STATE LEGISLATION

    Fully protected fish or parts thereof may not be taken or possessed at any time and no provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected fish and no such permits or licenses heretofore issued shall have any force or effect for any such purpose; except that the commission may authorize the collecting of such species for necessary scientific research. Legally imported fully protected fish or parts thereof may be possessed under a permit issued by the department. The following are fully protected fish:

1. Colorado River squawfish (Ptychocheilus lucius)
2. Thicktail chub (Gila crassicauda)
3. Mohave chub (Gila mohavensis)
4. Lost River sucker (Catostomus luxatus)
5. Modoc sucker (Catostomus microps)
6. Shortnose sucker (Chasmistes brevirostris)
7. Humpback sucker (Xyrauchen texanus)
8. Ownes River pupfish (Cyprinoden radiosus)
9. Unarmored threepine stickleback (Gasterosteus aculeatus williamsoni)
10. Rough sculpin (Cottus asperrimus).

Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    Whenever the Department of Fish & Game is required, or provided an opportunity, to assess the adequacy of the project or to provide a detailed environmental impact statement or similar document pursuant to Public Law 91-190 or Sections 21100, 21101, or 21102 of the Public Resources Code, or any other provision of law, it shall determine the extent to which salmon and steelhead resources will be protected from damage by the project in question, together with the extents to which the agency or person preparing the plans for such project has incorporated therein plans for increasing the salmon or steelhead resources of the State. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    This Act, DFG Code 1726, declared that it is the policy of the State to: (a) establish and maintain wild trout stocks in suitable waters of the State which are readily accessible to the general public as well as in such waters in remote areas, and (b) establish angling regulations designed to maintain the wild trout fishery in such water by natural reproduction. It is the intent of the Legislature that the department, in administering its existing wild trout program, shall conduct a biological and physical inventory of all California trout streams and lakes to determine the most suitable angling regulations for each stream or lake. A determination shall be made for each stream or lake regarding whether it should be managed as a wild trout fishery, or whether its management should involve the planting of trout. In making such inventory, priority shall be given to those streams and lakes where public use is heaviest, which have the highest biological potential for producing sizable wild trout, which are inhabited by rare species, or where the quality of the fishery is threatened or endangered. Biological and physical inventories prepared for each stream, stream system or lake shall include an assessment of the resource status, threats to the continued well-being of the fishery resource, the potential for fishery resource development, and recommendations, including necessary changes in the allowed take of trout, for the development of each stream or lake to its full capacity as a fishery. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    This bill was passed by the California legislature and chaptered into the Fish and Game Code 6900 in 1988 (Section 6900 et seq.). Its intent was to implement the recommendations of the California Advisory Committee on Salmon and Steelhead Trout (CACSST) to conserve and restore the anadromous fisheries resources of the State. The CACSST is a citizen's advisory committee consisting of representatives from commercial and sport fishing organizations, native Americans, aquatic scientists, and public interest groups. The Act established the Salmon and Steelhead Trout Restoration Program within DFG, whose purpose is to "develop a plan and program that strives to double the current (1988) natural production of salmon and steelhead."

The Act declared that it is a policy of the State:

1. To significantly increase the natural production of salmon and steelhead trout by the end of this century.
2. To recognize and encourage the participation of the public in mitigation, restoration, and enhancement programs in order to protect and increase natural spawning salmon and steelhead resources.
3. That existing natural salmon and steelhead habitat shall not be diminished further without offsetting impacts of the lost habitat.

Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    This policy of the California Fish and Game Commission (FGC) was recently updated and amended. The policy recognizes the need to protect genetic integrity and habitat of all stocks and places management emphasis on natural stocks. The policy declares:

1. Management of steelhead will be directed towards protection and maintenance of populations and genetic integrity of all identifiable stocks.
2. Rescued juvenile steelhead must be returned to their natal stream and rescue will only be allowed when fish can be held until habitat conditions improve or they can be released immediately in other areas of their natal stream.
3. Restoration and acquisition plans will be developed and implemented to safeguard critical habitats such as estuaries, lagoons, and spawning and rearing areas, and securing necessary instream flows.
4. Existing steelhead habitat shall not be diminished further without offsetting mitigation of equal or greater long-term habitat benefits. DFG will oppose any development or project which will result in irreplaceable losses. Artificial production will not be considered appropriate mitigation for loss of wild fish or their habitat.
5. Sport fishing for adult and juvenile steelhead will only be permitted where DFG has determined that harvest will not harm existing wild populations or impair adequate returns of adults for sport fishing and spawning.
6. Resident fish will not be planted in drainages of steelhead waters if DFG has determined that it will interfere with steelhead populations.

Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    It is the policy of DFG to maintain the genetic integrity of all identifiable stocks of salmon and steelhead in California. Each salmon and steelhead steam shall be evaluated by DFG and the stocks classified according to their probable genetic source and degree of integrity.

    A classification system shall be employed to define stocks and the role of artificial production for the management of each salmon and steelhead stream. This classification system will guide management and restoration efforts, and policies relating to artificial production will also be compatible with this classification system.

