosedale is now trying to narrow the definition of an acceptable city demand, according to Pearce.

Not so, said Rosedale General Manager Eric Averett.

“We’re not trying to take any water that’s being used within the city’s boundaries,” Averett said.

The real issue is price, he said.

Under the 1976/2006 agreements, miscellaneous water is extremely cheap – $17 per acre foot, according to a 2009 invoice.

Averett said in talks last summer, Chianello suggested a much higher price, about $350 to $375 per acre foot, which is what he said the city charges for other Kern River water.

Pearce said the city has not and does not sell water for anywhere near those prices and that Chianello doesn’t recall any conversation with Averett that involved water sales for those amounts.

Before this fracas, Rosedale had received, on average, 11,000 acre feet a year of miscellaneous water, that would be a huge bill. Miscellaneous water makes up about 15 percent of Rosedale’s total supply of 69,000 acre feet a year, per its groundwater sustainability plan.

“These are big numbers, that’s why this is such a big deal,” Averett said.

Defining water
The city didn’t sell any miscellaneous water to Rosedale in 2017 and 2019, though it had an abundance of miscellaneous water, which it sold to other entities, Averett said.

He estimated, Rosedale lost out on a minimum of 30,000 acre feet in 2017 (the third wettest year on record) and another 25,000 to 30,000 acre feet in 2019. Rosedale’s lawsuit is seeking repayment of the 2017/2019 miscellaneous water that it believes it was shorted as well.

“The problem for the city, is pricing is part of the contract and now they see they can sell it to others for far more,” Averett said. “There is an opener to adjust the price, but they don’t want to honor the contract.”

The bottom line, Averett said, is that if the city has excess Kern River water that it can’t use in its annexed areas, it must offer ⅓ of that water to Rosedale.

“The agreements are clear, they provide ‘continued and undiminished access’ to that water,” he said.

Pearce disputed Averett’s definition of the water the city sold in 2017 and 2019.

That wasn’t miscellaneous water, it was “high flow” water, he said. When Lake Isabella gets too full, the Army Corps of Engineers and Kern River Watermaster tell water users that high flow releases will be coming down the river, which is what the city sold in 2017 and 2019.

Contracting for the future
The city has been fighting over Kern River water contracts for the better part of this past decade.

Back in 1976, the city sold bonds to pay for Tenneco West’s river rights. To pay those off, it entered into 35-year contracts to sell a portion of its water to several agricultural water districts.

Those contracts were up in 2011 and the city notified the districts it wanted the water back. One of those, the North Kern Water Storage District, sued and won in 2014 because the city hadn’t adequately demonstrated a need and project for the water.

The city appealed and lost again.

Pearce said that contract issue is still unresolved as even North Kern agrees the contract will end at some point.

“When that is is unclear,” Pearce said. The North Kern contract differs from the 1976 miscellaneous water contract in that it lays out specific city demands that can take precedence over the water sold to North Kern, he added.

Defining miscellaneous water and how a contract made more than a generation ago will dictate Bakersfield’s future is now in the hands of the court.

The first hearing is scheduled for March 26, 2020 before Judge David Lampe.

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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