Kern River basics, River series May 2010

Why a river bed, not a river, runs through Bakersfield

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Skateboarders scoot along the Kern River parkway next to the dry Kern River. Photo by Casey Christie
Skateboarders scoot along the Kern River parkway next to the dry Kern River. Photo by Casey Christie

By LOIS HENRY, Californian columnist, lhenry@bakersfield.com

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.

Kern River basics, River series May 2010

Who owns the Kern River?

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Water in the Kern River in 2010. Water runs in the river intermittently depending on agricultural needs. Photo by Alex Horvath
Water in the Kern River in 2010. Water runs in the river intermittently depending on agricultural needs. Photo by Casey Christie.

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.