By Alan Riquelmy, Courthouse News Service
A Kern County judge heard arguments Friday in a case targeting water flows in the Kern River and whether they’re sufficient to support its fish.
Groups including Bring Back the Kern and the Center for Biological Diversity want the city of Bakersfield’s water diversions from the Kern blocked. They filed suit in late 2022, saying Bakersfield had conceded that its water diversions have led to damage and threatened the quality of the river’s ecosystem, including fish and wildlife.
That reduction in riparian and wetland habitats has led to a decrease in wildlife, the environmental groups say.
At the hearing Friday, the groups asked Kern County Superior Court Judge Greg Pulskamp for a preliminary injunction requiring Bakersfield to maintain a sufficient amount of water in the Kern River that would keep its fish in good condition.
The judge did not rule on the injunction request Friday, saying he anticipated doing so in two to three weeks.
Attorney Adam Keats, arguing for the environmental groups, said the law requires the city to maintain a sufficient amount of water flowing to sustain fish. However, a majority of that flow is diverted for agricultural use.
“I think it’s an undisputable fact that the river is dry most of the time,” Keats said. “It is not a suitable habitat for fish.”
The city must allow enough water through its dams, as the Legislature has deemed fish get the water first, Keats said.
According to Keats, the environmental groups aren’t asking for all diversion to stop. Bakersfield needs 24,000 acre-feet a year for municipal purposes. It can get that and still provide enough water for fish. The vast majority of water flows are for irrigation.
“Agriculture can not jump in front of fish,” Keats said of priority. “The fish come first.”
Granting the injunction would hurt no one and instead only impact a few wealthy people’s profits, Keats said.
Attorney Colin Pearce, arguing for the city of Bakersfield, called the environmental groups’ request “vague” and “uncertain,” adding that he didn’t know how the city would comply if an injunction were granted.
“It’s broad,” Pearce said of the requested injunction. “It’s absolute.”
Pearce noted that Keats referred to “dams,” which he said aren’t on the river. Instead, there are weirs which don’t obstruct water, but instead allow it to flow through and over them.
The environmental groups don’t state how much water is necessary to keep the fish well, Pearce argued. Instead, they say that the city has experts and should correct the issue.
“That’s not how this works, your honor,” Pearce said.
Scott Kuney, an attorney representing the North Kern Water Storage District, said an injunction would directly affect water rights for agricultural purposes. The city has contractual obligations to provide agricultural customers with water. An injunction would cause change to long-standing operations, leaving people without water unless the area was experiencing extremely wet conditions.
Multiple attorneys said this year has brought significant rain, though conditions like that have occurred only three times in about 120 years.
The Center for Biological Diversity has said the city’s actions violate the public trust doctrine, a legal principle requiring governments to protect resources like the Kern River.
The headwaters of the Kern River are near the base of Mount Whitney. From there, it flows to the San Joaquin Valley floor and through Bakersfield, a city of over 400,000 people.
This article was first published at the Courthouse News Service.
