Background & Key Dates

The Kern Water Bank was developed in response to wide fluctuations in California water supply. It is a highly effective conjunctive use program designed to enhance groundwater resources, to supplement inconsistent surface water supplies and provide a more stable, reliable and sustainable source of water particularly in dry years.  The Kern Water Bank generally accomplishes this by storing in the groundwater aquifer waters that become available for storage in wet years, including flood water flows that might otherwise not be conserved.  Those banked water supplies are later recovered for beneficial uses, typically in dry and critically dry years including drought, when surface supplies are diminished and pumping native groundwater is unavailable or undesirable.

For decades prior to the Kern Water Bank’s development by the Kern Water Bank Authority (KWBA), most of the 20,000 acres was used for farming. In 1988, the property was acquired by the California Department of Water Resources (DWR) on behalf of the State Water Project (SWP) contractors, which planned to develop a functioning water bank on the property known as the Kern Fan Element of the Kern Water Bank (KFE).  The State Water Project contractors paid all the costs of DWR’s efforts to develop a water bank on the KFE property.  Despite spending tens of millions of dollars and years of studies, testing and other efforts, DWR encountered many legal, institutional and environmental impediments to the implementation of a water bank on the property. DWR ultimately concluded that development of water bank on the KFE property by DWR as part of the SWP was not feasible and halted all work on the KFE project.

Prompted by several dry water years and disputes by and among SWP Contractors relating to the allocation SWP water supply shortages, mediated negotiations between the SWP Contractors and DWR in 1994 led to the Monterey Agreement. The Monterey Agreement was a Statement of Principles proposed to avoid litigation and settle a number of longstanding differences between certain of the SWP Contractors and DWR relating SWP water allocations and the operation of the SWP.  One of those principles was providing for the transfer of the KFE property to local water agencies who believed in the water bank concept and were willing to take the financial and environmental permitting risks to develop the property into a functioning water banking facility, which would become known as the Kern Water Bank project.  As provided in the Monterey Agreement, SWP Contractors were to obtain determinations from their respective Boards of Directors as to whether the Statement of Principles was acceptable, and, if ratified, their SWP contracts were to be amended as appropriate to conform to the Statement of Principles.   The SWP amendment vetted and approved through public processes by SWP Contractors’ Boards of Directors to implement the Statement of Principles is known as the “Monterey Amendment.” 

All of the SWP agricultural contractors, as well as the fifteen member units of the Kern County Water Agency, were offered the opportunity to participate in the development of a water banking project on the KFE property, which became known as the “Kern Water Bank,” but only five of these decided to do so. Those agencies that decided to participate, in addition to a mutual water company, all became member entities of a separate public entity created pursuant to the California Joint Exercise of Powers Act called the “Kern Water Bank Authority” – and are located in Kern and Kings Counties within the San Joaquin Valley.

The participants of the KWBA relinquished and retired 45,000 acre-feet of SWP entitlement (now known as “Table A amount”) to DWR in exchange for the KFE property.  This retired Table A amount presently would be worth at least $5,500/acre-foot, or more than $250 million.  In addition, as part of the KFE transfer, the SWP Contractors funded minor remediation work on the site to address contamination associated with past oil and agricultural activities, and DWR transferred all future liabilities to the KWBA in exchange for $3 million.   Since the transfer, the Kern Water Bank Authority has conducted necessary environmental review, including CEQA, obtained the required permits, performed remediation, and invested about $50 million in infrastructure and improvements, including wells, canals, pump stations, and pipelines.  In addition, KWBA members have recharged more than 2.5 million acre-feet of water in wet years and recovered 1.5 million acre-feet of water in dry years when available surface supplies were insufficient.

The water in storage and the costs to recharge and extract it are borne exclusively by the members of the KWBA.  Major infrastructure projects were principally funded through commercial financing ($27 million), a Prop 204 loan ($5 million), and member assessments and capital calls ($12 million).  KWBA’s members are solely responsible for the repayment of the bond and loans used to fund the improvements.

The Kern Water Bank project serves two primary purposes: water banking and wildlife preservation, and is operated under a Habitat Conservation Plan / Natural Community Conservation Plan that provides for specific uses for the property through the year 2072.  These uses include Sensitive Habitat, which is set aside for endangered species, Compatible Habitat, which can be used for recharge, conveyance, and recovery of water, the Conservation Bank, which provides mitigation for other properties, and a Farming Sector.  The Farming Sector has not been farmed, but rather used in the same manner as compatible habitat.  The original HCP/NCCP does provide for the commercial development of 490 acres, but to help settle litigation (PCL v. DWR described below) pending against DWR and certain SWP Contractors since 1995 KWBA committed to not develop this acreage as part of a Settlement Agreement executed effective May 5, 2003.

