Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Environmental groups score win in Kern River dispute

The city of Bakersfield must keep river flows at a level sufficient to support fish downstream of six weirs, a judge ruled Monday.

BAKERSFIELD, Calif. (CN) — In a win for environmental groups, a California state court judge on Monday temporarily blocked Bakersfield from reducing water flow on the Kern River.

Kern County Superior Court Judge Greg Pulskamp granted the plaintiff environmental groups a preliminary injunction, finding that Bakersfield must keep water flows at a sufficient level to support fish downstream of six weirs. Additionally, the judge said in his order that the city and plaintiffs must have good faith consultations to determine what flow rates to comply will comply with ruling.

Groups including Bring Back the Kern, Water Audit California and the Center for Biological Diversity sued the city last year, arguing that water diversions damaged and threatened the river's ecosystem and reduced wildlife habitats.

“This is wonderful news not only for the fish who thrive on a healthy, flowing Kern River but for the Bakersfield community wanting to see this public resource protected,” said John Buse, senior counsel at the Center for Biological Diversity, in a statement. “The court has recognized that we can do the right thing and keep water flowing in the river without affecting the city’s water supply.”

The Kern River’s headwaters are close to Mount Whitney’s base. It flows to the San Joaquin Valley floor and through Bakersfield.

Attorneys on both sides argued before Pulskamp on Oct. 13. Attorney Adam Keats, representing the environmental groups, told the judge he wasn’t asking for all diversion to stop. He said the city could still get enough water each year for municipal purposes.

Most of the water diverted is for agriculture, Keats said.

Arguing for the city, attorney Colin Pearce said the groups’ request was “vague” and “uncertain.” He also said there are no dams on the river. Instead, there are weirs.

The judge discarded the latter argument in his Monday ruling.

“In this case, the weirs qualify as ‘dams’ because they are ‘artificial obstructions’ that may be used to control the flow of water in the Kern River,” Pulskamp wrote.

The judge also was unpersuaded by the city’s argument that it has no ownership over some of the weirs. Bakersfield operates them, Pulskamp wrote, making it the owner.

The Fish and Game code has minimum flow requirements, and that law requires dam owners to have enough water pass through dams to keep fish in “good condition,” the judge ruled.

According to Pulskamp, case law shows that the Fish and Game code was created after lawmakers weighed the various competing uses for water. That led him to decide that the environmental groups have a “very high likelihood of succeeding on the merits” — an essential component for the injunction.

The city argued that an injunction would hinder it from providing safe and reliable drinking water to over 400,000 residents in the area. However, the judge wrote that the Kern River appears to have always had enough water to meet the city’s needs. In an “average year,” it has over five times the amount of water required by the city.

“Plaintiffs’ contend that a failure to issue the preliminary injunction will almost certainly result in a completely dry, dead river channel which has been witnessed by the City of Bakersfield’s residents and visitors the majority of time during the past few decades,” the judge wrote.

“Therefore, it appears that significant harm would result to the general population and the environment if the injunction is not issued," he added.

Pulskamp wrote that he has no power to override the Legislature and reevaluate the competing interests over the water. Instead, he must uphold the law, even if “compliance is burdensome.”

Categories / Environment, Government, Law

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.