CCLME.ORG - DAMS CONDUITS AND SCREENS

State
California
FGC Sec 5900-6100 Generally DAMS, CONDUITS, AND SCREENS (Fish)

FISH AND GAME CODE
SECTION 5900-6100

5900. As used in this chapter:
(a) "Dam" includes all artificial obstructions.
(b) "Conduit" includes pipe, millrace, ditch, flume, siphon,
tunnel, canal, and any other conduit or diversion used for the
purpose of taking or receiving water from any river, creek, stream,
or lake.
(c) "Owner" includes the United States (except that for the
purpose of Sections 5901, 5931, 5933, and 5938, "owner" does not
include the United States as to any dam in the condition the dam
existed on September 15, 1945), the State, a person, political
subdivision, or district (other than a fish and game district)
owning, controlling or operating a dam or pipe.
(d) "United States" means the United States of America, and in
relation to any particular matter includes the officers, agents,
employees, agencies, or instrumentalities authorized to act in
relation thereto.

5901. Except as otherwise provided in this code, it is unlawful to
construct or maintain in any stream in Districts 1, 13/8, 11/2, 17/8,
2, 21/4, 21/2, 23/4, 3, 31/2, 4, 41/8, 41/2, 43/4, 11, 12, 13, 23,
and 25, any device or contrivance that prevents, impedes, or tends to
prevent or impede, the passing of fish up and down stream.

5902. In including the United States within the scope of this
chapter the Legislature declares that it understands that the law and
policy of the United States with respect to the development of water
resources, the reclamation of land from flood and overflow, and in
all other respects is to comply with state laws respecting water.
The provisions of this chapter provide a procedure for the United
States to comply with the provisions and policy of state law
respecting its subject matter.

5903. The United States shall file with the commission pursuant to
this chapter a separate application for each dam it proposes to
construct or enlarge if an owner other than the United States would
be required to file an application pursuant to Division 3 of the
Water Code in order to construct or enlarge the same dam. The
application shall be on forms provided by the department.

5904. The application of the United States shall give the following
information:
(a) The name and address of the owner.
(b) The location, type, size, and height of the proposed dam and
appurtenant works.
(c) The storage capacity of the reservoir.
(d) Such other pertinent information as the commission requires.
(e) As accurately as may be readily obtained, the area of the
drainage basin, rainfall, and stream flow records and flood flow
records and estimates.
(f) The purpose for which the impounded or diverted water is to be
used.
(g) Such other appropriate information as may be necessary in a
given instance.
In instances wherein the physical conditions involved and the size
of the dam are such as to render the above requirements as to
drainage areas, rainfall, stream flow, and flood flow unnecessary,
the commission may waive the requirements.

5930. The department shall, from time to time, examine all dams in
all rivers and streams in this State naturally frequented by fish.

5931. If, in the opinion of the commission, there is not free
passage for fish over or around any dam, the department shall cause
plans to be furnished for a suitable fishway, and order in writing
the owner of the dam to provide the dam, within a specified time,
with a durable and efficient fishway, of such form and capacity and
in such location as shall be determined by the department. Such
fishway shall be completed by the owner of the dam to the
satisfaction of the department within the time specified.

5932. When all of the provisions of this article have been complied
with, if in the opinion of the commission changed conditions make
additional structures desirable for the free passage of fish, the
department may make such additional structures and may expend such
sums of money as it deems necessary for such additional construction,
including the cost of insurance against any liability which the
department may incur in connection with such structures.

5933. Whenever an application for approval of plans and
specifications for a new dam in any stream in this State, or for the
enlargement of any dam in any such stream, is filed with the
Department of Water Resources, pursuant to Part 1 (commencing with
Section 6000) of Division 3 of the Water Code, a copy of such
application shall be filed by the applicant with the commission. If
then the commission deems that the construction of a fishway over
such a dam is necessary for the preservation and protection of fish,
and that construction and operation of such fishway is practicable,
it shall set a date for a hearing to be held within 90 days after
filing of such application with the commission.
At such hearing the applicant shall be entitled to introduce
evidence to show that construction of the fishway is not necessary or
is not practicable, taking into consideration the height of the dam
and the amount of water available.
If, after the hearing, the commission finds that the construction
of the fishway is necessary and practicable it shall, within five
days after such hearing, notify the applicant to that effect.
After notice from the commission that a fishway is required, it
shall be unlawful to commence the construction of any new dam or the
enlargement of any dam without first obtaining the written approval
of the commission of the design for such a fishway.

