Leave ample water for all parties

Ihave been following with great interest the activities to restore and maintain a flowing Kern River through Bakersfield. The collective efforts of Bring Back the Kern and its supporters have resulted in an injunction from the Superior Court that, in the near term, achieves this ground-shifting outcome.

Lois Henry (SJV Water) has done a masterful job reporting on all of this and deserves praise. Though I enjoyed her writing back in the day when it was laced with her bold opinions, her reporting on the Kern is important, sober and accurate. Most recently she reported on the successful efforts by BBK in partnership with Water Audit to advance a successful legal strategy based in a Department of Fish and Wildlife code.

In short, this code (or law) requires flows to be maintained in rivers sufficient to maintain fish populations below dams. As a result, a preliminary injunction was issued to keep water in the river.

With all of this as a backdrop, this issue has massive implications. On the one hand, having a perpetual river would enrich, improve and sustain the river. On the other hand, if the injunction becomes the new “Law of the River,” the various agricultural right holders will be adversely impacted in trying to figure out how to recover some of that “lost” of water. But, this water will not be lost. It will be relocated and transformed.

Let me explain. The surface water that has been historically diverted from the river by farming interests, east of Manor Drive, would be allowed to naturally flow west. As it travels through the city, it seeps into the underground. That seepage travels vertically by gravity though the soil under the riverbed. It ultimately joins the existing water table and accumulates there. In simple terms, this surface water will become transformed to groundwater and relocated west from where it has been historically diverted to agriculture. The water management trick in all of this will be to figure out a way to recover that groundwater and efficiently transfer it back to the agricultural water users. There are solutions to this and those will be explored in a subsequent column.

The handwriting appears to be on the wall regarding the Kern. Public opinion, but more importantly, the law appears to be tilting the scales in favor of a wet river. Similar changes have occurred on the San Joaquin River and other California creeks and streams.

The judge has ordered all parties in this matter to arrive at a solution. This will require cooperation, creativity and compromise. A winner-takes-all outcome is not necessary nor would it be good for the river or agriculture.

There are solutions but with all things water they are complex and layered. The necessary experience and talent exist to collectively fashion a mutually beneficial outcome.

It’s conceivable that the agricultural water users will appeal the current injunction to the highest level. But, appealing comes with risk of a new decision that is potentially worse for agriculture. Judge Pulskamp’s preliminary injunction was issued because he felt the arguments presented by Water Audit were persuasive and would win at trial.

However, that decision relies on what I thought was a novel interpretation that a weir qualifies as a dam. As a career water guy, I found that interpretation worth exploring in greater detail and will provide additional commentary in a later column. For now, I will park this initial collection of perspectives with the hope of contributing to an ongoing discussion that works toward a solution that will leave ample water on the table for all parties.

One of my favorite sayings is that “the greatest leaders take no victims, and the greatest victories have no losers.” Let’s collectively work toward a solution on the Kern that is without victims and losers.