LOIS HENRY: Water agencies brawl over 'use it or lose it' rule
| Monday, Jan 23 2012 11:00 AM
Last Updated Monday, Jan 23 2012 11:00 AM
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Listen to KERN 1180 AM from 9 to 10 a.m. Monday through Friday when Californian staffers discuss this issue and others. You can get your two cents in by calling 842-KERN. Lois Henry hosts every Wednesday. To listen to archived shows, visit bakersfield.com/CalifornianRadio
"Both the city and North Kern, in the previous lawsuit, told us if we kept releasing water to the river as we had historically done they would continue to sue to take it. We're not going to sit here and let them take it away over time."
-- Mark Mulkay, Kern Delta's general manager
The gloves have definitely come off in the latest round over the Kern River. Kern Delta Water District had put the rest of the water world on notice last spring that it planned to use all of its remaining Kern River water rights in a series of new projects, such as groundwater recharge, etc.
It recently circulated its environmental impact report for comments and, boy howdy, did it get 'em -- from both barrels.
In a blistering 45-page letter, the City of Bakersfield called Kern Delta's environmental report misleading, illusory, vague and "nothing but a sham process."
Whoa!
What could possibly get the city so riled?
"This EIR, if it goes through, would allow them to sell substantial amounts of Kern River water out of the area including to Los Angeles and Southern California," answered Colin Pearce, the city's water attorney, who works for Duane Morris in San Francisco.
Another major concern is whether Kern Delta actually owns the water its planning to use, but let's come back to that.
"That's just their suspicion," said Kern Delta's General Manager Mark Mulkay of the city's fear over water sales. "The only time it's mentioned is if there's a big water year and we end up with excess that we can't find a home for. We're only talking about a little water and putting it someplace like Pioneer."
The Pioneer Project is a groundwater bank owned by the Kern County Water Agency.
OK, lets see what the EIR says. The section outlining transfers or sales does talk about excess water in wet months. But it's full of "could," and "may be." There are no hard and fast numbers nor explanations of how sales or transfers would work.
And then there's this final sentence: "Water could be used for transfer to out-of-District agencies and/or Kern County banking projects on behalf of others."
Uh, yeah. That's way too vague for comfort. Particularly when you're talking about something as serious as possibly selling Kern River water out of our county.
If Kern Delta truly means to keep Kern River water here, I'm sure they could make that crystal clear.
But they have even bigger problems, according to the city and, in a roundabout way, the North Kern Water Storage District.
The city says in its letter that Kern Delta does not own the Kern River water it wants to use for these projects.
"Obviously, we strongly disagree," Mulkay said.
Way back in the 1970s, Kern Delta bought 250,000 acre-feet a year of Kern River water from Bakersfield. The district forfeited 50,000 acre-feet of that water because it didn't use it, according to a 2007 court judgment.
That 50,000 acre-feet is now in the hands of the State Water Resources Board, which will determine who, if anyone, should get ownership. The city and North Kern, among others, are vying for that water through applications filed with the state.
Meanwhile, Kern Delta has been scrambling to hang on to its remaining 200,000 acre-feet. That's because, without the projects outlined in its recent EIR, the district only uses about 167,000 acre-feet a year.
That leaves 33,000 acre-feet vulnerable under the "use it or lose it" precept of California water law.
"Both the city and North Kern, in the previous lawsuit, told us if we kept releasing water to the river as we had historically done they would continue to sue to take it," Mulkay said. "We're not going to sit here and let them take it away over time."
Except you can't make up a phony demand for water just to hold on to it, according to the city.
"This is water they admit in their own EIR that they've never used," Pearce said.
The State Water Resources Board should determine the fate of this 33,000 acre-feet, Pearce said. North Kern Water District said as much in its application to the state board for the original 50,000 acre-feet of forfeited water. North Kern wrote that Kern Delta would very likely be forced to give up even more water for non-use.
Even so, Richard Diamond, general manager of North Kern, told me Friday his district would rather work something out than go before a judge.
"There are enough legal disputes as it is," he said. (A bit ironic coming from Diamond as North Kern has been popping out lawsuits over the Kern River faster than a PEZ candy dispenser.)
North Kern, Kern Delta and Bakersfield had been talking over several months to try to settle this issue. Diamond had hoped those talks would resume.
But now, "it looks like it's going to be a train wreck," he said.
Just another day in Chinatown North.
Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at www.bakersfield.com, call her at 395-7373 or email lhenry@bakersfield.com
