An indication from wetter occasions warns folks to not dive from a bridge over the Kern River, which had been dried up by water diversion tasks and little rain, on Feb. 4, 2014, in Bakersfield.
There’s a water battle brewing on the Kern River. The state Water Assets Management Board’s dealing with of the battle might be telling for the way forward for California’s streams and rivers.
If the water board takes significantly its obligation to guard the general public curiosity, this battle may result in higher water administration statewide.
The Kern River begins on the slopes of Mount Whitney and (generally) flows by Bakersfield. It as soon as supported an unlimited ecosystem of wetlands and lakes, teeming with wildlife and providing an escape from the warmth of the San Joaquin Valley. As with a number of California rivers, each drop of water within the Kern River has been diverted for the reason that mid-to-late 1800s, destroying the wetlands and draining the river.
California legal guidelines are supposed to guard rivers from this destiny, and the California Supreme Courtroom has dominated that every one water allocations should take into account the general public belief doctrine, which protects the general public’s curiosity in wholesome rivers and streams. Nonetheless, Kern River water rights are so previous that they've by no means been assessed towards trendy environmental legal guidelines.
Beneath the state Supreme Courtroom precedent, the water board has each the ability and the obligation to regulate antiquated water rights to guard public belief pursuits, nevertheless it seldom does. Fortuitously, the water board now has a possibility to reassess these rights.
A 2007 California appellate court docket determination struck down a few of the oldest water rights on the Kern as a result of the right-holder failed to make use of the water. This uncommon ruling signifies that new rights to Kern River water could be out there for the primary time in additional than a century. Close by cities and space water districts pounced, submitting six functions for any unclaimed water. Public-interest organizations counsel the water ought to be used to revive parts of the Kern.
Earlier than the water board can allocate the water, it should decide whether or not the forfeiture really freed up any water. The water board’s Administrative Hearings Workplace is at present making an attempt to find out how a lot water is already claimed beneath current rights and whether or not there's any water left for the brand new candidates. Making this determination requires evaluating the historic Kern River water rights.
The water board ought to take this chance to contemplate whether or not the prevailing rights adequately defend the general public belief. If not, because the state Supreme Courtroom has indicated, these rights ought to be adjusted to adjust to trendy regulation. However the water board appears poised to disregard the general public belief on this part of the proceedings. As an alternative, it plans to defer consideration of public belief till after it decides whether or not current proper holders can absorb all of the out there water.
This method assumes the validity of the previous water rights and places the general public’s pursuits final, behind all the prevailing proper holders. If the general public solely will get the leftovers, there'll by no means be sufficient water for a wholesome setting. That falls wanting the Supreme Courtroom’s mandate to the water board — public belief protections lengthen to all waters, not simply no matter is left after everybody else takes their minimize.
Beneath California regulation, the water board should decide whether or not the historic water rights adequately defend public pursuits. Over the previous century and a half, California has turn into a pacesetter in environmental safety, however our management has lagged when public pursuits and water rights conflict.
This battle presents the water board a possibility to set an important precedent: that every time the board considers claims beneath current water rights, it can assess whether or not these rights are nonetheless legitimate in gentle of the board’s trendy duties to the general public.
Setting this precedent would put the water board on a path towards improved water administration throughout California by adjusting historic rights to mirror trendy priorities. The board has the authority and the duty to make the proper determination. We’ve come a great distance for the reason that 1800s, and it's excessive time for these previous water rights to catch up.
Karrigan Bork is an performing professor of regulation and an affiliate director of the Middle for Watershed Sciences at UC Davis. He wrote this piece for CalMatters.