The Kern River #3 Hydropower Project (KR3) diverts up to 600 cfs from the Fairview Dam to the KR3 Powerhouse affecting flows on a 17 mile segment of the Upper Kern just upstream of Kernville. Although this section is designated as Wild and Scenic River, the enabling legislation [16 U.S. Code § 1274(64)(C)] specifically authorized the operation of Fairview Dam stating, “nothing in this chapter shall affect the continued operation and maintenance of the existing diversion project, owned by Southern California Edison.” American Whitewater participated in the relicensing of this hydropower project to advocate for the interests of boaters in providing adequate flows for whitewater recreation.

The Forest Service had the authority to require flows for whitewater recreation under the authority they are granted under Section 4(e) of the Federal Power Act. American Whitewater, Friends of the River, and other stakeholders appealed the original conditions issued by the Forest Service on May 17, 1996. The Federal Energy Regulatory Commission issued a license for the hydropower project on December 24, 1996 without resolving the whitewater flow conditions due to the ongoing litigation over what the Forest Service would require. The whitewater release schedule was to be amended to the license once the litigation was resolved. Revised conditions were issued on September 14, 1998 and these were once again appealed by Southern California Edison, American Whitewater, Kern River Outfitters, Kernville Chamber of Commerce, and Kern River Valley Community Consensus Council.

On December 14, 1998, the Forest Service Appeal Deciding Officer remanded the decision to the Regional Forester. The appeals were based in part on the fact that the Forest Service’s recommendations did not comply with the local Forest Plan and failed to satisfactorily mitigate the impacts to whitewater resources resulting from hydropower project construction and operation.

Southern California Edison, American Whitewater and Friends of the River elected to enter into settlement negotiations to craft a mutually agreeable whitewater flow schedule rather than let the court prescribe one. That Settlement was reached and submitted to FERC on December 24, 2002. The Forest Service submitted their revised conditions on May 12, 2004.

The current hydropower license is set to expire on November 30, 2026 meaning that the dialogue on relicensing will likely begin in 2020.

The Kern River between Isabella Dam and Borel powerhouse contains eight miles of Class II-III whitewater. With the ability to divert 600 cfs from the river, the Borel Hydroelectric Project’s combination of diversion structure, canal and powerhouse significantly alters the instream flow in the eight-mile natural river channel below Isabella Reservoir. From the time this project came up for relicensing in 2000, American Whitewater spent over 6 years negotiating the new license. Along with our partners, who include the Sierra Club, Friends of the River, the State Water Resources Control Board, and others, we fought to get whitewater releases on this reach of the Kern River.

At the request of American Whitewater, Southern California Edison (SCE) initiated whitewater studies in 2003. Kris Schmidt, a volunteer with American Whitewater and representative of the Sierra Club River Touring Chapter, analyzed monthly hydrologic data for the Borel reach on the Kern River based upon monthly data from the Army Corp of Engineers. His analysis was critical to American Whitewater's work on this project.

When we reached agreement with SCE and FERC issued the new license that included whitewater releases on May 17, 2006, we felt that our hard work had paid off and that the boaters of the Kernville area and more broadly Southern California would have great boating for years to come on this section of river. Unfortunately, that is not the end of the story. After the license was issued, the Kern Watermaster representing the Kern Water Users protested to FERC about the whitewater releases. They claimed that these releases would affect their ability to divert water over fifty miles down stream. Their claim was that releasing water through dam to the river rather than the powerhouse would change the timing of the water delivery downstream. No evidence was presented other than the claim of the Watermaster that their diversion would be impacted. They also did not present any alternative solutions. FERC responded by directing SCE and the Watermaster to find a way to make the whitewater releases and “… to minimize the disruption of flow to downstream water users and water rights holders.” Normally this would have been the end of the issue, we would have all moved forward and found a way for the releases to happen and minimize any flow disruptions downstream. However, because the Watermaster actually controls the flow through the powerhouse and the dam, SCE could not comply with FERC’s directive. This situation has resulted in the Watermaster effectively telling FERC that as far as whitewater releases go, “I am not going to do it and you can’t make me”.

