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By Lois Henry
I know you've all been on the edge of your seats wondering what the heck that recent legal ruling on the Kern Water Bank really means.
Here's the short answer: No one knows yet. But it could be big. Very big. Like, big enough to possibly jeopardize a major housing development planned by Tejon Ranch and/or put a serious hurt on mega corporate farming operations in Kern County.
Lois Henry appears on "First Look with Scott Cox" every Wednesday on KERN 1180 AM from 9 to 10 a.m. The show is also broadcast live on www.bakersfield.com. You can get your two cents in by calling 842-KERN.
Kern Water Bank
The Kern Water Bank Authority includes the privately owned Westside Mutual Water Co. (Paramount Farms), Wheeler Ridge-Maricopa Water Storage District, Dudley Ridge Water District, Semitropic Water Storage District (all of which encompass large tracts of Paramount lands), the Kern County Water Agency and Tejon-Castac Water Agency.
Unlike other water banks, Authority members are the only entities allowed to bank water in the Kern Water Bank.
By agreement, 6 percent of all water banked is left in the ground.
All water entering the bank is metered or tracked by third parties such as the Department of Water Resources, Bureau of Reclamation or Kern County Water Agency, not the water bank itself.
That kind of big.
Or, it could be just another turn of the screw in the water world. We'll know in a few months.
For those of you who somehow missed the news, Sacramento Superior Court Judge Timothy Frawley ruled earlier this month that the water bank's environmental impact report (EIR) was inadequate.
He said the EIR failed to properly describe, analyze and mitigate potential impacts, "particularly as to groundwater" in relation to the operations of the water bank.
It was a narrow ruling focusing just on the water bank's operations, not its ownership and other issues brought up in one of the two lawsuits Frawley considered.
Notably, Frawley did not order the bank to cease operations until a new EIR is written. In fact, he didn't order a new EIR be written, just declared that the existing one was no good. He set a "remedy" hearing for early September at which he'll ask the plaintiffs, Rosedale Rio-Bravo and Buena Vista water storage districts, and the Center for Biological Diversity, what they feel is the best fix.
Both plaintiffs told me they're still working on remedies.
The Kern Water Bank Authority, which operates the bank, will be weighing options but otherwise moving forward, said director Jonathan Parker.
"Under normal circumstances, they (the Department of Water Resources and Kern Water Bank) would have to start from scratch," said Dan Raytis, attorney for Rosedale/Buena Vista. That would mean a whole new EIR.
"But this is far from a normal case."
Without getting too deep into the history (which Frawley did a great job of laying out in his rulings; see the side bar for directions to look them up online), the water bank is part of a larger overall "project" called the Monterey Agreement. That 1994 agreement changed how the Department of Water Resources operated the State Water Project.
The Kern Water Bank was just one component of that agreement so Raytis said it's unclear what a new EIR, if that's what the judge wants, would cover.
For Rosedale/Buena Vista, a new EIR would do what the old one didn't: closely analyze how the Kern Water Bank operates and what effect its operations might have on groundwater for neighboring properties.
Until that's done, the water districts' complaint said, the bank should suspend operations or prove it can operate without harm to neighbors.
Adam Keats, attorney for Center for Biological Diversity, was somewhat flummoxed by Frawley's ruling and what kind of remedy it would allow.
Like Rosedale/Buena Vista, the Center's lawsuit also questioned the EIR as to the water bank's operations.
But it also argued that the transfer of the bank from the Department of Water Resources to the Kern Water Bank Authority was inadequately analyzed by the original EIR.
Frawley shot that argument down, essentially saying that, for better or worse, that issue was decided in 2003.
"What's it mean if only part of the EIR is voided?" Keats asked. "If you decertify an EIR that's tied to project approval then what is the approval that gets voided? The simple answer is the Kern Water Bank. But this is a convoluted case."
My question is, if the judge ultimately rules that the Kern Water Bank must cease operations, what does that mean for the 750,000 acre-feet of water banked there now? In particular, I wondered, about the 30,000 acre-feet Tejon has banked.
That was one of three sources Tejon said would support its 3,400-home Tejon Mountain Village, the other two being the State Water Project and recycling.
Tejon spokesman Barry Zoeller told me the ranch isn't concerned a whit about Frawley's ruling.
The ranch has many different water supplies and storage options, he said. And the banked water is just for backup, in case the state comes up short.
It's true the ranch has been buying water from a variety of sources recently.
But the EIR for Tejon Mountain Village specifically names water banked in the Kern Water Bank.
If that water is caught up in some kind of freeze or injunction, what then?
Same question for Paramount Farming.
Paramount is the main player in the Kern Water Bank Authority and likely has the most water socked away there. What could this ruling mean for that massive farming operation?
That's getting way ahead of where the case is at the moment, Keats reminded me. For right now, he's focusing on remedies.
"In addition to shutting down the project, we may also look at the ill-gotten profits from the Kern Water Bank operating on an improper environmental review," he said. "Whose pockets did they go into? And who needs to pay up?"
He wasn't just talking about money, but more importantly, its liquid profits -- water.
"That's all going to have to be on the table," Keats said.
Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Reach her at 395-7373 or email firstname.lastname@example.org.