Old Kern River map
Category Archives: Kern River basics
One in a series of stories from May 2010 explaining who owns the Kern River and how it’s used
These guys
These two old time fellas, James Ben Ali Haggin and Henry Miller set the “law of the river” for the Kern after a 10-year lawsuit that went all the way to the Supreme Court and was eventually settled between the two in 1888.
That lawsuit also established California water law regarding riparian vs. appropriative rights. And all of that from who owns which rights on the Kern to California law is still in place today.
So these are the grand poohbas of water.
Selling Kern River water south is drought protection…huh?
http://www.bakersfield.com/News-sections/take-our-river-back/2010/05/06/lois-henry-selling-water-out-of-kern-is-drought-protection.html
As the fight over forfeited Kern River water has heated up, Buena Vista Water District has come out swinging — hard.
Which is interesting for a number of reasons.
One, because Buena Vista’s rights aren’t in question. The water that may be up for grabs is First Point water and flood waters. Buena Vista has rock solid rights to Second Point water.
And two, because while Buena Vista officials have decried the very idea of running that forfeited water down the river saying the loss to local farmers now using it would be devastating, the district has been selling 11,000 acre feet a year, backed by its own Kern River supply, to Castaic Lake Water Agency for $550 an acre foot to support homes and businesses hundreds of miles away.
And it may be positioning itself for even more such sales.
As to the Castaic sale, General Manager Dan Bartel explained that the district banks much of its river water and uses its state supplies to fulfill the Castaic contract.
If that state supply gets low enough, though, Buena Vista must meet that Castaic obligation and that means Kern River water will go over the Grapevine.
“We could potentially have to pump water out for Castaic,” Bartel said.
Such sales, Bartel and other water district officials say, benefit locals by helping pay for facilities to better use water here and by keeping costs low to farmers, who can then keep more jobs filled or more land in production. The trickle down theory.
In Buena Vista, costs to members are low, going from a per acre assessment of $38 10 years ago to $20 now.
But that’s not the whole picture.
Water use dropping
According to an environmental impact report on several new projects planned for the district, water use has dropped in Buena Vista as cropping patterns have changed and more owners have taken land out of production putting it under wildlife conservation easements.
Water use peaked in the mid-1970s at 113,000 acre feet a year and has steadily declined to an average of 99,500 acre feet a year, according to the environmental report.
The projects include groundwater banking to capture and recover high flow Kern River water (these are flood waters that exceed Buena Vista’s regular allotment of river water), land acquisition and a new turnout in the California Aqueduct.
The environmental document also says Buena Vista has a positive groundwater balance.
So, Buena Vista has good ground water, solid Kern River rights and less in-district demand.
All those factors make it seem as though Buena Vista is gearing up to market more of its water out of the county.
Given state supplies are sketchy (it only received 13,000 acre feet of its contracted 21,300 acre feet last year), that leaves the banked Kern River water as Buena Vista’s strongest asset.
That is not the intent of the program, Bartel said. They just want to manage their water more efficiently, he said.
Besides, the relatively few number of wells included in the banking operation mean it could never pull water out on the scale of say Kern Water Bank, which can suck hundreds of thousands of acre feet a year out of Kern’s ground. By comparison, Buena Vista’s project would only be able to recover 10,000 to 15,000 acre feet a year.
But, yes, he acknowledged, the new facilities could lead to more out-of-county sales. And yes, that could mean Kern River water.
“That’s not our intent, in fact I hadn’t even thought about the water going out of county,” Bartel said. “But these days everybody is trying to put whatever water resources they have to the best value.”
Sales just another tool
The Kern River is one of the most variable rivers in the state, overflowing one year and dead dry the next. Harvesting as much flood water as possible is good whether local farmers get it or it’s sold out of county and the money used to improve water management locally, he said.
“It’s drought protection,” Bartel said of the district’s projects.
