TheBakersfieldCalifornian.com

By LOIS HENRY

Californian staff writer

e-mail: lhenry@bakersfield.com

Depending on how a Kern County judge rules in the next few weeks, the fight for the Kern River could continue moving forward, or go back to square one.

Judge Steve Schuett heard lengthy arguments Wednesday on a lawsuit attempting to derail an historic decision last year by the State Water Resources Control Board declaring the Kern River not fully appropriated.

That declaration means there could be river water up for grabs.

The tricky part of that declaration is there are two "pots" of water under review by the board.

There is the 50,000 acre feet of "forfeited" water that popped onto the board's radar after Kern Delta Water District lost it in 2007 following a lengthy court battle.

Then there's water known as "intertie water."

The city of Bakersfield, along with several local agricultural water districts, all applied for the forfeited water almost immediately. Only Bakersfield has pledged to run that water down the river.

In the course of holding a hearing on the forfeited water, the state board also delved into intertie water.

This is flood water, essentially. Every few years, the Kern runs so high that all rights holders and even some non-rights holders get all the water they can handle and then some.

The excess water is then run through a structure known as the intertie and dumped into the California Aqueduct.

Because that water isn't claimed under any existing rights and isn't otherwise being put to beneficial use, the board declared, it's excess and therefore the river is not fully appropriated.

The board also said it would decide what, if anything, to do with the 50,000 acre feet of forfeited water as it processed the applications for that, as well as intertie water.

The ag water districts disagreed with how the board came to that conclusion and sued.

The districts, known collectively as North Kern, include North Kern Water Storage District along with the city of Shafter, Buena Vista Water Storage District, Kern County Water Agency and Kern Water Bank.

They argue the board erred in a number of ways. First, they say, the board didn't properly notify them that intertie water would be a part of the process. Second, the order says intertie water is in excess of existing rights but the board never did a full examination of Kern River rights.

They want Schuett to either vacate the board's order declaring the Kern River not fully appropriated or remand it back to the board with instructions on redoing the process properly.

Attorneys for the state board and city of Bakersfield argued back that the North Kern group absolutely knew intertie water was on the table.

The North Kern group tried to have testimony about intertie water disallowed at the board's hearing back in the fall of 2009, but they didn't object to a city witness' lengthy testimony about it and even one of their own witnesses testified about intertie water, the attorneys said.

And, they added, the board's order wasn't based on water rights, simply on the physical amount of water.

"Your honor, they're grasping at straws, trying to find a technicality to avoid what they clearly knew was going to happen," Bakersfield's attorney Colin Pearce said. "It's a ridiculous argument."

Schuett said he would have a ruling soon, which could mean a few weeks or up to 90 days.