Key Dates in the KFE Property and Kern Water Bank history

Transfer of the KFE Property and KWBA’s Development and Construction of the Kern Water Bank

•December 1994 – Representatives of State Water Contractors and Department of Water Resources execute the Monterey Agreement – Statement of Principles, which included a principle for the transfer of the KFE property from the Department of Water Resources to the Kern County Water Agency in exchange for retirement of 45,000 acre-feet of State Water Project entitlement or Table A amount.

•March 1995 – Statement of Principles executed by and between the Kern County Water Agency, Dudley Ridge Water District, Semitropic Water Storage District, Wheeler Ridge-Maricopa Water Storage District and Westside Mutual Water Company for the Development, Operation and Maintenance of the Kern Fan Element of the Kern Water Bank.   •October 1995 –Kern Water Bank Authority is formally established. 

•October 1995 – Central Coast Water Agency (CCWA) as lead agency and DWR as responsible agency certify a programmatic EIR for the Monterey Agreement.

•December 1995 – Monterey Amendment to SWP contracts and agreements providing for transfer of KFE property to the Kern County Water Agency (KCWA) and the Kern Water Bank Authority in exchange for relinquishment and retirement of 45,000 acre-feet of SWP Table A amount. 
•August 1996 – Title to KFE property is transferred to the Kern Water Bank Authority, and KWBA members relinquish rights to 45,000 acre-feet of SWP Table A amount which contractual water rights are permanently retired by DWR.

•June 1997 – Kern Water Bank Authority posts CEQA Notice of Determination for Kern Water Bank project, which includes a Habitat Conservation Plan developed in accordance with the requirements of federal Endangered Species Act and a Natural Community Conservation Plan developed in accordance of the California Endangered Species Act and Fully Protected Species Act.  

•October 1997 – Signing ceremony for completion of the Habitat Conservation Plan (HCP)/ Natural Community Conservation Planning (NCCP) for the Kern Water Bank project. The HCP/NCCP ensures that the property will fulfill the dual roles of both water and wildlife conservation.  

•1998 – Kern Water Bank project is recognized by the Association of California Water Agencies with the Clair A. Hill Award for excellence in water management in California.

•August 1999 – Construction started on major facilities, including a 6-mile long canal, 72,000 feet of pipeline, and 40 new or rehabilitated wells. 

•January 2000 – Then U.S. Secretary of the Interior Bruce Babbitt visits the Kern Water Bank, hailing it as “the most effective groundwater storage program in the United States, probably the whole world.”

•February 2004 - Construction started on the River Area Project, including eight new wells, pipelines for these wells plus seven other wells, a large diameter conveyance pipeline to route water for both recharge and recovery, and a lift station.

•Through October 2017 - the Kern Water Bank has recharged 2.6 million acre-feet of water and recovered over 1.5 million acre-feet of water leaving a current balance of about 1 million acre-feet in storage.

Litigation of Monterey Amendment and Kern Fan Element Property Transfer Agreement

•December 1995 – Planning and Conservation League and other petitioners (PCL plaintiffs) commenced a lawsuit against DWR and others in Sacramento County Superior Court, challenging the 1995 EIR prepared by CCWA for the Monterey Agreement (PCL v. DWR).

•February 1996 – PCL’s first amended complaint adds 5th cause of action for invalidation of Monterey Amendment and DWR’s agreement to transfer the KFE property to KCWA (Validation Cause of Action).

•May-August 1996 – Judge Bond’s judgment against PCL; PCL appeal.

•September 2000 – Court of Appeal for the Third Appellate District opinion in the PCL v. DWR (83 Cal.App.4th 892), concludes CCWA’s Monterey Agreement EIR violated CEQA, DWR as lead agency must prepare a new EIR, and dismissal of the Validation Cause of Action was error.

•October 2000 – Court of Appeal denial of PCL plaintiffs’ petition to set aside approval of Monterey Amendments and agreement transferring the KFE property.

•February 2003 - Joint Statement on Monterey Amendments Litigation summarizes principles of settlement of PCL v. DWR, including principle that the “Kern Water Bank will remain in local ownership and will operate as it has, but will be subject to addition restrictions on use.”

•May 5, 2003 – PCL plaintiffs, DWR, specified SWP Contractors, and KWBA execute Settlement Agreement in PCL v. DWR, requiring (among other things) DWR’s preparation of an EIR for the Monterey Amendment plus certain provisions of the Settlement Agreement (Monterey Plus Project), “KWBA shall retain title to the KWB Lands” with operation and administration subject to additional restrictions, and PCL plaintiffs’ dismissal of the Validation Cause of Action upon timely occurrence of certain conditions. 

