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LOIS HENRY: State will hear Kern River water rights case

Is there water available on the Kern River and, if so, how much?

Parties to the long-running river dispute will finally get a hearing by the State Water Resources Control Board on those questions, at least.

The big question — who should get the water? — will have to wait.

Still, this is the first significant public movement on the Kern River in the past 11 years.

“We’re very happy,” said Colin Pearce, Bakersfield’s water attorney with the Duane Morris firm. “This is exactly what we’ve been asking the Water Board to do for 10 years — determine how much water is available.”

A date for the hearing, to be held by the Administrative Hearing Office in the Water Board’s Division of Water Rights, has not been set.

The announcement sent out on Thursday detailed several tricky Kern River issues the Administrative Hearing Office will tackle in the upcoming hearing. It also singled out issues brought by Bakersfield.

Pearce said he found that very encouraging as well.

“That means they’re looking at Bakersfield’s claim differently,” he said. “It gives us the opportunity to make arguments for how the city would use the water for the environment and recreation.”

He said he believes singling out Bakersfield is directly related to the barrage of public comments at recent Water Board meetings by the group Bring Back the Kern.

Members of that group have regularly appeared at Water Board meetings to encourage board members to find in favor of Bakersfield’s claim to Kern River water so the public can have water in the river.

“We are cautiously optimistic that this could be the breakthrough our community has been waiting on for decades to bring increased flows to the lower Kern,” Bring Back the Kern wrote in a statement.

The group urged residents to make their voices heard in this “critical” time before the hearing. Residents can comment during public comments, send in written statements or sign the group’s petition at change.org.

“Make sure the Water Board knows Bakersfield needs its river,” the statement said.

Dick Diamond, General Manager of North Kern Water Storage District, which opposes Bakersfield’s claim, said he hadn’t fully read the board’s announcement so he couldn’t comment for this story.

In 2007, a court found that Kern Delta Water District had forfeited some of its Kern River rights for lack of use, but who got the water was up to the Water Board.

Back in 2010, the Water Board agreed the river wasn’t fully appropriated, the first step in the process.

But board members didn’t say how much water was available, nor who should get it.

Six different entities applied for the water and have been, mostly, in a holding pattern for the past decade.

Those applicants include North Kern along with the City of Shafter, the Kern Water Bank Authority, the Kern County Water Agency, the Rosedale-Rio Bravo and Buena Vista water storage districts and the City of Bakersfield.

Of those applicants, only Bakersfield has pledged to run whatever water it gets down the river bed to restore at least some flow through town on a more regular basis and recharge the aquifer.

The other applicants would use the water for farming and municipal uses.

Bakersfield’s application also makes a different legal argument from the other applicants, saying Kern Delta’s forfeited water should be considered “new water,” open to any takers deemed suitable by the Water Board.

The other applicants believe the forfeited water should be given to the other rights holders in an existing order established by “the law of the river,” or longstanding agreements and custom.

Meanwhile, two of the applicants, Kern Water Bank and Buena Vista, have accused each other in complaints to the Water Board and a lawsuit that the other is wasting water or hogging it without any right.

All of which makes the Kern River a very complicated body of water.

To sort it all out, the Administrative Hearing Office will first look at:

• Is unappropriated water available and, if so, how much?

• If unappropriated water is available, in what order should the applications be processed? And how should water be allocated among the competing applications?

• Should Bakersfield’s legal argument that the forfeited water is open to new applicants hold sway? Or should the water flow to the next rights holder under “the law of the river?”

The process may be slow and deliberative, but the fact that this case is moving at all is thanks to a 2018 law creating the Administrative Hearing Office within the Water Board.

The office was created to deal with a backlog of rights cases.

That backlog has only grown larger as even occasional flows from streams that cross the San Joaquin Valley have become highly sought after since passage of the Sustainable Groundwater Management Act.

SGMA mandates that critically over drafted water basins, which includes nearly all basins in the valley, come into balance by 2040.

That means agriculture needs to pump (and farm) less or bring in more water from somewhere.

Lois Henry is the CEO and editor of SJV Water, a nonprofit, independent online news publication dedicated to covering water issues in the San Joaquin Valley. She can be reached at lois.henry@sjvwater.org. The website is sjvwater.org.