Eric Averett, general manager of the Rosedale-Rio Bravo Water Storage District, which also sells water to developers and others out of the county, agreed with Bartel.
Sales make sense if they benefit the district, such as providing money to build more facilities to capture more water.
Rosedale’s contract with Coachella Valley developer Glorious Land Company gives the developer between 1,300 and 1,500 acre feet a year for the next 30 years, escalating each year as the development is built out.
What happens at the end of that 30 years?
“They have to extend the contract or find water somewhere else,” Averett said.
He had no concerns that such long-term sales to hard water needs could eventually result in the permanent loss of local water.
Bartel said selling water out of county may seem counterintuitive when there’s so much talk about the need for water locally. But it’s not necessarily bad as long as it’s done on a term basis.
“It’s short-sighted for any district to sell their water rights,” he said.
Term contracts though, even 30 or more years, are a wise way to use excess water.
He compared it to the City of Bakersfield selling water to local ag districts under 35-year contracts to pay off the bonds they used to buy the water rights.
“If they hadn’t been able to contract that water out, they wouldn’t have been able to buy the rights.”
The big difference, of course, is the city sold the water to local districts, keeping it in our groundwater basin. When it reverts back to the city, its policy is it will never be sold or transferred out of the county.
Mystery on the river
When it comes to sales, apparently, it’s all “just business” for Bartel and other water district officials.
But Buena Vista’s reaction to the city’s position on the 50,000 acre feet of forfeited water seems much more personal.
Bartel has said his fear is the State Water Resources Control Board, which is deciding the fate of the forfeiture water, could tinker with other rights on the river.
In its environmental documents, however, Buena Vista states that the forfeiture water issue would, in no way, affect its own supplies.
The 50,000 acre feet of forfeiture water popped up after a court found that an upstream district had lost some of its river rights for lack of use. The matter was taken to the state water board where the city and four other districts — including Buena Vista — petitioned to have the river deemed not fully appropriated. Each entity also applied to get that water.
Even so, Bartel singled out the city as the bad guy.
“The city is the only one looking to open up the river,” Bartel insisted.
And “opening up the river” is clearly something that unnerves Bartel and the other districts.
As Bartel said in response to an explanation that this series would attempt to take the mystery out of the Kern River:
“When it comes to the river, mystery is a good thing.”
How one ag district’s lawsuit reignited the fight for the Kern River
http://www.bakersfield.com/News-sections/take-our-river-back/2010/05/06/lois-henry-district-s-suit-could-forever-change-the-river.html
Two local ag water districts went to war 16 years ago, eventually battling to a draw in 2007 when a court ruled that one district had forfeited some of its rights to Kern River water but the other district didn’t get those rights.
It was a classic case of “be careful what you wish for” for North Kern Water Storage District, which brought the suit against Kern Delta Water District.
North Kern won the argument, but now the water is in the hands of the State Water Resources Control Board, which could give the water to anyone. Or the board could deem the water doesn’t exist at all and erase the right entirely if they find the river is oversubscribed.
With so much to lose, you’d think North Kern and Kern Delta would have worked out a private deal. But the two districts were born fighting.
North Kern was created first, in the 1930s by the Kern County Land Company. It covers 60,000 acres that straddle Highway 99 north of Bakersfield from northern Rosedale up to Shafter.
Right from the start, farmers in what would become Kern Delta, which covers 125,000 acres south of Bakersfield from Arvin to Enos Lane, feared North Kern was after their water.
They were right to worry.
The Land Company owned nearly all the canals that served Kern Delta farmers as well as nearly all the land in the North Kern district. Without a steady water supply, the land was worthless.
Kern Delta farmers could easily see where the Land Company’s economic incentives would lie. They raised a fuss and forced the Land Company company to curtail North Kern’s rights. North Kern could use some of the water coursing through the Land Company’s web of canals but not own it. That became what’s known as the 1952 Agreement.
