Attorney General Bonta Files Amicus Brief on Importance of Protecting California’s Waterways

OAKLAND – California Attorney General Rob Bonta, along with the California Department of Fish and Wildlife, today filed an amicus brief with the California Court of Appeal, Fifth Appellate District, in support of the environmental plaintiffs in Bring Back the Kern v. City of Bakersfield. Last year, a coalition of environmental groups, led by Bring Back the Kern and Water Audit California, were granted their motion for a preliminary injunction requiring the City of Bakersfield to cease completely drying up the Kern River in violation of California Fish and Game Code section 5937. This critically important state environmental statute requires all dam owners and operators to release sufficient water below dams to keep fish below the dams in “good condition.” 

However, certain agricultural water districts, served by the City’s diversions from the Kern River, appealed the trial court’s decision requiring some water to be left in the river, arguing that the trial court wrongly interpreted Section 5937 and that the City could continue to periodically completely drain sections of the river. The real-world impact of the City’s decisions was illustrated most recently the Friday before Labor Day of this year, when the City once again diverted all of the flows from the Kern River below the Calloway Weir to deliver to agricultural customers, leaving thousands of fish to die.

“California’s waterways and ecosystems are the lifeblood of our state’s rich and diverse wildlife and natural habitats,” said Attorney General Rob Bonta. “Yet, in Bakersfield, the sudden loss of Kern River flows due to the city officials’ decisions to divert all water away from the river, is leaving behind a dry wasteland where fish are dying in droves. With today’s amicus brief, we urge the Court to allow enough water to flow in the Kern River, as required by law, to preserve ecosystems and ensure sustainability and viability of our fish populations.”

“Conserving and protecting our fish and wildlife, and the habitats they call home, is of vital importance to the people of California. Failing to provide enough water for fish downstream not only damages ecosystems and fish populations but also violates California law,” said California Department of Fish and Wildlife Director Chuck Bonham. “This case could impact California’s ability to protect vulnerable fish and wildlife populations in the future. The California Department of Fish and Wildlife stands in partnership with Attorney General Bonta to help protect these irreplaceable fish populations for generations to come.” 

In the amicus brief, Attorney General Bonta highlights the importance of Section 5937 to protecting California’s waterways and wildlife. The brief argues that the City of Bakersfield must comply with the plain language of California Fish and Game Code Section 5937 and release sufficient flows below the City’s six dams to keep fish in the Kern River in “good condition.”  The brief further argues that the water districts’ concerns regarding the available water supply can be addressed at the remedy stage of the injunctive proceedings, when the trial court will decide what specific amounts of flows are necessary to comply with Section 5937 pending entry of final judgment in the case.

A copy of the amicus brief can be found here.