By LOIS HENRY, Californian columnist, lhenry@bakersfield.com
http://www.bakersfield.com/News-sections/take-our-river-back/2010/05/06/lois-henry-how-the-kern-river-is-divvied-up.html
For more than a century, fights over the Kern River have pitted ag against ag or, more recently, ag versus urban uses.
But really, there’s a third right that until now has been ignored — the public’s right to simply have a river.
That right, known as the public trust doctrine, may have the power to revive at least a portion of the river.
In an historic ruling, the State Water Resources Control Board declared the Kern River not fully appropriated in February. Now, the board is mulling how much water may be available and who should get it.
For the first time in 150 years ago, the public’s rights are just as strong as any of the powerful ag districts vying for that water.
Understanding who owns the Kern River is vital to the debate now before the state.
Rights to the river (focusing only on water from the mouth of the canyon west) are complex and multi-layered but actually rest on a fairly simple foundation.
First point Second point
Back in 1880, a fight over Kern River water erupted that would ultimately create new law in California.
People with names we still know today, if only from housing tracts, like Haggin-Tevis and Miller-Lux got into a nearly decade long legal battle over who the water rightfully belonged to.
As early as the 1860s, the Haggin-Tevis side had been developing property to build their farming empire and were taking more and more water from the river through canals that moved it far from its source.
In 1879, the Calloway Canal was completed. It was so big, it literally siphoned the river dry to irrigate Haggin-Tevis lands north of town.
The success of the Calloway Canal was a disaster to Miller-Lux, which had property along the river, riparian lands, west of town and needed the water for cattle and grazing lands.
Off to court they went and thus were born two of California’s main water rights principles, prior appropriation (Haggin-Tevis, who were using the water first) versus riparian (Miller-Lux, who had land on the river).
The riparian right actually won, but then Miller-Lux made a deal with Haggin-Tevis to divide the river on their own terms. It’s known as the “Miller-Haggin Agreement.”
Kern River water would be measured above Gordon’s Ferry at a site known as “First Point of Measurement.”
One third of the water during the six spring and summer months would belong to downstream lands — Miller-Lux. That water would be delivered in undiminished quantities to a site known as “Second Point of Measurement,” just east of Enos Lane.
Haggin-Tevis, who later formed the Kern County Land Company, and several “upstream canal companies” would get the remaining two-thirds of the river during that six month period.
All of the First Point rights that Haggin-Tevis owned are now owned by the City of Bakersfield and Kern Delta Water District. Miller-Lux’s Second Point rights are now owned by Buena Vista Water Storage District.
Shaw Decree
Layered over the Miller-Haggin Agreement is the “Shaw Decree.”
This outlines the priority of First Point rights between Haggin-Tevis and the “upstream canal companies.”
Back in the day, farmers were slapping up weirs and digging their own ditches willy nilly. Those ditches later became independent canal companies. It wasn’t long before squabbles erupted over how much water could be taken from the river and when, so off to court it went again.
In 1900 a Kern County Superior Court judge named Lucien Shaw issued a decree that detailed the areas each canal company served and the priority of flows each company was entitled to based on the amount of water in the river.
At the time, there were more than 30 individual canal companies. Most were consolidated by Haggin-Tevis’ Kern County Land Company and the rights given to those canals as outlined in the Shaw Decree still stand.
North Kern and the ’52 Agreement’
It’s through many of those Kern County Land Company canals that North Kern Water Storage District has rights to use Kern River water.
The Land Company created North Kern in the 1930s to administer water to large tracts of land it owned north of the river.
South-of-the-river farmers feared the Land Company would give water they had been using to North Kern. In response, the Land Company gave North Kern rights to use some water from certain canals in perpetuity but promised no ownership of water rights would go to North Kern.
That arrangement was later codified in what’s known as the “1952 Agreement.”
Lost water of Kern Delta
The Kern Delta Water District was formed in 1965 to buy state water and ultimately bought substantial Kern River water rights on the coattails of the city’s 1976 purchase from Tenneco West (which had bought the Land Company in the late 1960s).
As the city’s deal was being worked out, it made a side deal with Kern Delta to sell them the five canals that had historically served those south-of-the-river farms: Kern Island canal (whose water runs through Mill Creek in downtown Bakersfield), Eastside, Buena Vista, Stine and Farmers canals.
Per the Shaw Decree, the Kern Island Canal has the choicest of all the First Point rights, taking the first 300 second feet off the river no matter what the river’s flow is. On average, that and the other canals gave Kern Delta rights to about 250,000 acre feet a year, or about half the average annual flow, of the Kern River.
Historically, the canal companies acquired by Kern Delta used only about 60 percent of that 250,000 acre feet a year and released the rest back to the river. The city picked up to a third of that so-called “release” water and North Kern used the rest.
Kern Delta began using more of its water as more land went into production, cropping patterns changed and the district felt it needed to solidify its rights.
North Kern sued in 1994 under the “use it or lose it” theory of California water law.
In 2007, a judge agreed that since Kern Delta hadn’t used all of its water rights, a portion of those rights were forfeited.
But the court left the question of who should own that water, about 50,000 acre feet in an average year, up to the State Water Resources Control Board.
Earlier this year, the state board agreed there was unappropriated water on the Kern based on flood waters.
But the board also said it would work out the issue of Kern Delta’s forfeited rights and who, if anyone, should get that water as it processed applications for the flood water.
Recap
So the Kern’s ownership goes like this:
First Point, owned by Kern Delta and the City of Bakersfield and Second Point, owned by Buena Vista Water Storage District.
There is another right that was established by the Nickel family for Lower River, or so-called Hacienda water, which is only available in flood years. The Nickels sold that right to the Kern County Water Agency in 2000.
Layered over that basic division are obligations mostly attached to Bakersfield’s First Point rights to make sure Second Point gets all its water “undiminished” and to honor use agreements with North Kern.
Public trust
Until recently, the public trust as it relates to the Kern River was virtually ignored.
But under California law, this is a fundamental and legitimate right that the State Water Resources Control Board must consider.
The public trust doctrine deems that resources such as rivers are so vital they must be held in trust for all the people.
People in Bakersfield have been leery of asserting that right. But we have in the past when city leader sued Tenneco West (the successor to the Kern County Land Company) in order to protect the public’s inherent water rights.
Tenneco settled by selling the city substantial rights to the river. The water has been tied up in long-term contracts with several local ag districts to pay for the rights.
When those contracts are up the city will have some water to run down the river. But the majority of that water was bought to help facilitate Bakersfield’s growth. When real estate comes back, the water will go away again.
In its application to the state for the forfeited 50,000 acre feet of Kern Delta water, the city has pledged to run it down the river channel.
Through all the twists and turns of the Kern’s long history, no one has ever promised that before.