Uneasy truce
In the 1970s Kern Delta bought rights to some river water. North Kern had been using some of that water all along and when Kern Delta wanted it back, North Kern sued.
That resulted in the 2007 judgment that 50,000 acre feet was forfeit.
Now, North Kern has the most to lose among all the players in this drama.
Richard Diamond, general manager of North Kern, and John Guinn, city manager of Shafter, said if that 30,000 acre feet is pulled out of North Kern it would devastate the district, the farmers and the area’s economy.
Aside from the Kern Delta water, North Kern gets about 100,000 acre feet a year from the river through the 1952 Agreement.
It also buys 20,000 acre feet a year from Bakersfield and has banking operations that bring in water from a variety of partners.
Oddly, Diamond wasn’t worried about the prospect of losing that 20,000 acre feet when North Kern’s contract with Bakersfield is up in 2012. It’s a small portion of the district’s overall water picture, he said.
And he wasn’t worried about giving up some of that 1952 Agreement water for urban use as Shafter develops.
In fact, North Kern fought Bakersfield tooth and nail in order to give, or sell, Shafter 1952 Agreement water.
Diamond said if Shafter built out to its full plans tomorrow, it wouldn’t suck that much water from ag interests.
But losing that 30,000 acre feet of Kern Delta forfeiture water would be a heavy blow, he said. Particularly in light of state water reductions which could cause adjacent districts to pump more groundwater.
Fighting the state board
“That water has always gone to the interests up here,” Guinn said. “If they lose water and we’re all pumping from the same basin, it could have a tremendous impact on our little community.”
So, it would seem logical for Guinn and Diamond to slap back any hands reaching for Kern Delta forfeiture water.
Instead, they’ve joined with the other districts — Kern Water Bank, Kern County Water Agency and Buena Vista — applying for the same water to oppose Bakersfield.
Each entity filed petitions to have the state board declare the Kern River not fully appropriated. And each one asked that the forfeited water be given to them.
If any one of them wins, North Kern loses.
Yet, North Kern, and the the other ag districts, are bitter only toward Bakersfield.
“The city has been a cheerleader for the state board process,” Diamond explained. “Otherwise, I don’t think the state would have found that there was unappropriated water.”
Bakersfield’s actions, Diamond said, “Put all the users at risk.”
However, the records show that it was North Kern that first filed with the state board, not Bakersfield.
Pointing fingers
Diamond said if Bakersfield wants to re-wet the river, as it has stated in its application for the 50,000 acre feet of forfeiture water, it could put water it currently runs in a lined canal back in the riverbed.
Or Bakersfield could run other supplies down the river and pump groundwater for its planned water treatment plants.
“Pumping would be more expensive and they don’t want to do that,” he said. “And that’s unfair. If they want a river, they should use their own water.”
It’s true the city delivers water to the Buena Vista district in a lined canal, but it’s obliged to get that water to them “undiminished” per rights and agreements dating back more than 100 years.
The water he’s talking about that’s destined for the treatment plants was purchased more than 30 years ago for the express purpose of sustaining the city’s growth. The economic slow down may leave some for the river, but eventually the water will have to be used for homes.
Finally, it seems, North Kern’s, and the other districts’, ire with Bakersfield comes down to fear. And Diamond thinks Bakersfield could use a bit more caution as well.
“I’m saying they should be concerned about how (the river) could be looked at by the state,” Diamond said.
“There are risks to everyone.”
Wheeling and dealing Kern’s waters a family tradition for the Nickels
To say Jim Nickel’s great-great grandfather, Henry Miller, would be proud of the family’s deal for “lower” Kern River water is an understatement.
Miller, who made up half of the 1888 Miller-Haggin agreement — what’s become known as “the law of the river” — would have been stunned at what his descendants pulled off in 2001 using the final vestige of their inherited river rights.
The family sold its lower-river “Hacienda right” to the Kern County Water Agency for $10 million in public bond money.
Good money, sure. But that wasn’t the sweetest part of the deal.
