Lois Henry

Sunday, Nov 18 2012 02:00 AM

LOIS HENRY: Water, water everywhere--just not in the river

By Lois Henry

The Kern River may be dry as a bone but lawsuits over its waters are gushing from every tap.

Five (5!) lawsuits over the river were filed just last month. That brings the total to six so far, including one that was filed last October.

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Lois Henry hosts Californian Radio every Wednesday on KERN 1180 AM from 9 to 10 a.m. You can get your two cents in by calling 842-KERN.

I'm going to try and make this as painless as possible because it's important if you're interested in seeing water in the river again, to understand the basics of who has a stake in this. So don't give up, I'll break it down for you.

First, as always, the background.

The possibility that the public might again see water in the river came tantalizingly closer to reality back in 2007 at the end of a decade-long lawsuit between two local water districts.

That lawsuit between North Kern Water Storage District and Kern Delta Water District resulted in Kern Delta forfeiting 50,000 acre feet a year of its Kern River rights.

The judge ruled that even though North Kern had been using much of that water for many years, it did not own the water nor rights to use it.

The only agency with authority to determine such questions is the State Water Resources Control Board.

So the issue was sent up to that board and a number of entities, including North Kern along with the City of Shafter, the Kern Water Bank, Kern County Water Agency, Buena Vista Water Storage District and the City of Bakersfield all applied for the forfeited water.

Only the City of Bakersfield vowed to run it down the river.

In February 2010, the state board did, indeed, find that the Kern River was not fully appropriated and said it would process those applications.

Fast forward (I know, none of this seems fast when we have to look at that ugly dirt scar day after day knowing what a lush river it could and should be. But hang tight!) to this past September when Bakersfield certified an environmental report outlining how it would use the forfeited water plus other water sources to keep the river flowing.

The city's environmental document listed 160,000 acre feet in its plan. That would come from several different pots.

There's the 50,000 acre feet of already forfeited water, about 40,000 acre feet of water that possibly could become forfeited and 70,000 acre feet of water the city owns but had sold under long-term contracts that are now expired.

That so-called "contract water" spawned the first lawsuit last October by North Kern, which argued the city couldn't take its water back because it didn't have a real need for it yet. Never mind that it's the city's water and the contracts are up, duh.

That was just the beginning of the legal antipathy toward the city's plan to rewater the river.

North Kern, Kern Delta and the Kern Water Bank also filed lawsuits late last month against the city over its environmental report on putting water back in the river.

They're all arguing essentially the same thing, that if the city takes the forfeited, contracted and other water away from current uses it will impact farming and water banking operations by reducing groundwater in northern Kern County.

The entities feel the environmental report should have addressed those adverse impacts before being approved.

The city has answered that, since it has no idea if the state board will grant it the water, or how much water would be granted, it can't say just yet what the impacts are other than to say there might be some impacts.

OK, so that's four of the six lawsuits.

The other two were filed against Kern Delta by Bakersfield and North Kern over that district's plans to use more of its Kern River rights.

Kern Delta started with rights to about 250,000 acre feet of Kern River water. But it has only ever used about 167,000 acre feet. Under the "use it or lose" it rule of water law, Kern Delta lost rights to 50,000 acre feet, a judge ruled.

That left 33,000 acre feet possibly in play, and Kern Delta wants to find a way to hold on to it. So it came up with its own environmental document outlining various projects that it said showed a need for the 33,000 acre feet

Kern Delta tried this before, once in 1980 and again in 2006. Each time, it was slapped down by North Kern and Bakersfield, both of which have historically used the water that Kern Dela let slide down the river.

North Kern, in its lawsuit, is arguing that Kern Delta's environmental review to justify increased use doesn't examine how it would affect groundwater elsewhere.

The city's suit, meanwhile, slammed Kern Delta's environmental documents as vague and misleading saying the district has no genuine need of the water and wants to sell out of county.

Kern Delta's general manager has told me that's not true and sales would only happen in big water years when there's no where else to put it.

Either way, the city says without a legitimate use, that 33,000 acre feet should also be deemed forfeit and sent to the state board to determine its ownership along with the 50,000 acre feet the board is already mulling.

To recap:

Kern Delta lost 50,000 acre feet of river water. It stands to lose another 33,000 acre feet so it's trying to find a parking place for that water.

North Kern and Bakersfield are suing to stop that process (two lawsuits).

At the same time, Bakersfield has plans to use the 50,000 acre feet of already forfeited water, plus possibly more Kern Delta water and 70,000 acre feet of water it had sold under long-term contracts that are up.

North Kern is suing to force the city to continue those contracts (one lawsuit).

And North Kern, Kern Water Bank and Kern Delta are suing to halt Bakersfield's plans for the rest of that water saying the city hasn't properly considered the impacts to other areas (three lawsuits).

In the background of all this is the State Water Resources Control Board, plodding along processing the applications for the original 50,000 acre feet of forfeited water.

Shwew! I know it's a lot to take in. And it's going to take a while, but I have faith the river will eventually win.

Meanwhile, when people ask, as they often do, "When are we going to get water back in the river?" for now, my answer is: "Pray for snow."

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com

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