•May-June 2003 – PCL v. DWR trial court order approving Settlement Agreement, and peremptory writ of mandate (“2003 Writ”) requiring set aside of CCWA Monterey Agreement EIR certifications and preparation of new EIR by DWR pursuant to the Settlement Agreement and CEQA.

•November 2003 – PCL v. DWR Validation Cause of Action dismissed by Judge McMaster.

•2003-2010 – DWR drafts and finalizes new EIR required by the 2003 Writ pursuant to the Settlement Agreement’s EIR Committee process that involved SWP Contractor and PCL plaintiff representatives.

•February-May 2010 – DWR certification of Monterey Plus EIR (2010 EIR) and filing of return to satisfy the requirements of the 2003 Writ, including 2010 EIR and May 5, 2010 Notice of Determination.

•June 4, 2010 – PCL consent to entry of order discharging the 2003 Writ (discharged in August, 2010).

•June 4, 2010 – Central Delta Water Agency, Center for Biological Diversity, Carolee Krieger, California Water Impact Network (CWIN) and other petitioners (CDWA petitioners), new lawsuit consisting of a petition for writ of mandate, etc., in Sacramento County Superior Court against DWR, the SWP Contractors, KWBA and its members and others, including a CEQA cause of action alleging DWR’s 2010 EIR, and a new Validation Cause of Action challenging the validity of the 1995 Monterey Amendment and 1995 DWR agreement to transfer of the KFE property (CD1).   CD1 petitioner Carolee Krieger verified the petition as the executive director of CWIN.  Ms. Krieger was affiliated with Citizens Planning Association of Santa Barbara County – a plaintiff in the PCL v. DWR case and signatory to the 2003 Settlement Agreement that required dismissal (and precluded refiling of) the Validation Cause of Action in PCL v. DWR and agreed title to the KFE property shall remain with KWBA.

•June 4, 2010 – Rosedale Rio-Bravo Water Storage District and Buena Vista Water Storage District (Rosedale) petition for writ of mandate in Kern County Superior Court against DWR and KWBA and its members, that DWR’s 2010 EIR did not comply with CEQA with regard to its evaluation of the Kern Water Bank (transferred to Sac. County Superior Court).

•July 2, 2010 – CDWA petitioners’ second lawsuit in Kern County Superior Court against KCWA, KWBA and its members, and others challenging the validity of KCWA’s 1995 agreement to transfer the KFE property (CD2) (transferred to Sac. County Superior Court and stayed pending the outcome of the CD1).

• January 2013 –CD1 trial court statement of decision that the Validation Cause of Action and similar mandate cause of action are time-barred by affirmative defenses of statutes of limitation and laches.

• March 2014 –Rosedale ruling that DWR’s evaluation of the KWB did not comply with CEQA, and CD1 ruling against CDWA petitioners on all their CEQA arguments except with respect to the KWB as provided in the ruling in Rosedale

•October 2014 – Trial court joint remedy ruling in CD1 and Rosedale does not set aside approvals or enjoin KWB use and operation pending further CEQA review by DWR.

•November 2014 –Trial court findings and peremptory writ of mandate (2014 Writ) in CD1 and Rosedale requiring DWR’s revised EIR for the Monterey Plus Project evaluating the KWB.

•December 2014 / January 2015 – Upon entry of judgment in CD1, CDWA petitioners appeal various CEQA rulings and the dismissal of the Validation Cause of Action as time-barred.  In response, certain real parties file notices of cross appeal that CDWA petitioners’ CEQA challenge to the 2010 EIR is barred by res judicata for not challenging the same 2010 EIR in PCL v. DWR.   The appeals are pending.

•September 2016 –  As required by the 2014 Writ, DWR certified a Revised EIR (2016 REIR) and filed a notice of determination (NOD), and KWBA made a responsible agency determination and filed a NOD.

•October 2016 – Center for Food Safety and certain CDWA petitioners (CFS petitioners) new lawsuit consisting of a petition for writ of mandate against DWR, SWP Contractors, and KWBA and its members in Sacramento County Superior Court, challenging the 2016 REIR under CEQA (CFS).  CFS is considered an action related to CD1 and Rosedale.

•January 2017 -  CFS petitioners file motion to stay, arguing the trial court lacks jurisdiction to discharge or determine whether the 2016 REIR complies with the 2014 Writ until all appeals in CD1 are over.

•February 2017 – Trial court case management order sets briefing schedule and a joint hearing in CD1, Rosedale and CFS on August 18, 2017, to hear argument concerning any objections CD1 petitioners have to discharge of the 2014 Writ and all issues raised by CFS challenging the 2016 REIR.

•April 2017 – Trial court denies CFS petitioners’ stay motion.

•October 2017 – Trial court issues ruling denying CFS petitioners’ petition for writ of mandate, enters judgment against CFS petitioners, and issues orders discharging the 2014 Writ in CD1 and Rosedale.