The Hacienda right is for high-flow water averaging 50,000 acre feet a year — nearly one-tenth of the capacity of Isabella reservoir. Except the Kern only runs that high every four or five years, which means it often gave the Nickels zero water. It was a golden egg, but an unreliable one.
Until the deal with the KCWA.
The Nickels got the taxpayer dough plus a hard-and-fast promise of 10,000 acre feet each year to be delivered by the agency anywhere in the state the family cared to sell it.
In exchange, the agency retained what it could of the remaining Hacienda water — when there is any. Plus they get 10 percent of every sale the Nickels make and have access to store what they can in Lake Isabella with up to 30,000 acre feet or so allowed for carryover. Given the price of water these days, that’s the real prize to the agency.
Guaranteed water
Drought, no drought, water problems in Sacramento, regulations run amok, nuclear attack, it doesn’t matter. The Nickels’ 10,000 acre feet a year of water is absolute.
It’s made them a fortune and will continue to do so in perpetuity.
“Yeah, certainty is worth a lot,” Nickel said.
About $30 million since 2001 alone as the Nickels have peddled the water around the state, including locking it up in two 35-year contracts with the controversial Newhall Ranch development and most recently with DMB Associates for 12,000 houses in Redwood City.
Though Nickel wouldn’t say how much he sells the water for, the agency’s 10 percent share has worked out to $3.2 million over the last decade.
Clearly, this has been a good deal for the Nickels and the agency.
More and more cities are looking for Central Valley ag water as a solution to their supply problems. But no one in Kern County is debating the wisdom of such permanent transfers or exchanges.
Kern River and far-flung sprawl
Since the Redwood City sale has come to light, at least some Northern California observers — who don’t want houses built on the salt marshes — are pushing back. They’re questioning not only the legality of such an elaborate water transfer but also the impacts to Kern County.
“The idea that there is a substantial amount of water in Kern County that is unneeded and available for sale without redirected impacts is fanciful,” Assemblyman Jared Huffman wrote to the Redwood City mayor on March 21 urging the council to kibosh the development. “In reality, California’s future water reliability and the Delta ecosystem will require fewer diversions of water from the Central Valley, not more.”
Reducing dependence on delta water by maximizing regional sources was adopted as water policy by the Legislature, he said. This deal flies in the face of that policy.
Huffman and others are also questioning the legality of these transfers, which have relied for the last 10 years on a single blanket negative declaration written by the KCWA saying any environmental impacts of exporting the water are outweighed by the overall benefits of the project as a whole.
Court rulings have held that such “netting of benefits,” rather than identifying exact benefits for each sale is a no-no, according to a report done by Redwood City on the possible use of the Nickel water.
“The statute of limitations has passed on being able to sue over that 2000 negative declaration,” said Stephen Knight, policy director of Save the Bay, which is opposing DMB’s project. “But it’s still a concern because Redwood City would have to redo CEQA (studies required under the California Environmental Quality Act) legally this time.”
It’s all good
Back here, we’re told it’s all good for us.
“It’s a huge benefit for Kern County,” Nickel said of the agency’s purchase of his family’s rights.
Before, he said, most of the Hacienda water couldn’t be captured and left the county, flowing out the Intertie and into the California Aqueduct to be used by folks on down the line.
Now, the agency can use Isabella and its water banks to regulate the water. They can store it for future use locally or sell it to keep costs lower for farmers who, in theory, then could hire more workers or fallow less land in lean water times. Essentially a “trickle-down theory.”
At best, though, it’s an indirect benefit and hardly seems worth the cost of tying local water up in houses hundreds of miles away.
Since the Agency bought Nickel’s rights, there’ve been only two years the river flowed high enough to produce Hacienda water, from which the Agency grabbed and banked 83,000 acre feet.
They may have been able to bank that much regardless of the Hacienda right since big flow years mean everyone gets a share if they have a place to put it, which the Agency has had since the 1990s with Kern Water Bank and its Pioneer Project.