Rather than resolve this jurisdictional question SCE attempted to find a suitable substitute for the whitewater releases. Their initial suggestion was to do some improvement to the Democrat takeout, downstream of the project. For American Whitewater and the Sierra Club this trading river releases for some paving and bathrooms was totally unacceptable. At the suggestion of some folks from Kernville, SCE offered the possibility of doing improvements to the whitewater park in Kernville. While not perfect, this option was more palatable because it at least could provide some improvements to whitewater recreation. Unfortunately, SCE’s offer did not include any money to actually construct the improvements to the whitewater park, only a limited amount of money for design and an agreement to do the environmental permitting when, and if, money was raised to pay for the improvements. From American Whitewater’s perspective it was not acceptable to trade the recreation releases that we had rights to in the new license, for possible improvements to the whitewater-park, with no guarantee that they would actually happen.

The deal breaker happened when SCE informed us that in order for them to agree to do the permitting on the whitewater-park at some point in the future, we would need to write a letter to FERC supporting the elimination of the whitewater releases and agreeing to improve the Democrat takeout instead. They were also very explicit that we could not mention the improvements to the Whitewater Park in our letter. This would be a 180 degree turn from what we had spent 6 years advocating. FERC would wonder why we were now changing our position on the importance of whitewater recreation on this project. Looking back at the record they would see that first, we insisted that a whitewater flow study be done on this project. In addition, they would see that after completing the flow study American Whitewater and our members filed numerous comments insisting that whitewater releases be a part of the license. FERC’s review would then reveal that they had listened to our request and included releases in the license and then supported us when the Watermaster filed a protest. The logical question would be after all of this effort why would we be willing to then say that it is ok to take the releases out of the license in order to do some access improvements. Again, from FERC’s perspective they would have to wonder why we bothered to waste their time and SCE’s money during the relicensing process. We feel that this would seriously damage AW’s credibility with FERC which would have implications for our ability to secure agreements to improve flows on rivers across the country.

Protecting AW’s credibility is important, but it is by no means the most important reason why we could not sign onto the deal proposed by SCE. The primary issue involves the Watermaster’s challenge to FERC’s authority. The Watermaster’s refusal to comply with the FERC license has created a huge jurisdictional issue. The Watermaster has claimed that the whitewater releases will interfere with their water rights. No documentation has been presented showing that it is impossible to do the releases and meet the diversion needs down stream. In fact, it is not only the whitewater releases that are in question. Under the original license, SCE argued to FERC that because the Watermaster actually controls the flows through the powerhouse and dam, they should not have minimum flows as a requirement in the FERC license. This potential precedent has the possibility to impact every FERC project that we work on that have downstream water rights, which is just about every project. It is because of the possible precedent setting nature of this project, that Trout Unlimited and the California Sportfishing Protection Alliance signed on to our filing. Having angling organizations supporting whitewater releases is unusual to say the least. However, their support underscores the importance of what is at stake.

American Whitewater is willing to have discussions with all of the stakeholders to reach an acceptable resolution on this project. This resolution would have to include actually improving whitewater recreation, either going forward with the whitewater release schedule or constructing the improvements to the Whitewater Park in Kernville. We believe that SCE and the Kern Water Users have a public responsibility to all of the beneficial uses of the river. American Whitewater is committed to seeing that they live up to that responsibility.

Meanwhile, the Army Corps of Engineers announced in July 2015 that safety changes at Isabella Dam could include shutting down the Borel Powerhouse altogether. Isabella was found to be one of the highest risk dams in the nation and under current operations water is not being diverted through the powerhouse (which is offline) but is flowing down the river. Ironically what the Watermaster told us was not possible is no happening and boaters are finding plenty of opportunities to enjoy the reach we worked to restore. The Army Corps of Engineers does a poor job of providing public information on when water will be released from Isabella and how much. Our current goal is to advocate for improved access to information on project operations so the paddling community including local business owners can better plan their trips.

The new hydropower license issued on May 17, 2006, included the following conditions to provide whitewater boating opportunities in the reach impacted by the hydropower project:

Condition No. 26 - Boating Flows

The licensee shall augment flows in the diverted reach of the Lower Kern River between the Lake Isabella main dam and the Borel Powerhouse to provide opportunity for whitewater boating.

Prior to release of augmented flows the following set of conditions must be met:
* Augmentation does not need to occur if flows within the Borel Canal cannot be maintained at 150 cfs during the release.
* Augmentation does not need to occur if the appropriate California authority has declared a Stage II or III power emergency.
* Except for specified holidays, augmentation does not need to occur on any Monday thru Thursday unless commercial outfitters have scheduled the first day of a two day trip and have notified the licensee by the previous Friday.

