Secret Kern River talks underway

January 16, 2021
by Lois Henry
Lois Henry

“Near future”

The sentence about a hearing on Kern River water availability in the “near future” came in a Dec. 21 letter from the State Water Resources Control Board dismissing a complaint by the Kern Water Bank Authority against Buena Vista Water Storage District.

The beef between the two agencies goes back to when each applicant for unappropriated Kern River water had to file environmental documents describing how they would use the water.

The Kern Water Bank applied for high flow water that the Water Board noted had previously gone into the California Aqueduct indicating not all Kern River water was being used.

Buena Vista felt the water bank’s environmental documents were too vague and sued in January 2019, according to Tim Ashlock, General Manager of Buena Vista.

In August 2019, the water bank authority lodged a complaint against Buena Vista with the Water Board.

That complaint, essentially, said Buena Vista was hogging high-flow water in excess of its rights.

Further, the water bank authority alleged, Buena Vista intended to hoard as much water as possible in order to sell it to other districts trying to comply with the Sustainable Groundwater Management Act.

Buena Vista responded that it had diverted and stored more water in 2017 simply because there was more water as it was the third wettest year on record on the Kern River.

A call to Jonathan Parker, General Manager of the Kern Water Bank Authority wasn’t returned.

In its dismissal of that complaint, the Division of Water Rights noted the water bank’s concerns overlapped with existing Kern River issues.

“The AHO (Administrative Hearing Office) will schedule a hearing in the near future to address water availability with respect to the Kern River applicants,” the Division’s letter states.

Issues raised by the water bank would likely be considered then, it adds.

The specter of state intervention in the Kern River could have been the impetus for mediation between the river interests, which started last week.

Meanwhile, a Ventura County judge found the water bank authority’s environmental documents associated with its application for high-flow Kern River water were inadequate.

The water bank authority has appealed that ruling, Ashlock said.

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It’s hard to say what spurred “confidential mediation” over the Kern River that began last week.

Could it be the relentless “Bring Back the Kern!” campaign by a group of young, Bakersfield residents?

Could it be a sentence in a recent letter from the State Water Resources Control Board that said, in part, it “will schedule a hearing in the near future to address water availability with respect to the Kern River…”?

Could it be both?

No one involved in the mediation would say.

Whatever got them to the table, though, the so-called “Kern River applicants” are definitely talking now.

This is the group of cities and water districts that applied to the Water Board for Kern River water back in 2007 after a lengthy court case found that Kern Delta Water District had forfeited up to 50,000 acre feet of its river water.

The judge in that forfeiture case didn’t award the water to the other litigants, instead kicking that issue up to the Water Board.

In 2010, the Water Board found there was, indeed, unappropriated water on the river based on the fact that in high-flow years, some water passed by all Kern County users and ended up streaming into the California Aqueduct through a structure called the intertie.

The Water Board, however, didn’t quantify how much river water was unappropriated nor who among the applicants it should go to.

There are six applicants.

The City of Bakersfield, North Kern Water Storage District along with the City of Shafter, Buena Vista Water Storage District, Kern County Water Agency, the Kern Water Bank Authority and Rosedale-Rio Bravo Water Storage District.

The water bank authority and Rosedale-Rio Bravo both applied for any high-flow water the board deems available while the rest are going for the Kern Delta forfeited water.

Most would use any water they got for agriculture and some municipal uses, according to their applications.

Only the City of Bakersfield has pledged to run the water down the river bed.

Though no one involved in the mediation would talk about what got them there, they were all aware of the line in the Water Board’s letter about a possible hearing in the “near future.”

Given the long timeline of this issue so far, some mediation participants shrugged when asked how “near” the “near future” might be.

“Sometime this year, maybe?” guessed Dick Diamond, General Manager of North Kern.

“Maybe in the springtime?” said Colin Pearce, an attorney with Duane Morris, who represents Bakersfield on water issues.

The Water Board wouldn’t even go that far.

“As of right now, we do not have a hearing on the Kern,” said Erik Ekdahl, Deputy Director of the Division of Water Rights at the Water Board. “That referral (to the hearing office) hasn’t happened yet.”

The issues on the Kern are very complex, Ekdahl explained in a previous interview.

That’s because much of the river’s water is governed by pre-1914 settlements and agreements known as the “law of the river.”

Pre-1914 means water was allotted before the creation of the state Water Board, so it has no authority over those rights.

Most of the applicants are arguing that the Kern Delta forfeited water is still subject to the pre-1914 agreements and isn’t “new”  water at all.

They say it should be allotted to other Kern River rights holders per the law of the river, Ekdahl said.

“They’re arguing that in most years, those rights holders don’t get enough water to fill those rights as it is,” Ekdahl said.

Bakersfield, though, is arguing the 50,000 acre feet of forfeited water is a new source and should be available to new appropriators, Ekdahl said.

“It’s an open question as to which legal argument is correct,” he said.

Underlying all of that is whether there actually is water available.

To sort that out, the Water Board asked each applicant to file a water availability analysis, which most have done.

“We’ve been working with the applicants for years on that question,” Ekdahl said.

But there’s a difference between what’s set down on paper and the actual hydrology of the river.

There may be water available, Ekdahl said, but is that only in really big years like 1983 and 2017?

Those are exactly the questions the City has been waiting for the Water Board to delve into.

“A hearing on the water availability is the logical next step in figuring out what to do with the unappropriated water and hopefully get more water into the river channel,” Pearce said.

Though he wasn’t sure what prompted the Water Board’s letter stating it would have a hearing in the “near future,” Pearce gave a lot of credit to the “Bring Back the Kern!” group for keeping the river top of mind for Water Board directors.

“I think it’s been a huge factor in all this and I’m really encouraged and happy the citizens of Bakersfield have taken such an interest in the Kern River,” Pearce said. “We haven’t seen movement at the Water Board in a long time – until now.”

The group got its feet wet, so to speak, last summer with an online petition calling for the return of water in the dry river bed, which has garnered more than 5,000 signatures.

Since then, the group has become more organized with a website, getting letters published in The Bakersfield Californian, doing interviews on KGET Channel 17 and Telemundo and having multiple members appear at the Water Board monthly meetings during public comments to plead their case for the river.

The group’s goal is to find ways to get at least some water into the riverbed through town on a more regular basis.

“It’s very exciting to hear this,” said Stephanie Nava, a member of Bring Back the Kern!, about mediation and greater Water Board interest. “We are committed to raising awareness about a flowing river and will continue to do so until there is one.”

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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