Agency managers have said the purchase was the best way to keep the maximum amount of Kern River water here in our watershed.
“Otherwise, the Nickels could have sold all that water out of the watershed,” former Agency General Manager Tom Clark has said in the past and current General Manager Jim Beck agreed.
Not exactly. Without a banking facility, the Nickels couldn’t regulate the supply enough to ensure steady sales. Certainty, as Jim Nickel said, is worth a lot.
The art of the deal
Yes, the Nickels had been selling at least some of their Hacienda water for years, when they could.
It was a crap shoot though, even with the Isabella storage, Nickel said. In high-water years, no one needed it and they had to find places to park it. Lower-water years yielded smaller amounts or nothing at all, meaning smaller paychecks or zero sales.
Those feast or famine days are gone for the Nickels, who never could have nailed down such long-term development contracts as they have with Redwood City and Newhall Ranch without the certainty this deal gave them.
More than 100 years ago, Nickel’s great-great grandfather, Henry Miller fought and won an epic legal battle to keep Kern River water in the river.
What would he think of Nickel’s deals today?
Nickel laughed.
“You have to remember the rest of the story,” he said. “Yes, he got the riparian rights. But then he turned right around and told the Kern County Land Company, ‘You build me a reservoir and I’ll give you two-thirds of the river.’
“He violated his own law.”
Making a deal, it seems, has always been the true “law of the river.”
Kern River divides city and agency
http://www.bakersfield.com/special-sections/take-our-river-back/2010/05/06/lois-henry-river-divides-agency-city.html
It could not be more clear that putting water in the Kern River was one of the goals of a series of projects proposed by the Kern County Water Agency back in 2000.
The very title of the document used to apply for $23 million in state bond money was “Kern River Restoration and Water Supply Program.”
Paragraphs like this were rife throughout the document:
“The project plans to assure through acquisition of the Lower Right and by annual water exchanges with local water districts having other Kern River Water rights, that the heart of the City of Bakersfield (from Manor Street downstream to Allen Road) will enjoy a 12 mile stretch of re-watered Kern River, at least from May through September.”
It worked. The Agency got its $23 million in taxpayer money, bought the Lower River (or Hacienda right) for $10 million from the Nickel family and built its facilities.
And that document that glowingly promised taxpayer money would help restore the river?
It’s been used over and over for the last 10 years as blanket environmental paperwork allowing Kern River water to be sold to support urban sprawl hundreds of miles away.
Meanwhile, the river remains dry.
Good deal for Kern
The Agency argues it has lived up to promises made in that 2000 document, a negative declaration.
And it has done a great deal to re-wet the river even though that was never the intent of the projects funded by the 2000 bond money, insisted General Manager Jim Beck.
“We’ve consistently demonstrated a willingness toward restoring the river as related to the Kern River Parkway plan and I feel the Agency has complied with the spirit of that negative declaration,” he said.
The Parkway plan was a collaborative agreement that put water from the Agency and the city in the river during summer. The water was already destined for river flows, the agreement simply moved it to summertime.
But the Agency pulled out of the Parkway agreement, which it heralded in the 2000 document as “landmark,” a few years after getting the bond money.
And wells that were funded with $3 million of that $23 million and were intended to put water in the river during dry years have never been used. The Agency said the city was supposed to foot the operating bill, even though the 2000 document states that in dry years, “KCWA pumps the Urban wells.” The city has said operating the wells was too expensive.
Beck said the Agency had to pull out of the Parkway agreement because water purveyors, including the city, demanded more treated water, which meant the agency had to expand its plant and pull water from other sources like the river.
“We had no choice in that matter.”
Yes, the city and others asked for more treated water which required expansion of the plant. It should be finished later this year.
The Agency, however, yanked its water from the Parkway agreement in 2006.
