Legal fight reopened over Kern River

April 15, 2020
by Lois Henry
Lois Henry

Will Bakersfield ever get its river back?

Bakersfield water managers have been working to bring river flows back through the center of town for years.

The river was basically dried up after Tenneco West built the River Canal to deliver water to Buena Vista Water Storage District near Buttonwillow.

Bakersfield bought Tenneco West’s river rights in 1976.

Water managers had hoped to bring the river back to life, at least from Manor Street to Stockdale Highway, when its long term sales contract with North Kern Water Storage District expired in 2012.

That didn’t happen after North Kern won a lawsuit that has forced Bakersfield to sell its surplus water to the district.

Meanwhile, another block of Kern River water is still out there.

In 2007, a court found that Kern Delta Water District hadn’t been using all its river rights and deemed a portion to be forfeited.

It sent the issue up to the State Water Resources Control Board to determine who should get the water.

In 2010, the State Board determined there is unappropriated water on the Kern River and several entities applied for the water, including Bakersfield, which has pledged to run it down the river.

Within the last year, the State Board asked all the applicants to submit information showing how much water they believe is available on the river.

The board is still reviewing that information.

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The Kern River can’t seem to stay out of California’s courtrooms — even in a pandemic.

The latest legal scuffle, which erupted last week, is a continuation of a nearly decade long battle by a Kern County ag water district to hold on to a portion of its main water supply.

On Friday, April 9, North Kern Water Storage District unsuccessfully sought to have a Ventura County court slap a temporary restraining order on the City of Bakersfield to force it to hold 20,000 acre feet of water in Lake Isabella to sell to the ag water district later on.

The request was denied that same day, mostly because of the wide scale court closures due to COVID-19. The larger issue of whether Bakersfield was in violation of the court’s 2016 order on this topic was set for a hearing on July 15.

North Kern expects to succeed in this latest skirmish but it’s unclear how a new and powerful player may tip the scales.

That player is the state’s new Sustainable Groundwater Management Act, which looms over almost all water fights these days. SGMA mandates overdrafted aquifers be brought into balance by 2040.

How SGMA weighs in on this Kern River fight, or whether it does, could have implications for other disputes down the road.

How we got here

The 20,000 acre feet in question was originally sold to North Kern by the city under a long term contract starting in 1976. The city had just bought Kern River rights from land company Tenneco West using bonds, which it paid off through such water sales.

That contract expired at the end of 2011 and the city notified North Kern it wanted the 20,000 acre feet back.

Since this is water, though, it wasn’t that simple.

There is an extension period written into the contract that dictates the city must continue selling the water to North Kern until it has a need and a project for that water within city boundaries.

That caveat was crystal clear to both sides, which each saw it completely differently.

Bakersfield wanted to run that water down the dry Kern River bed in order to replenish the aquifer and have a river.

That wasn’t a need or project in North Kern’s view, which sued and won in 2014. Bakersfield appealed and North Kern won again in 2016.

“The judgement says they have to have an approved project to divert and use that water,” said Richard Diamond, General Manager of North Kern. “And running it down the river isn’t an approved project.”

What happened last week

According to North Kern, the city was dragging its feet about whether it would have water to sell the district.

“Every year, we go through this dance,” Diamond said. “We’re hoping we can figure out a way to get this resolved. It’s not a good way to do business.”

In July, he said he expects the judge, the same one who issued the 2016 ruling, will affirm North Kern’s position and order the city to cough up the water — though by then it will likely be so late in the year the city won’t have any water to give.

No, the city wasn’t dragging its feet, said Colin Pearce, an attorney with Duane Morris, which handles Bakersfield’s water disputes.

North Kern was told in February it was probably going to be so dry the city wouldn’t have surplus water to sell and the city’s Water Resources Department would update the situation in April.

“We kept telling them, ‘If you want more information, tell us what you want,’” Pearce said. “Instead, they just went to court.”

Pearce believes North Kern is focusing on procedure when the bigger issue is the district simply isn’t entitled to any water this year.

“The intent of the contract is if Bakersfield doesn’t have a need for all its water, it can sell what’s surplus to its needs,” Pearce said. “It’s up to the city to decide how much water it needs.”

SGMA’s share

Part of what the city may need this year and into the future is water to recharge the aquifer, Pearce said.

“This is the first year the city has an obligation under SGMA to keep more water in its boundaries and that’s what it’s doing,” he said. “North Kern is saying Bakersfield has to honor the contract and give them water. But if they do, they’ll be in violation of SGMA.”

For North Kern, Pearce said, this is purely economic. It would cost $2.7 million for North Kern farmers to pump water as opposed to $2.1 million to buy it from Bakersfield.

“They want to take water from city residents so they can save a few dollars,” he said.

He anticipates all those issues, and likely more, will be argued in July.

Meanwhile, North Kern is under the same SGMA mandate. The district’s Groundwater Sustainability Plan shows it is not critically overdrafting the aquifer but that groundwater levels have “generally deteriorated.”

North Kern’s GSP shows it receives about 154,000 acre feet a year of Kern River water through different contracts and agreements, including the one currently under dispute.

That’s out of 187,500 total acre feet a year from all sources, meaning the river is North Kern’s main water source.

“We don’t get state water or CVP (Central Valley Project) water. All we have is the Kern River,” Diamond said. “That’s why we fight so hard for it.”

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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