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LOIS HENRY: Battle for Kern River water goes deep into rights, history

4_20_19 sup west of allen (copy)

Paddle boarders enjoy a full river west of Allen Road in Bakersfield in this 2019 file photo.

The state hearing on whether there is “loose” water on the Kern River got started Thursday and was quickly snared in a thicket of procedural issues, arcane water rights and water diversion practices.

After two very full days of testimony and legal wrangling, the upshot is that there is no upshot, just yet.

Administrative Hearing Officer Nicole Kuenzi hasn’t decided whether she’ll make a ruling on whether there is unappropriated water on the river until completion of a second set of hearings, which will look specifically at high-flow river water. No word on when those hearings will start, much less be finished.

This week’s phase of the Kern River case focused only on whether a 2007 court ruling that deemed some of Kern Delta Water District’s river rights forfeit, resulted in any available water.

The city of Bakersfield has argued that, yes, that forfeiture created a new water supply, which the state Water Resources Control Board is obligated to permit to a new user. It has applied for the water, pledging to run it down the river bed through Bakersfield.

Opposing the city is North Kern Water Storage District, which argues the forfeiture didn’t create any new water at all. What water Kern Delta forfeited has simply been absorbed by water rights holders that are next in line, in accordance with long-standing river operations and agreements.

A group of public interest groups joined the fray in support of Bakersfield’s position, saying this issue must be considered under the Public Trust Doctrine. Under that doctrine, California holds all natural resources in trust for the public and must make sure they are being put to the greatest beneficial use. Having water flowing through the mostly dry riverbed fits that definition, the groups say.

However, hearing officer Kuenzi deferred discussion of Public Trust issues until after the second phase of hearings is completed.

Bakersfield filed a petition with the state Water Board seeking a reconsideration of that deferment noting that: “No water is currently reserved or set aside for public trust, environmental, stream flow, or fish and wildlife purposes on the Kern River. The Kern River channel instead is dry most months of the year, without any consideration of timing or impacts on the environment,” according to the petition.

But the two-day hearing went forward without including Public Trust issues. Witnesses went into great detail about Kern River hydrology, operations and the many agreements, decrees, settlements and contracts that govern those operations.

Attorneys will now file closing briefs in January and wait for word from the hearing officer about next steps.

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.