Target flows will be provided from 9:30 am until 12:30 pm. Flows will be measured at the agreed upon location developed from Condition No. 17a, Instream Flow Measurement. The licensee will develop a Ramping Study for Forest Service approval to determine appropriate up and down ramping rates to minimize recreational hazards and stranding of aquatic dependent species.

From the Friday prior to Memorial Day through Labor Day on Fridays, Saturdays, and Sundays plus July 4, Labor Day, and Memorial Day:
* If releases from Lake Isabella are at least 400 cfs, augment the release so that flows in the diverted reach are at least 800 cfs.

From July 1 through Labor Day on all days not included above:
* If releases from Lake Isabella are less than 500 cfs, augment the release so that flows in the diverted reach are at least 400 cfs, and when possible, 500 cfs.

If augmented flows are to be released on a Monday thru Thursday due to a request by a commercial outfitter, the licensee shall provide notification of the augmented flow schedule to the general public through an agreed upon method (e.g. flow phone or website) no later than 7 pm on the previous Friday.

The Forest Service acknowledges that SCE has limited authority over releases from Isabella Reservoir. SCE cannot independently augment flows in the diverted reach without the cooperation of the Army Corps of Engineers and the downstream water rights holders. The Forest Service expects SCE to enter into an Agreement with the Corps and water rights holders to obtain the needed releases. The Forest Service also reserves the right to revise this condition if flow release agreements reached between SCE, COE, and water rights holders require changes to the schedule described in this condition.

On November 24, 1987 the North Fork from the Tulare-Kern County line to its headwaters in Sequoia National Park and the South Fork from its headwaters in the Inyo National Forest to the southern boundary of the Domelands Wilderness in the Sequoia National Forest, a total of 151 river miles, were designated as Wild and Scenic Rivers. American Whitewater advocates for the responsible management of this section to protect and enhance river values including whitewater recreation.

16 U.S. Code § 1274(64)

(A)North Fork Kern River, California.— The segment of the main stem from the Tulare-Kern County line to its headwaters in Sequoia National Park, as generally depicted on a map entitled “Kern River Wild and Scenic River—Proposed” and dated June, 1987; to be administered by the Secretary of Agriculture; except that portion of the river within the boundaries of the Sequoia National Park shall be administered by the Secretary of the Interior. With respect to the portion of the river segment designated by this paragraph which is within the boundaries of Sequoia National Park, the requirements of subsection (b) of this section shall be fulfilled by the Secretary of the Interior through appropriate revisions to the general management plan for the park, and the boundaries, classification, and development plans for such portion need not be published in the Federal Register. Such revision to the general management plan for the park shall assure that no developments or use of park lands shall be undertaken that is inconsistent with the designation of such river segment.

(B)South Fork Kern River, California.— The segment from its headwaters in the Inyo National Forest to the southern boundary of the Domelands Wilderness in the Sequoia National Forest, as generally depicted on a map entitled “Kern River Wild and Scenic River—Proposed” and dated June 1987; to be administered by the Secretary of Agriculture.

(C) Nothing in this chapter shall affect the continued operation and maintenance of the existing diversion project, owned by Southern California Edison on the North Fork of the Kern River, including reconstruction or replacement of facilities to the same extent as existed on November 24, 1987.

(D) For the purposes of the segments designated by this paragraph, there are authorized to be appropriated such sums as may be necessary, but not to exceed $100,000, to the Secretary of Agriculture for development and land acquisition.

In 2001 American Whitewater participated in the public process associated with the access improvements at the Johnsdale Bridge a critical access point for the Wild and Scenic Kern River that serves as the take-out for the Forks of the Kern and the put-in for the Upper Kern.

American Whitewater has advocated for improvements to the river permit system for Forks of the Kern section of the Wild and Scenic Kern River. Specifically, we have sought recognition that many groups now have the ability to complete the run in a day. When the original Kern River Whitewater Floating Plan was developed in 1982, river managers assumed that all boating on the Forks section would be multi-day trips. The years since have seen major improvements in equipment and techniques, and today the vast majority of kayakers do the Forks in 4-8 hours, rarely going on an overnight trip there. American Whitewater has advocated for lifting the 15 people per day limit for day use, since this limit was originally established to mitigate impacts associated with overnight use.