This Under-Used Law Could Save California’s Fresh Water Resources
Fish and Game Code 5937: Litigation Can Succeed Where State Agencies Have Failed
When water in California is scarce, it is the duty of the state to manage its distribution fairly and as defined by law. And when it comes to fish and dams, the state’s responsibility is very clearly stated in a California law known as Fish and Game Code 5937:
“…The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around, or through the dam to keep in good condition any fish that may be planted or exist below the dam. During the minimum flow of water in any river or stream, permission may be granted by the department to the owner of any dam to allow sufficient water to pass through a culvert, waste gate, or over or around the dam, to keep in good condition any fish that may be planted or exist below the dam, when, in the judgment of the department, it is impractical to detrimental to the owner to pass the water through the fishway.”
Fish are a reliable indicator of the health of an aquatic ecosystem and are thereby an indication of the quality and availability of water for all species, including humans. This is why F&G Code 5937 is so important.
More than 80 Percent of California’s Native Fish are in Danger of Extinction[1]
From its colonization by Euro-Americans, California was seen as a utopia with unlimited natural resources — including water. Their development of the state began with the seizure of land and water from native peoples and proceeded with the assumption that California’s mighty river systems could support any and all demands — from mining to agriculture, urban use, and recreation — while sustaining the spectacular runs of salmon that provided abundant food, jobs, and incomes for residents.
Time, nature, and greed have laid waste to that ideal. It has become clear that you can’t siphon the majority of water from our living rivers without destroying them.
In the distant past, water developers and major residential, industrial, and agricultural interests paid lip service to the idea that fishery protections were equal in importance to water deliveries. However, some water regulators aggressively rejected the notion that fish deserve any real consideration.
William R. Gianelli, the director of the California Department of Water Resources who oversaw the completion of the State Water Project (SWP), which delivers massive volumes of water to San Joaquin Valley farms and Southern California cities maintained fish and wildlife agencies should have only limited input on any major engineering project, given that federal and state engineers alone were qualified to evaluate relative costs and benefits for different stakeholders.[2] He generally criticized serious initiatives to protect fish and promoted water deliveries as his department’s overriding mission. Gianelli’s tenure marked a notable shift in state water policy, with water regulators and developers downplaying or even abandoning the notion that “fish and water delivery” were co-equal goals.
Since then, California’s anadromous fish populations have diminished drastically. Many of the state’s salmon and steelhead runs are on the brink of extinction, harming the fishing industry, tribes, and consumers. In 2024, commercial and sport salmon fishing was banned for the second consecutive year—only the fourth complete closure in state history.
According to Professor Kerrigan Bork of the University of California, Davis,[3] “Eighty percent of California’s native freshwater fish are likely to go extinct in the next 100 years, largely due to the very problems [state] laws seek to address.”
Salmon are both a key indicator and an active supporter of ecosystem viability; subsequently, crashing salmon numbers create a vicious ecological loop for the state’s streams. Theo Claire, an environmental scientist for the California Department of Water Resources (DWR) observed salmon play a crucial role in maintaining river health. “Without salmon, our rivers starve,” he said. “Salmon bring marine-derived nutrients from the ocean back up to our freshwater ecosystems.”
While several factors have contributed to the decline of fish populations, dams are clearly significant. Currently, the management of California’s dam systems fails to satisfy F&G 5937’s requirement to “…keep in good condition any fish that may be planted or exist below the dam.” The law is clear and unequivocal, and it encompasses real power. However, public agencies charged with the responsibility of protecting downstream resources have never enforced F&G 5937 in a way that is consistent with the statute’s explicit declaration. In fact, Bork recently told C-WIN, “All of the progress seems to be via private litigation; the state still isn't doing much to require compliance with 5937.”
California’s largest dam – Shasta Dam – is operated by the US Bureau of Reclamation as part of the Central Valley Project (CVP), the largest water delivery project in the state. Approximately 90% of CVP water goes to agriculture in the Sacramento and San Joaquin valleys, starving salmon and other species of freshwater flows. The CVP and SWP jointly divert so much water out of the Sacramento-San Joaquin River Delta that a once-thriving ecosystem is collapsing. Nevertheless, both the CVP and the SWP are subject to state law, including F&G code 5937.
Although agricultural interests exert tremendous political influence, state regulators could greatly ameliorate many of the problems facing California’s dwindling fisheries simply by enforcing F&G 5937 and providing adequate flows for native salmon and other fish at critical points in their life histories.
F&G Code 5937 is a valuable and effective conservation tool that could be used immediately to great and positive effect, and it’s high time we applied it.