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Letter from Loyd Wiens, Los Padres Streamkeepers to State Water Resources Control Board regarding Kern River: Calls de-watering criminal

Kathryn M. Gaffney, P.E.
State Water Resources Control Board
Division of Water Rights
1001 I St., 14th Floor
P.O. Box 2000
Sacramento, CA 95812-2000

Ms. Gaffney:

Pursuant to my earlier comments, shown below, has a Clean Water Act Section 401/404 Water Quality Certification been completed as related to the dewatering of the Kern River through Bakersfield? Has compensatory mitigation in the form of the creation of other wetlands, stream enhancement, restoration or set-asides been provided in the local area for any impacts created to this river and its habitats? If not, why not? If not completed or provided, these are clear violations of the Clean Water Act, CEQA and NEPA.

Has an analysis of the impact(s) caused by this dewatering to the water table and water resources in the Bakersfield area, and currently-existent public and private water sources and wells ever been conducted by SWRCB and State Water Rights, in cooperation with the State Dept. of Health Services, Calif. Fish & Game, the US Army Corps of Engineers, the Kern County Water Agency, Kern County Environmental Health and the US Fish & Wildlife Service?

President Clinton's Clean Water Action Plan is shown at http://www.epa.gov/history/topics/cwa/03.htm . This plan called for more than 100 major new actions to restore and protect water resources, including restoring and protecting Watersheds, and:

	A coordinated strategy to achieve a net increase of 100,000 wetland acres a year by 2005, including a 50 percent increase in wetlands restored and enhanced by the Corps of Engineers.
	Emphasis on wetland restoration as a remedy for Clean Water Act violations.
	An interagency system to more accurately track wetland loss, restoration and creation.

What has SWRCB done to implement this Action Plan in relation to the Kern River watershed and wetland restoration for this Clean Water Act violation? Has a wetland loss and/or restoration tracking system been established?

Info on the Clean Water Act, Water Pollution Prevention and Control can be seen at http://gsa.gov/pbs/pt/call-in/factshet/1298a/1298afact.htm . The entire text of the law may be found at http://www4.law.cornell.edu/uscode/unframed/33/ch26.html.

Additionally, Fish & Game Code section 5937 was the primary violation ruled on by the courts in California Trout, Inc. v. SWRCB at 207 Cal.App.3d 584 (1989) and California Trout v. Superior Court at 218 Cal.App.3d 187 (1990). It is clearly apparent that the rulings in these cases are applicable to the Kern River situation, and without a doubt establish certain legal precedents that are being violated by the dewatering of the Kern.

Previous discussions regarding those cases confirmed that the current Kern River situation and others in the Central Valley are virtually identical. As such, your agency and others are in violation of the rulings issued in these cases that established the expected level of behavior of public water agencies.

In both cases, F&G Code section 5937 was the cornerstone of the plaintiff's arguments, brought to restore previously de-watered streams in Mono County that had historically been tributaries to Mono Lake, including Rush Creek . If there have been violations of F&G Code section 5937 in the management of the Kern River and its streambed, species and habitats, and in its dewatering, the use of the word "shall" in that code section, when combined with the portion of the F&G Code (I believe it's F&G Code section 12000) which makes the violation of any statutory obligation a criminal act, turns the violation into a criminal misdemeanor. As criminal conduct, it would be a continuing violation without an applicable statute of limitations to bar prosecution or an act excusable by waiver or laches. The court found a violation of F&G Code 5937 in the Mono Lake cases 50 years after the act of de-watering occurred and the water agency (in that case LA Department of Water & Power) was required to restore those streams to the condition they had been in prior to the criminal act of de-watering. You are mandated by these correlative rulings to take similar corrective flow restoration action on the Kern River. Please bring this situation into compliance.

Thank you. Lloyd Wiens

cc: Edmund G. Brown, Jr.
Calif. Attorney General