5934. The commission or any party may, in any hearing, cause the
deposition of witnesses to be taken in the manner prescribed by law
for depositions in civil actions in the superior courts of this state
under Title 4 (commencing with Section 2016.010) of Part 4 of the
Code of Civil Procedure.

5935. The owner of any dam upon which a fishway has been provided
shall keep the fishway in repair and open and free from obstructions
to the passage of fish at all times.

5936. It is unlawful to wilfully destroy, injure, or obstruct any
fishway.

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 impracticable or detrimental to the owner to pass
the water through the fishway.

5938. Whenever in the opinion of the commission it is
impracticable, because of the height of any dam, or other conditions,
to construct a fishway over or around the dam, the commission may,
in lieu of the fishway, order the owner of the dam completely to
equip, within a specified time, on a site to be selected by the
department, a hatchery, together with dwellings for help, traps for
the taking of fish, and all other equipment necessary to operate a
hatchery station, according to plans and specifications furnished by
the department. After such hatchery has been constructed, the
department shall operate it without further expense to the owner of
the dam except as provided in Sections 5940 and 5941.

5939. The hatchery, traps, and other equipment necessary to operate
a hatchery station shall not be of a size greater than necessary to
supply the stream or river with a reasonable number of fish. The
owner of the dam shall permit the department to locate the hatchery,
dwellings, traps, and other equipment upon any of the land of the
owner of the dam upon a site or sites to be mutually agreed upon by
the department and the owner of the dam.

5940. If the owner of the dam generates electricity at the place of
the dam, he shall furnish sufficient light, without charge, for the
use of the hatchery.

5941. The owner shall permit the use of water, without charge, to
operate the hatchery.

5942. The commission may, in lieu of a fishway, hatchery, dwelling,
traps or other equipment necessary to operate a hatchery station,
order the owner of the dam to plant, under the supervision of the
department, the young of such fish as naturally frequent the waters
of the stream or river, at such times, in such places, and in such
numbers as the commission may order.

5943. (a) The owner of a dam shall accord to the public for the
purpose of fishing, the right of access to the waters impounded by
the dam during the open season for the taking of fish in the stream
or river, subject to the regulations of the commission.
(b) Subdivision (a) does not apply to any impoundment of water by
a dam that is wholly located on privately owned land that is
primarily agricultural or residential in nature if the impounded
waters are from a stream or river that is not naturally frequented by
fish and if the dam does not prevent the free passage of fish over
or around the dam. The Legislature finds and declares that this
subdivision is intended to be declaratory of existing law.

5944. The owner of a dam is not liable in damages to any person
exercising the right to fish, who suffers any injury through coming
in contact with, or tampering with, any of the property of the owner
of the dam.

5945. The department may sell, at cost, to the owner of a dam,
young fish ordered to be planted.

5946. The provisions of Section 5938 shall not be applicable to
dams constructed in District 41/2 after September 9, 1953.
No permit or license to appropriate water in District 41/2 shall
be issued by the State Water Rights Board after September 9, 1953,
unless conditioned upon full compliance with Section 5937. Plans and
specifications for any such dam shall not be approved by the
Department of Water Resources unless adequate provision is made for
full compliance with Section 5937.

5947. It is unlawful for the owner of a dam in District 41/2 to
release water from the dam, or any facilities for the generation of
hydroelectric energy operated in connection therewith, in varying
flows in such a manner as to destroy fish life below such release.

5948. No person shall cause or having caused, permit to exist any
log jam or debris accumulation or any other artificial barrier,
except a dam for the storage or diversion of water, public bridges
and approaches thereto, groins, jetties, seawalls, breakwaters,
bulkheads, wharves and piers permitted by law, and debris from mining
operations, in any stream in this state, which will prevent the
passing of fish up and down stream or which is deleterious to fish as
determined by the commission, subject to review by the courts.

