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State is asking the wrong questions on Kern River water case, critics argue

 •  by Lois Henry
The Bellevue Bridge over the Kern River when it was full in spring 2019. CREDIT: Lois Henry

A notice for the next round of state hearings on whether there’s “loose” water on the Kern River prompted exasperation from one attorney and a letter from a Bakersfield group beseeching the state to change its focus.

Like the last round held December 9-10, the hearings set for March 15-18 and April 5 and 6, will not consider the public’s needs and how the diversion of water may impact the environment, recreation, drinking water, or quality of life – collectively known as the “public trust.”

Instead, the hearing notice states those public trust issues will be considered at some point in the future. It doesn’t give a date but the timeline appears lengthy.

Public trust may be considered by the State Water Resources Control Board after this phase of hearings, and after all the applications for the water have been “publicly noticed,” and after the applicants have attempted to resolve differences, and after all the environmental reviews are done, according to the notice.

“It is typically neither practical nor efficient for the Board to engage in a detailed consideration of impacts to the public trust resources before” all of that is done, the notice states.

That made no sense to Attorney Adam Keats.

“They have it totally backwards. The first thing that should be decided is what does the public trust require. How much water should be run down the river? Then they can divvy up whatever’s left,” Keats said. “It’s hard to conclude anything other than that the hearing officer and the Water Board are desperately trying to avoid dealing with the public trust issue.”

Keats represents several public interest groups on this case including the Bakersfield group Bring Back the Kern, which has been active over the last two years trying to raise awareness about the river and advocating for at least some water to be run down the dry riverbed on a more regular basis.

The hearing notice was a disappointment to Bring Back the Kern as well.

“With no indication of when or whether (the Water Board) will address the underlying problem of the Kern River being dry, we are forced to consider all options to forward action that would restore flows to the Kern,” texted Kelly Damian, policy and outreach director for Bring Back the Kern.

The group sent a letter to the state Thursday asking that the Water Board direct its Administrative Hearing Officer to include several public trust questions, such as: How much water is needed to restore wildlife, fisheries and recreation? How should Kern River rights holders share in ensuring those flows? Who should have rights to increased groundwater from restored flows to the river? And how should that groundwater be credited?

The letter also mentions California Fish and Wildlife Code 5937, which was the primary lever used by the Natural Resources Defense Council when it sued the federal government to force restoration of the San Joaquin River, dried up by construction of Friant Dam in the 1940s. Code 5937 states that dam owners must allow enough water into rivers to sustain a fishery. That lawsuit resulted in a 2006 settlement under which water contractors had to give up a share of their water.

The current situation on the Kern River “precludes the existence of any fisheries,” Bring Back the Kern’s letter states.

The next set of Kern River hearings will focus on high flow river water, or water that’s in excess of what existing rights holders can take. The primary interests in this phase are the Kern Water Bank, Buena Vista Water Storage District, Rosedale-Rio Bravo Water Storage District and the Kern County Water Agency.

The previous phase held in December focused on water that was deemed forfeited by the Kern Delta Water District in 2007. That water is primarily being fought over by the City of Bakersfield and the North Kern Water Storage District.

All of those entities have applied for either the high flow or forfeited water. Only the city has pledged to run it down the river bed.

Lois Henry
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