In summary

The conflict over the Kern River offers an opportunity for improved water management by adjusting historic rights to reflect modern priorities.

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By Karrigan Bork, Special to CalMatters

Karrigan Bork is an acting professor of law and an associate director of the Center for Watershed Sciences at the University of California, Davis.

There’s a water fight brewing on the Kern River. The State Water Resources Control Board’s handling of the conflict will be telling for the future of California’s streams and rivers. 

If the water board takes seriously its duty to protect the public interest, this conflict could lead to better water management statewide.

The Kern River starts on the slopes of Mount Whitney and (sometimes) flows through Bakersfield. It once supported a vast ecosystem of wetlands and lakes, teeming with wildlife and offering an escape from the heat of the San Joaquin Valley. As with several California rivers, every drop of water in the Kern River has been diverted since the mid-to-late 1800s, destroying the wetlands and draining the river. 

California laws are supposed to protect rivers from this fate, and the California Supreme Court has ruled that all water allocations must consider the public trust doctrine, which protects the public’s interest in healthy rivers and streams. However, Kern River water rights are so old that they have never been assessed against modern environmental laws. 

Under the state Supreme Court precedent, the water board has both the power and the duty to adjust antiquated water rights to protect public trust interests, but it seldom does. Fortunately, the water board now has an opportunity to reassess these rights.

A 2007 California appellate court decision struck down some of the oldest water rights on the Kern because the right-holder failed to use the water. This unusual ruling means that new rights to Kern River water might be available for the first time in more than a century. Nearby cities and area water districts pounced, filing six applications for any unclaimed water. Public-interest organizations suggest the water should be used to restore portions of the Kern.

Before the water board can allocate the water, it must determine whether the forfeiture actually freed up any water. The water board’s Administrative Hearings Office is currently trying to determine how much water is already claimed under existing rights and whether there is any water left for the new applicants. Making this decision requires evaluating the historic Kern River water rights. 

The water board should take this opportunity to consider whether the existing rights adequately protect the public trust. If not, as the state Supreme Court has indicated, those rights should be adjusted to comply with modern law. But the water board seems poised to ignore the public trust in this phase of the proceedings. Instead, it plans to defer consideration of public trust until after it decides whether existing right holders can soak up all the available water. 

This approach assumes the validity of the old water rights and puts the public’s interests last, behind all the existing right holders. If the public only gets the leftovers, there will never be enough water for a healthy environment. That falls short of the Supreme Court’s mandate to the water board – public trust protections extend to all waters, not just whatever is left after everyone else takes their cut.

Under California law, the water board must determine whether the historic water rights adequately protect public interests. Over the past century and a half, California has become a leader in environmental protection, but our leadership has lagged when public interests and water rights clash. 

This conflict offers the water board an opportunity to set a vital precedent: that whenever the board considers claims under existing water rights, it will assess whether those rights are still valid in light of the board’s modern responsibilities to the public. 

Setting this precedent would put the water board on a path toward improved water management across California by adjusting historic rights to reflect modern priorities. The board has the authority and the responsibility to make the right decision. We’ve come a long way since the 1800s, and it is high time for these old water rights to catch up. 

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