Putah Creek’s experience suggests getting water back in the Kern River could be a “slam dunk”

October 22, 2022
by Lois Henry
A webinar panel explaining how flows on the Putah Creek were restored and how those lessons might apply to the Kern River was hosted Oct. 20 by Bakersfield nonprofit Bring Back the Kern. Top row left to right: Tim McNeely, Bring Back the Kern; Richard Beene, moderator; Joe Krovoza, former Mayor of Davis and former chair of Putah Creek Council. Bottom row left to right: Karrigan Bork, UC Davis law professor; Roland Sanford, General Manager of Solano County Water Agency.
Lois Henry

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If water rights on the Kern River were challenged in a public trust lawsuit, those rights would lose water, according to a legal expert on the public trust doctrine.

Even when water rights go back more than 100 years, which is the case on the Kern River, the public trust doctrine holds sway.

“It’s not possible to have a water right that doesn’t consider the public trust issues,” said Karrigan Bork,  a U.C. Davis law professor and expert on public trust issues. “If those rights have never been weighed against the public trust, they will lose water.”

Bork was part of a webinar put on Oct. 20 by a grassroots Bakersfield group Bring Back the Kern, which aims to get water into the dry river bed running through town. Richard Beene, who also serves on SJV Water’s board, moderated the panel.

The webinar  brought together Bork, Roland Sanford, General Manager of Solano County Water Agency, and Joe Krovoza, former Mayor of the City of Davis, to discuss how flows in the Putah Creek were restored more than 20 years ago.

Sanford and Krovoza were on opposite sides of a decade-long fight to restore flows in the Putah Creek, which runs from Lake Berryessa in Napa County southeast to the Yolo Bypass just west of Sacramento.

Much like the Kern, the Putah Creek supports a strong agricultural economy and rights to its waters go back generations. Also much like the Kern, 23 miles of the lower creek often went dry.

In 1988 birdwatchers realized no one was paying attention to the creek and formed the Putah Creek Council, which began gathering information about the waterway but really had no intention of getting water back in the creek, Krovoza said.

Then in another drought in the 1990s, children attending a camp along the creek told their parents about the dry river, dead fish, trash and other problems. The parents went to the Putah Creek Council, newspapers got wind of the story and everyone started asking what was being done, he said.

The council formed a coalition with the City of Davis and U.C. Davis, which Krovoza said was crucial to the cause.

In 1996, the coalition sued various water agencies under the public trust doctrine and California Fish and Game Code 5937, which mandates dam operators/owners must release enough water to keep downstream fisheries in “good condition.”

The coalition asked for four “pieces” of water, Krovoza said. Those included enough water to keep the river wet all the way to the Yolo Bypass, for native fish, flood flows, and to re-establish a salmon run.

The judge granted the coalition the native fish flows and enough to keep the river wet to Yolo, but denied the rest.

“Importantly, the judge also didn’t grant a drought schedule for the water agencies,” Krovoza said. “So, in future drought years, with this ruling in place, that created a lot of anxiety.”

The ruling brought the sides together and over the next four years they negotiated the Putah Creek Accord, which relaxed flow requirements in drought years and created “pulse” flows for salmon.

It also created the Lower Putah Creek Coordinating Committee and a “stream keeper” position funded by the water agencies to monitor the creek and work on restoration.

Water agencies and growers didn’t like the accord at first, Sanford said. But it has resulted in a lot more water certainty for farmers in the area and strengthened relationships.

“Now, we’re in another drought and we’re dealing with it without the controversy we’ve had before,” Sanford said. Looking at other water fights in California, including along tributaries to the Merced River, Sanford said the Putah Creek Accord put Solano water agencies 20 years ahead.

Putah Creek is thriving now with multiple new parks along its shores. In 2012, salmon came back to the creek, prompting  the small town of Winters to create an annual salmon festival heralding their return each fall.

The lower Kern River doesn’t empty into the ocean and has no real native fish population, one webinar attendee noted. Would the public trust and Code 5937 apply?

Absolutely, Bork answered.

Cases involving inland lakes, including the Mono Lake, used 5937 to restore water. The law is very broad, he added.

“I’m not aware of any cases under 5937 where they’ve lost,” Bork said. “When people bring that into play, they win.”

His advice to water agencies and rights holders fighting against a public trust lawsuit was stark: “Once you realize you’re going to lose, lose gracefully and lose fast so we can get water back into the river.”

And, he noted, when members of the public take on these types of cases, which should be enforced by state agencies, they can be reimbursed for their fees – which happened on the Putah Creek case.

There are no public trust lawsuits against the Kern River now, though one was recently threatened and the public trust has been brought up in ongoing hearings at the state Water Resources Control Board.

The water community needs to “accept the fact that the law is on the side of multiple users and 5937 is definitely on the side of fish,” Krovoza said.

Krovoza and Sanders both advised the need to build a coalition and for all sides to remain civil.

“You’ll be working together on this for the next 20 or 30 years,” Sanders said.

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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