A new player has entered the fray over forfeited Kern River water rights, bolstering the position that the public has a right to a flowing river.
The state Department of Fish and Wildlife argues in a legal brief filed recently that the state Water Resources Control Board is absolutely obligated to consider the public trust doctrine in all water decisions, including whether there’s “loose” water on the Kern River. That doctrine states California holds all natural resources, such as rivers, in trust for the public.
Whether, and how much, water is available on the Kern River is set for hearing December 9. The question stems from a court 2007 ruling that Kern Delta Water District had forfeited some of its river rights.
The issue was sent to the Water Board, which decided in 2010 there was some loose water on the river based on flood years. But that’s as far as it got. It said questions of water availability — and who should get the water — would be decided as the state processed water applications filed by the City of Bakersfield, the Kern County Water Agency, the Kern Water Bank and North Kern, Buena Vista and Rosedale-Rio Bravo water storage districts.
More than a decade later, the Water Board’s Administrative Hearing Office is beginning to sort through the Kern’s many legal complexities.
The Water Board “must take the protection of public trust resources into account when determining whether water on the Kern River is available for diversion and appropriation,” the Fish and Wildlife legal brief states in regards to the forfeited water.
The department, along with a consortium of public interest groups, go beyond just the forfeited water. They argue that all the rights on the Kern River are subject to review under the public trust doctrine.
“Some diverters from the Kern River have pre-1914 or riparian water rights. The public trust doctrine protects wild fish, regardless the nature of the claim of the water right,” Fish and Wildlife’s brief states.
A brief filed by Attorney Adam Keats who represents the public interest groups, was even more blatant in its quest to open up the entire river.
“Regardless of the determination of whether Kern Delta rights go to the City of Bakersfield or to junior rights holders, the Board is obligated to go beyond the originally proposed scope of the hearing (forfeited Kern Delta rights and high flow water) to protect public trust resources that are being harmed by all excessive water diversions,” Keats writes.
Agricultural water districts with rights to the river quickly fired back in their own legal briefs.
“The (Administrative Hearing Officer) does not have jurisdiction to consider ‘all current and future taking and use of Kern River water’…as requested by the (public interest groups),” North Kern writes in its brief.
The public trust question is very specific to the forfeited water, not the whole river, agreed Kern Delta General Manager Steve Teglia. “Others have differing view points of what they would like to be done versus what is being asked by the Administrative Hearing Officer and the Water Board.”
Oh yes, “Pandora’s box” has definitely been kicked open on the river, insisted Keats. But it was done by the lawsuit brought by North Kern that resulted in the 2007 water forfeiture.
“The board is taking action because these guys were attacking each other over crumbs and didn’t realize what they were unleashing,” Keats said. “If you’re going to fight over these few acre feet, you have to accept the fact that you’re exposing the entire river to the public trust doctrine.”
Theoretically, he said, the state Water Board is supposed to be considering whether water uses are living up to the public trust doctrine at all times. But realistically, it only comes up when the board gets involved in a dispute. That’s also when the public can become involved. And other agencies, such as Fish and Wildlife, which Keats was ecstatic to have in the fight.
“Fish and Wildlife is confirming our position and it’s awesome that they’re jumping into this case,” Keats said.
It’s not the only river rights case the department has waded into recently.
Fish and Wildlife filed legal papers in a dispute on the Fresno River in Madera County seeking greater flows for fish. The state Water Board undertook a rights settlement on that river in October 2020. Most of the Central Valley’s rivers were divvied up without consideration of native fish and habitat more than a century ago, something Fish and Wildlife would like to see changed.
“But it’s difficult to know where to start, the rights are such a snarly mess,” Fish and Wildlife Regional Director Julie Vance told SJV Water last year. “So when these things come up, we do advocate for fish and wildlife to get them considered in the process.”