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LOIS HENRY: State Water Board member: Flowing water is ‘necessary’ in the Kern River

20211006-bc-drought (copy)

Mike Wilmont fishes for trout on the Kern River near Kernville. The State Water Resources Control Board recently denied a petition by the city of Bakersfield that sought to have public trust issues considered as an integral part of determining whether there is, in fact, "loose water" available in the Kern River.

A technical legal gambit on the current Kern River case gave an interesting peek into the thoughts of one member of the powerful state Water Resources Control Board, which will ultimately decide the fate of any “loose” water on the river.

The city of Bakersfield had filed a petition asking the board to reconsider an order that deferred consideration of public trust issues — meaning flows dedicated to the river for recreation, wildlife and drinking water — in the multi-phased administrative hearings to determine: if there is available water on the river; if so, how much; and who should get it.

The administrative hearing officer deferred discussion and testimony of public trust issues in order to first tackle questions of whether water is available based on two different scenarios. The first scenario is whether a 2007 court ruling that forced Kern Delta Water District to forfeit some of its water resulted in “new” water, or whether that water was legally absorbed by other rights holders on the river. The second scenario is whether there is available water based on extreme high-flow water years when there is water above what existing rights holders can take.

Once those issues are settled, the hearing officer ordered, public trust concerns may be considered. Bakersfield’s petition sought to have public trust issues considered as an integral part of determining whether there is, in fact, water available. The next set of hearings are scheduled for March 15-18 and April 5-6.

The Water Board denied Bakersfield’s petition at its meeting on Wednesday, saying it would be too disruptive to the hearing process for the board to step in unless warranted by “extreme circumstances,” which were not defined.

But in voting for the denial board member Laurel Firestone made several revealing comments, including that she felt Water Board members “ … aren’t doing our job if we allow rivers to run dry because of diversions.”

“To the folks who’ve been working on this, at its core, I think most members of the public and those before us today have highlighted the real, extreme importance of having a river flowing in our streams and rivers,” Firestone said.

Though she didn’t want the board to “micromanage” the Administrative Hearing Office by approving Bakersfield’s petition for reconsideration, Firestone clearly came down on the side of water in the river saying, “Frankly, in my mind, (water flows) are necessary in this river.”

But that wasn’t the issue before the Water Board on Wednesday, Firestone noted.

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.