www.bakersfield.com/news/columnist/henry/x534570007/LOIS-HENRY-Attempt-to-delay-Kern-River-process-denied

Lois Henry

The Bakersfield Californian

Thursday, Jul 29 2010 04:54 PM

Last Updated Thursday, Jul 29 2010 04:54 PM

Thank goodness I'm not the only one who sees through what the so-called North Kern group is up to on the Kern River -- delay, delay, delay.

The latest attempt was a motion to stay, or suspend, an historic order by the State Water Resources Control Board in February finding there is water available on the Kern River.
The North Kern group promptly appealed the order, was denied by the board and then sued to have the order rescinded. As part of that suit, the group filed the motion to suspend the order while the appeal goes forward.

Superior Court Judge Jose. R. Benavides quickly figured out that the motion was an unnecessary delaying tactic and denied it Thursday morning, saying it wouldn't be in the public's interest.

"I'm pleased the judge recognized the importance of the Kern River and the proceedings before the state board involving the river," said Colin Pearce, the attorney for the City of Bakersfield.

In other words, yay for our team! That includes all of you out there who would like to see -- in our lifetimes -- water in the river.

That's exactly what the city has been fighting against the North Kern group to get. The North Kern group is made up of North Kern Water Storage District, City of Shafter, Buena Vista Water Storage District, Kern County Water Agency and Kern Water Bank.

Had the North Kern group won Thursday, it would have set back, by as much as a year, the already lengthy state process of determining how much river water is up for grabs and who it should go to.

That's how long it could take for the North Kern group's lawsuit against the state board to work its way through the system. In fact, the suit won't come back to Benavides' courtroom until Sept. 22 at 1:30 p.m. And that will only be a hearing to set future hearing and filing dates and deal with other housekeeping items.

If the legal system seems slow on other matters, it's downright glacial on water.

Here's some background you might need to follow along.

There are only a few entities with ownership rights to the regular flow of the Kern River -- Kern Delta Water District, the City of Bakersfield and Buena Vista.

North Kern has contractual rights to use some water, but doesn't own it. And the Kern County Water Agency has rights to some high flow water that occurs only in heavy rainfall years.

In the 1990s, North Kern sued Kern Delta claiming it wasn't using all the water it had rights to. In California, water rights operate on a "use it or lose it" basis.

North Kern won the argument when a court ruled in 2007 that Kern Delta had forfeited up to 50,000 acre feet a year of Kern River water. But the court did not award that water to North Kern.

Instead, it dropped the matter in the lap of the State Water Resources Control Board, the only entity allowed to determine whether a river has water that is unappropriated -- not owned.

As soon as that happened, North Kern in conjunction with the City of Shafter, the City of Bakersfield, Buena Vista, Kern County Water Agency and the Kern Water Bank applied to the state board for that forfeited water.

In February, the board did find that, yes, there is unappropriated water on the Kern in the form of flood waters that occasionally make their way out to the California Aqueduct west of town. The board also stated it would settle the issue of the forfeited water as it processed the applications.

The North Kern group appealed and then sued, which brings us to Thursday's hearing.
Now the state board will move forward on applications for Kern River water as the North Kern group's lawsuit proceeds.

If Judge Benavides' comments Thursday are any indication of how he might rule on the North Kern group's lawsuit, though, it's shaping up as another losing proposition.

Benavides mentioned more than once that he considered the state board the "expert" when it comes to water matters and that they are the agency best equipped to deal with these issues.

If I were the North Kern group, I'd take a hint.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian.

Her column appears Wednesdays and Sundays. Comment at people.bakersfield.com/home/Blog/noholdsbarred, call her at 395-7373 or e-mail lhenry@bakersfield.com