A curious stance
While this could all be considered water long gone under the bridge, it does serve as a curious backdrop to an even more curious stance by the Agency against the city’s latest quest to get water in the river.
About 50,000 acre feet a year of Kern River rights were deemed forfeit by an upstream water district. The city has applied to the State Water Resources Control Board for that water.
Four other agricultural water districts — including the Agency — also applied for it.
Only the city has promised to run the water down the river.
If the city gets it, that would actually help the Agency live up to promises made in its 2000 document as well as those made back in the 1970s to run excess water down the river to recharge groundwater in exchange for charging the public well and property taxes for its water treatment operation.
Yet the Agency has joined the other ag districts against the city, filing joint petitions to try and keep the state out of the Kern River and even having their attorneys work together at hearings.
Beck didn’t see it that way.
“We’re not fighting against the city,” he said. “The actions we’ve taken are to ensure we have a say in defending our rights to the Kern River Water we’ve acquired. Our decision to file a petition with the state was defensive.”
That has proved prudent, he said, as the state board found there is loose water on the river based on flood waters that escape to the California Aqueduct.
“That is of grave concern to the Agency,” he said because the Agency’s river rights, purchased from the Nickel family in 2000, are based on high flow years.
The Agency did not apply for that water, however. Its petition and application focus only on the 50,000 acre feet of forfeiture water, not flood water.
The Agency has estimated the forfeiture water may yield up to 2.279 million acre feet a year. In its application, it said it would store some of the water and use the rest for irrigation and unspecified municipal uses.
That’s a heck of a lot of water.
Not enough, apparently, to spare for the river.
Bakersfield’s fight for the Kern River never ends
http://www.bakersfield.com/special-sections/take-our-river-back/2010/05/06/lois-henry-river-divides-agency-city.html
When the City of Bakersfield bought its extensive water rights to the Kern River more than 35 years ago, it was a defensive move no one ever thought would be needed.
A brimming aquifer and river flowing through town made water a non-issue for Bakersfield. The city always had enough, more than enough in some years.
Then in the late 1950s and early ’60s, things changed. Groundwater levels dropped, wells had to be deepened regularly and the river went dry. Not unlike today.
City leaders began a years-long investigation to find out where our water had gone.
Bakersfield had never been a party to the deal-making and lawsuits on the Kern River. Instead, powerful ag interests divvied up the river amongst themselves.
The city found its river, and the groundwater it supplied, had gone to support vast farming empires, sometimes on far-flung lands.
Weirs upstream were taking bigger and bigger bites of the river. More groundwater was being pumped out from under the city for new ag lands.
And Tenneco West (the successor to the Kern County Land Company) had built a concrete-lined canal to deliver water west of town that was depriving the city of even that amount of percolation.
The city’s water and its implicit right to Kern River water was, literally, being pumped away.
Getting the water back
City leaders tried to negotiate with Tenneco but got nowhere.
So they filed several lawsuits asking the courts to, among other things, determine the river’s ownership, declare that the city had rights to the water and stop ag interests from taking more water than their rights.
Tenneco settled by selling all its rights and facilities to the city for $17 million, giving Bakersfield rights to an average 160,000 acre feet a year of pristine Kern River water.
In order to pay off that $17 million, Bakersfield locked up 70,000 acre feet a year of its river water in long-term contracts with several agricultural water districts. Those contracts are up in 2012.
The rest of the water has been used to accommodate growth, bank for dry years and sold to other local ag districts as requested.
Even with its Kern River rights, though, Bakersfield’s groundwater levels have dropped drastically in the last three years and the river, again, is dry.
Almost back where we started
With the city’s river water tied up in ag contracts, it hasn’t had extra for the river channel. And even after the 2012 contracts come due, that water is slated for future growth. The city could run some down the river while housing is still in a slump, but it will eventually go to growth.
That’s why the city is seeking ownership of 50,000 acre feet of river water forfeited by an ag district in 2007. The city has vowed to keep that water in the river.
