California Water Views

On April 2, 2025, the Court of Appeal for California’s Fifth Appellate District issued its decision in Bring Back the Kern v. City of Bakersfield, 2025 S.O.S. 909. That case held that courts must apply the reasonableness requirement for water use that is found in article X, section 2 of the California Constitution “whenever adjudicating a use of water.”

Background  

This case is focused on the Kern River, which has a complex set of agreements governing use of water. It was brought by non-governmental organizations (NGOs) against the City of Bakersfield. Water agencies that could be impacted by any court order were joined as “necessary and indispensable parties.”

The complaint alleged that Bakersfield’s operation of some of the weirs in the river violated the law, including Fish and Game Code § 5937. That provision requires dam owners to allow sufficient water to pass through/over/etc. the dam “to keep in good condition any fish that may be planted or exist below the dam.”

Trial Court Decision

On November 9, 2023, the trial court granted a preliminary injunction against Bakersfield requiring it to operate the weirs in a manner to keep the downstream fish in good condition pursuant to Fish and Game Code § 5937. It did not set a flow rate to meet that objective but instead left it to plaintiffs and defendants to negotiate. It did not consider the reasonableness requirement found in article X, section 2 of the California Constitution, holding that section § 5937 was the operative law for the analysis.

On November 14, 2023, the trial court also approved a stipulation between Bakersfield and the NGOs. The water agencies did not agree to the stipulation.

Appellate Court Decision

Constitutional Reasonableness Requirement

The appellate court reasserted that the reasonableness requirement applied to all usage of water, including public trust uses. It also reaffirmed that the requirement is self-executing, which meant that not only was it a limitation on government power, but it is “directly enforced by courts in individual cases like a statute.” As a result, “a court must always consider reasonableness whenever it would direct or adjudicate a particular use of water, even when applying statutes that do not expressly incorporate a reasonableness determination.” It also clarified that “no particular use of water is per se reasonable in all circumstances, and therefore reasonableness must always be evaluated before a court orders any particular water use.” (Italics in original.)

The Court then clarified that any statutes operate alongside the constitutional reasonableness requirement. In this situation, § 5937 and the constitutional requirement must be reconciled: “the in-stream use of water to keep fish in good condition is required to the extent that use is reasonable.”

The Court ultimately held that since the trial court did not give “direct effect to the reasonableness provisions of section 2,” its injunction was invalid and must be reversed.

Guidance in Preliminary Injunction

The Court then held that the trial court further erred in its injunction because “the injunction did not say how much water Bakersfield must let flow past the weirs in order to keep downstream fish in good condition.” This analysis is necessary based in part on the above holding that “no particular use of water is per se reasonable in all circumstances.” As a result, the Court held that the trial court should “immediately set an objective standard for compliance upon a proper showing by the moving parties.”

Water Agencies’ Due Process Rights

The Court also held that the trial court violated the water agencies’ due process rights by approving the stipulation that was only approved by Bakersfield and the NGOs. That is because the November 14, 2023 order “expressly subjugates their diversions of Kern River waters to the ‘municipal needs and demands’ of Bakersfield.” Since the water agencies’ rights were impacted, it was improper to approve a stipulation to which they did not agree.

Impacts

While this case reaffirms existing law, it emphasizes that the reasonableness requirement and other laws impacting water usage must be reconciled. As the opinion notes, this is a factual analysis specific to each case. How this plays out will yet to be seen, but it provides important guideposts for water use disputes going forward.