5980. This article shall apply only to conduits described in
Section 5987, and conduits with a maximum flow capacity over 250
cubic feet per second of water.
In classifying conduits it is recognized that those involving the
passage of water through power devices and those of large size tend
to destroy fish in a greater degree than conduits of smaller size or
different type.
If this section is for any reason held to be unconstitutional,
such decision shall not affect the validity of the remainder of this
article.
The Legislature hereby declares that the persons owning conduits
referred to in this section shall be subject to the provisions of
this article.

5981. The department shall examine all conduits; and order the
owner of a conduit to install, and it is the duty of such an owner to
install, a screen on the conduit when, in the opinion of the
department, a screen is necessary to prevent fish from passing into
the conduit.
Except as provided in Sections 5987, 5988 and 5989, one-half of
the expense of constructing or installing a screen shall be paid by
the owner of a conduit and one-half by the department.

5982. An order to install a screen shall be in writing, and shall
specify the type, size, mesh, material and location of the screen,
the time within which the screen shall be installed, and an estimate
of the expense of installing the screen.

5983. When an order is made to install a screen, the department
shall pay the owner of the conduit upon whom the order is served
one-half of the estimated expense of the construction or installation
of the screen.

5984. If the expense of constructing or installing a screen exceeds
the estimated expense the department shall, upon written
notification by the owner of the conduit, inspect the screen, and pay
to the owner one-half of the amount estimated to be necessary to
complete the construction or installation of the screen.

5985. The owner of the conduit shall, within 10 days after
completing the installation of the screen, return to the department
any surplus money advanced by the department pursuant to this
article.

5986. All money paid by the department to the owner of a conduit
pursuant to this article shall be paid out of the Fish and Game
Preservation Fund.

5987. The department shall not pay one-half of the expense of the
construction and installation of any screen as provided in Sections
5981, 5983, and 5984 to any person engaged in producing, generating,
transmitting, delivering, or furnishing electricity for light, heat
or power.
If this section is for any reason held to be unconstitutional, the
decision shall not affect the validity of Section 5981, 5983 or
5984, and the Legislature hereby declares that the persons mentioned
in this section shall be subject to the provisions of Sections 5981,
5983 and 5984.

5988. When a screen has been installed, the owner may, by written
notice within 90 days after such installation, request the department
to inspect the screen for the purpose of accepting it. Thereupon it
is the duty of the department to inspect the screen, and if it has
been installed in accordance with the order and plans and
specifications agreed upon by the department and the owner as
provided in Section 5992 or approved by the Department of Water
Resources the department shall accept and approve the screen in
writing. If, upon such inspection it appears that the screen has not
been constructed and installed in accordance with such plans and
specifications, the department shall, within 60 days after such
inspection, notify the owner of any deviation from the order.
Thereupon such deviation may be remedied within 90 days, and a
further inspection requested.

5989. After acceptance, should the screen fail to function in an
efficient manner, no changes in conditions affecting its operation
having occurred subsequent to the acceptance of the screen, the owner
shall not be required to install a new screen. However, the
department may install another screen at the sole cost and expense of
the department of a type, size, mesh, and at a location agreed upon
by the department and the owner, or approved by the Department of
Water Resources, as provided in Section 5992 of this code.

5990. It is unlawful for the owner of a conduit to refuse, fail, or
neglect to install a screen in compliance with an order from the
department or to permit the screen to be removed or taken out of
place, except for repairs or cleaning while water is running in the
conduit.

5991. In lieu of the department's ordering the owner to install a
screen the department may, at its option, elect to construct and
install the screen itself, in which event the type, size, mesh, and
location of the screen and the time within which it shall be
installed shall be determined as provided by Section 5992 of this
code.
When the department elects to construct and install a screen,
one-half of the cost of construction and installation shall be paid
by the owner.
The department may pay the entire cost of the construction and
installation of a screen from the Fish and Game Preservation Fund, in
which case it shall, upon completion of the screen, notify the owner
of the amount of one-half of the cost, and the owner shall, within
30 days thereafter, remit that amount to the department.