Other water districts, including the Kern County Water Agency, are also seeking that 50,000 acre feet of water, for irrigation and unspecified municipal uses.
The Agency and the city have long had a tense relationship so this latest face-off should come as no surprise.
The city is still upset over an agreement for the Agency to put water in the river to recharge the aquifer in exchange for having levied pump and property taxes (about $5 million a year) on Bakersfield residents over the last 30 odd years.
Agency General Manager Jim Beck said the Agency has run water down the river when possible. But the drought, state water reductions and added demands for treated water have made that impossible.
The city disputes Beck’s arguments, saying the Agency has had extra water even during the drought that hasn’t gone in the river or has only run east of Manor Street.
Either way, the outcome is a dry river.
Water flows toward money
Meanwhile, the rate of groundwater depletion isn’t explained merely by the recent drought and lack of water in the channel.
Groundwater levels have dropped 150 feet in some areas, said Tim Treloar, manager of California Water Services, Bakersfield’s main private water purveyor.
The drop is steadily moving east as Kern’s major water banks at the western end of the Kern River suck out more water.
In other, even worse, dry spells, farmers pumped more groundwater, but a lot of it made it right back into the aquifer when it was spread on local fields.
Some of Bakersfield area groundwater is going to westside farmers because of reductions in state water. That basin doesn’t connect to ours, so the water is lost.
But the big difference is that a lot of our groundwater is going over the Grapevine to Southern California cities.
“It shouldn’t be happening this fast if it were only going to local ag,” Treloar said.
Several city and Cal Water wells have already had to be shut down as water quality has worsened because of declining supplies.
Eric Averett, General Manager of the Rosedale Rio-Bravo Water Storage District, said his district, which relies solely on groundwater and is right next to two major water banks, is being hit hard.
Some Rosedale landowners have had wells go dry, Averett said.
Showdown looming
Members of the Kern Fan Monitoring Committee, made up of the water bank representatives, have promised to study the problem.
Agency General Manager Beck said it would be a year or two before data is available from the study. That could be too late for some areas.
The Agency operates the Pioneer Project and is a partner in the Kern Water Bank.
A report done by Rosedale Rio-Bravo a few years ago showed, among other things, that the Kern Water Bank was pumping out more water than it needed and that it hadn’t put as much water into the bank as it had claimed.
Jonathan Parker, manager of the Kern Water Bank Authority, disputed those findings. Beck said he hadn’t seen the report.
The argument could be headed to a courtroom sometime soon.
All of which makes the 50,000 acre feet of forfeited water the city wants to run down the river to replenish our groundwater “huge, really huge,” Treloar said.
Back in the ’70s, Cal Water joined the city in its lawsuits against Tenneco West.
Just like a lot of things on the river, not much has changed over the years.
“We’re joined at the hip with the city on this issue,” Treloar said. We’re all in.”
Why a river bed, not a river, runs through Bakersfield
http://www.bakersfield.com/News-sections/take-our-river-back/2010/05/06/lois-henry-where-does-the-river-go.html
If you’re like most people in Bakersfield getting to and from work, ferrying kids, doing your shopping, you’ve probably gotten to the point you no longer even notice that big, bone-dry ditch running through town. You likely cross several times a day. And it never occurs to you that weed-pocked gully is a river. In fact, if you were born in Bakersfield in the mid-1980s and lived your whole life here, you can count on one hand how many times you’ve seen the once mighty Kern River run through town — and I mean really run, not just a reluctant a trickle here and there.
We live in a desert and we’ve suffered droughts. But that’s not why the Kern’s water no longer runs its natural course.
Practically since the first white man laid eyes on that river, it’s been under siege. The fights for its water are the stuff of legends, as are the men who struggled to control it.
The Kern’s waters created empires out of sand and swamp. They’ve sustained vast agricultural operations and populations never dreamed of when the first canals were scratched from its banks.