    The salmon and steelhead stocks stream management goal is to manage streams for the following appropriate stock and only those stocks may be placed in the stream (each term is progressively inclusive of the preceding terms):

1. Endemic - Only historical naturally reproducing fish originating from the same stream or tributary.
2. Natural reproducing stocks within drainage - Naturally reproducing stocks from the drainage of which the stream is part.
3. Hatchery stocks within basin - Stocks which may include hatchery produced fish from streams within the drainage.
4. Naturally reproducing stocks from out of basin - Naturally reproducing stocks from streams outside the basin of which the stream is part.
5. Hatchery stocks out of basin - Stocks which may include hatchery produced fish from streams outside the basin.
6. Any stock - Any stock which appears to exhibit characteristics suitable for the stream system.

Artificial production limitations are defined according to the following terms:

• None - No artificial production or fish planting permitted; management shall be for natural production.
• Supplementary - Artificial production is less desirable than natural production and is allowed only to the extent that it provides for full stocking of the stream.
• Complementary - Artificial production is as important for fishery management purposes as natural production and may be used on a permanent basis to complement natural production.
• Hatchery - Managed principally for hatchery production with natural production protected but considered secondary.

Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    It is DFG's position that all potential impacts on fish and wildlife resources from development projects must be addressed and evaluated. DFG will seek implementation of means to prevent, or fully offset, impacts to resources and losses of habitat. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    The Fish and Game Commission Water Policy declares that it is a policy of the FGC that the quantity and quality of the waters of the State should be apportioned and maintained to produce and sustain the maximum numbers of fish and wildlife. This policy requires that DFG review and comment on proposed water development projects and applications for use; recommends and seeks adoption of proposals necessary or appropriate for the protection and enhancement of fish and wildlife and their habitats; opposes the issuance of permits for, or authorization of, water projects which do not adequately prevent or compensate for damage to fish and wildlife. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    The Fish and Game Code 5937 mandates that "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."

    Fish and Game Code Section 5937 is nearly as old as the State. Its predecessor was an 1850 law which prohibited any obstruction in any stream sustaining a salmon fishery. That law was amended in 1872 to require, as far as practicable, that the owner of a dam install a fishway over any obstruction in a stream. In 1915, the law was further amended to require continuous releases from any dam which had a fishway. Fish and Game Code Section 5937 was enacted in its current form in 1937. It differs from its predecessor in that it requires releases from every dam, with or without a fishway, so as to maintain the downstream fishery.

    Fish and Game Code Section 5937 conditions appropriative water rights and limits the availability of water for appropriation. It applies to every dam subject to the law. It requires the protection of "fish," which includes planted and native fish. It includes all life stages and thus requires the protection of spawning habitat. It includes not just trout and other finned invertebrates, but also "... mollusks, crustaceans, invertebrates, or amphibians...," which are included in Fish and Game Code Section 45's definition of fish. It requires that the releases from a dam must be sufficient to maintain individual fish in "good condition" and therein protects the fishery as a whole.

    Fish and Game Code Section 5937 requires continuous releases from a given dam—not just when it's feasible or convenient for the operator, but continuous and in an amount sufficient to maintain the downstream fishery in good condition. This law has extraordinary power. It is a basis for the State Water Resources Control Board's Decision 1631 (September 28, 1994) reducing by three-quarters Los Angeles's historical diversions from the Mono Lake tributaries.

    The Fish and Game Code does not contain a definition for the general term, "fish in good condition." A reasonable interpretation of "good condition" is: not perfect, but better than fair. Case law varies in interpretation. In the Mono Lake Cases, the term means the historical or pre-project conditions which existed before Los Angeles began diversions. (See California Trout v. Superior Court, 218 Cal.App.3d 187, 194 [1990].) In other cases, the State Water Resources Control Board (SWRCB) has held that "good condition" may mean a fishery which roughly corresponds with the current capacity of the stream.

    It is unclear how this code section applies to water rights which were issued prior to 1937 or to Federal Dams or to dams licensed by FERC. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    The California Water Code 1243 declares that the use of water for preservation and enhancement of fish and wildlife resources is a beneficial use. This code requires the State Water Resources Control Board (SWRCB) to notify DFG of any application for permit to appropriate water. Regulatory/Responsible Agency: State Water Resources Control Board (SWRCB), Division of Water Rights.

    The California Water Code 1707 was passed by the California Legislature and signed by the Governor in 1991. Section 1707 of the Water Code provides a mechanism whereby a holder of an appropriative water right can transfer the use of all or a portion of the right to instream uses. It authorizes a water right owner to petition the SWRCB for a change for purposes of preserving or enhancing wetlands, habitat, fish, and wildlife. It authorizes the SWRCB to approve the petition, regardless of whether the proposed use involves a diversion of water. In other words, the law allows for an existing water right to be left in the stream to benefit fish and wildlife, instead of being diverted for consumptive, or out-of-stream uses. The holder of the water right does not have to give up their right to the water and may limit the period of the water transfer. Unfortunately, it may be difficult to prevent downstream property owners with riparian rights from taking some or all of this water out of the stream. Regulatory/Responsible Agency: State Water Resources Control Board (SWRCB), Division of Water Rights.