A county judge is siding with environmentalists in an ongoing lawsuit over dedicating freshwater flows from the Kern River to protecting fish populations. A new injunction sets a 40% unimpaired flow regime and irrigation districts argue the city of Bakersfield is seizing on the opportunity to claim a seven-fold boost to their water right at the expense of farms downstream.
Community advocates and environmental interests have pushed for years to restore natural flows to the Kern River and regreen the landscape along a stretch of the watershed that often runs dry. The groups filed a lawsuit against Bakersfield last November over the issue.
Last month Kern County Superior Court Judge Gregory Pulskamp ruled that the city must open its six weirs to maintain a sufficient flow for fish downstream. He recognized the complexity of determining flow standards and left it to the city and interest groups to come to a solution. The two parties returned with an aggressive 40% flow standard and an additional boost of 180 cubic feet per second (cfs) for Bakersfield.
Feeling left out of the negotiations, a coalition of water districts immediately filed motions to stay the injunction and reconsider it and are preparing for a court hearing on December 21.
Dave Hampton, general manager of the North Kern Water Storage District, told Agri-Pulse he had hoped the two parties would have engaged in good faith conversations with the districts on establishing criteria to protect the fish. Instead, they sidestepped the districts and, he asserted, Bakersfield created a new water right by falsely portraying its daily demand and inappropriately interpreting the judge’s order.
Since the injunction order, the district has been losing more than 300 cfs of flow, adding up to a loss of at least 700 acre-feet a day. It is impacting the district’s ability to meet irrigation needs next year and for local agencies to implement groundwater sustainability plans, according to Hampton.
“This is an end run by the city to try to gain some water supply and use the proceeding and this circumstance as cover to do it,” said Steve Teglia, general manager of the Kern Delta Water District. “This was a reach too far by the city of Bakersfield.”
Teglia also took issue with the interim flow requirement, arguing “a blanket percentage is not necessarily an applicable way to achieve the stated goal” of protecting fish. He called for a more strategic approach with a flow regime that accounts for factors like the seasonal variability of the river and beneficial uses like agriculture.
Teglia contended that a court order is not the appropriate avenue for determining water rights. He pointed out that the State Water Resources Control Board has spent several years attempting to determine if the river is fully appropriated. About a decade ago a court determined that Kern Delta could not prove that it was using its full water right and the court set a cap on the district’s water use during certain months of the year. Unlike Pulskamp, the judge defaulted to the water board to determine if that would make more water available to permit for other uses. Teglia contends that the majority of the diverters on the river feel the court decision did not create any new water and that any water the district does not take should flow to other right holders instead.
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The case is still under review at the board’s administrative hearings office.
Chris Scheuring, California Farm BureauTeglia cautioned it is too early to determine if the current lawsuit will lead to any legal precedent that allows courts to determine water rights in other regions of the state. He acknowledged the decision to bypass the water board could have implications for other watersheds that are swept up in similar battles over flows. But he cautioned that the Kern is different, since it is a closed system and does not flow into the Sacramento-San Joaquin Delta or out to sea.
Chris Scheuring, senior counsel at the California Farm Bureau, also noted that unimpaired flows have been an issue on other rivers in the Central Valley, such the Merced, Stanislaus and Tuolumne rivers—all of which are being litigated.
“It's a very rough approach to nuanced problems,” Scheuring told Agri-Pulse. “[The Kern River injunction] doesn't appear to have involved a whole lot of science or input from the water users that are ultimately involved.”
He worried about the impacts to agriculture when so many interests are chasing such little water in a semi-arid state and called for resolving those differences by expanding the state’s overall water supply through more above- and below-ground storage.
“What we're talking about here is food,” he said. “This area is one of the most productive agricultural regions in the world.”
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