Those few who still control the river’s flow know it has even more fortunes to yield as California is ever determined to outgrow its water resources.
So the tug of war continues.
Yet we residents of Bakersfield, a city built in this very spot because of the existence of that river, have placidly accepted a dry riverbed as the cost of local ag, local jobs and a certain water supply for the city.
We’ve been told the Kern can’t sustain us and still be a river, that one is the price of the other.
These stories examine that premise.
River water is the backbone of local ag. It truly has spawned an agricultural miracle. Thousands of acres of arid land now produce food and fiber shipped around the world.
The two districts that started the fight resulting in loose water farm more than 155,000 acres alone. And that doesn’t count the other districts with river rights or those that buy river water or even others that use it through exchange agreements.
But the river’s flow is also being shunted hundreds of miles away in elaborate deals to sprout houses far beyond the San Joaquin Valley enriching a few individuals and districts.
And even while local taxpayers continue to foot the bill in a decades-old deal that brought state water here for homes and was supposed to also give us a small bit of river most years, that water has vanished as well, either tucked into underground banks or exchanged away.
We’re told over and over that it’s all done in the community’s best interests.
That could be a page out of the playbooks of the two men most responsible for how the Kern is controlled even now, James Ben Ali Haggin and Henry Miller.
When the two immensely wealthy San Francisco land speculators fought for the river more than a century ago, they both played the populist card, accusing the other of wanting the river only to exploit it for personal benefit.
Each claimed he wanted to save the river from the other carpet-bagging robber barron. Not for public use, of course. Not even for use by most local farmers. But still, somehow their cause was portrayed as a noble effort for the greater community benefit.
Dueling newspapers took up sides. Haggin even wrote a column defending his actions.
“My object has not been, nor do I wish to monopolize large bodies of land, but I desire to make valuable and available that which I have, by extending irrigating ditches over my lands … to divide them up and sell them out in small tracts with the water-rights necessary for irrigation,” he wrote in 1880.
Never mind that Haggin already did monopolize large bodies of land having used a variety of nefarious schemes. And that while he often talked about selling out to small farmers, he never did.
One newspaper, the Kern County Gazette, saw the battle for what it was and in 1880 tried to sound the alarm.
“The people of the county are not willing to see any partnership of rich men in the command of the water of the country. They might as well take the air, for it would be impossible for any settler to breathe for a year in this valley with the water of the river out of his reach.”
But people of that time had no means to join the fight.
Miller had thousands of acres along the river. Haggin’s land was further away and needed canals to siphon the water.
When the legal dust settled, Miller and his riparian rights were essentially the victor. But, in a decision that set the course for California water law to this day, the court also acknowledged that Haggin’s appropriative rights had weight as well.
Though Miller won the nearly decade-long battle, the cantankerous old German immigrant turned right around and made a deal with Haggin: If Haggin would build him a reservoir (Buena Vista Lake), Miller would give him two-thirds of the river.
Done.
The so-called “Miller-Haggin agreement” securely locked the water away, dividing it among a small circle of owners. That rights structure has remained in place to this day.
Over the 130 years since Miller and Haggin went to war, several more agreements and decrees have come along. Today’s river users would have us think those are all implacably cemented in place with no room for upstarts.
But times have changed.
In 1994, North Kern Water Storage District and Kern Delta Water District, both offspring of Haggin’s Kern County Land Company, went to battle over 50,000 acre feet of Kern River water whose ownership was in question.
In 2007 that skirmish ended in the hands of the State Water Resources Control board. The board will now decide where that 50,000 acre feet ends up. That has given the public the chance to make a case for the water — and the city has just as much weight as the ag districts.
What once was a murmur from Bakersfield residents — revive the river — has grown to a roar.
The door to the river was cracked open by that lawsuit. Now the residents are pushing to swing it wide, telling the board loudly that we’ve waited on the sidelines long enough.
We want our river back.
Who owns the Kern River?
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.