5992. Any screen installed under any of the provisions of this
article shall be reasonably adequate to prevent fish from passing
into the conduit and not unnecessarily impede the flow of water or
prevent the owner from diverting the amount of water he is legally
entitled to divert.
The type, size, mesh, and location of the screen and the time
within which it shall be installed shall be mutually agreed upon by
the department and the owner of the conduit. In the event the
department and the owner of the conduit cannot agree upon the type,
size, mesh, and location of the screen and the time within which it
shall be installed, such matters shall be submitted for determination
to the Department of Water Resources whose decision thereon shall be
final and conclusive.
If the owner and the department fail to agree upon the type, size,
mesh, location, and time of installation of the screen within 60
days from the first submission of proposed plans and specifications
by the department to the owner, either the department or the owner
may submit such matters, in writing to the Department of Water
Resources for final and conclusive decision, and it shall, within 60
days from such reference, render its decision in writing determining
such matters.
The department shall maintain and keep the screen in repair, and
shall quarterly notify the owner in writing of the cost thereof, and
the owner shall within 30 days thereafter remit to the department an
amount equal to one-half of such cost.
The owner shall operate and keep free from debris any screen
installed, and shall quarterly notify the department in writing of
the cost thereof, and the department shall within 30 days thereafter
remit to the owner an amount equal to one-half of such cost.

5993. Before the installation of any screen under the provisions of
this article, the department and the owner shall enter into an
agreement defining the method of determining the cost of maintenance,
repairs, operation, and keeping the screen free of debris, which
agreement shall provide that in the event either the department or
the owner objects to such cost the matter shall be referred to the
Director of General Services for his final and conclusive decision.
6020. This article shall apply only to conduits with a maximum flow
capacity of 250 cubic feet per second or less of water, other than
those conduits described in Section 5987.
If this section is for any reason held to be unconstitutional,
such decision shall not affect the validity of Article 3 of this
chapter and the Legislature hereby declares that the persons owning
conduits referred to in this section shall be subject to the
provisions of Article 3 of this chapter.

6021. The department shall examine new or existing conduits, and
may install, maintain, repair, and replace fish screens, bypasses, or
other devices to prevent the passage of fish through a conduit, when
in the opinion of the department such a screen or device is
practical and necessary. The owner of a conduit shall grant to the
department the right of access to the conduit for the installation
and maintenance of the screen, and shall provide the department with
an easement for a site for the installation of the screen or device
deemed suitable by the department. The owner shall also supply
sufficient water for a bypass to carry fish stopped by the screen or
device back to the channel from which they were diverted, and an
easement for the bypass channel, but such easement shall not require
the acquisition or leasing of additional lands by the owner. No
water for a bypass shall be required if the channel from which the
water is diverted is dry or incapable of supporting fish life below
the point of diversion.

6022. Sufficient water for a bypass shall be not to exceed the
following:
(a) Diversions under three cubic feet per second capacity shall
not be required to bypass more than 18 gallons per minute.
(b) Diversions of three cubic feet per second or more, but under
10 cubic feet per second, shall not be required to bypass more than
30 gallons per minute.
(c) Diversions of 10 cubic feet per second or more, but under 20
cubic feet per second, shall not be required to bypass more than 40
gallons per minute.
(d) Diversions of 20 cubic feet per second or over shall not be
required to bypass more than one-half of 1 percent of the capacity of
the diversion.
(e) Diversions built by the Government of the United States and
requiring bypasses longer than one-quarter mile shall bypass such
amount of water as is necessary to return fish to the permanent
channel satisfactorily.

6023. The department shall serve written notice upon each owner of
its intention to install a fish screen, and shall describe therein
the distance downstream from the intake or in other manner the
location of the screen, the access required, and the amount of water
required for the bypass. The notice shall be served upon the owner
in duplicate, and in such form that the original copy upon signature
by the owner shall serve as an agreement to the installation of the
screen or device under the terms therein, and shall require the owner
to render such assistance, other than mechanical repair or
replacement of parts, necessary to keep the screen or device in
satisfactory operating condition. The hiring of additional labor
shall not be required for such assistance.

6024. If the owner fails to sign and return the agreement granting
the department the necessary rights for the installation of the
screen or device within 60 days after its service on him, the
department may install the screen as though the agreement had been
signed unless a decision of the Department of Water Resources is
requested. In the event the department and the owner of the conduit
cannot agree upon the type, size, mesh, or location of the screen or
device, the amount of water required for a bypass, or the time within
which the screen or device shall be installed, the matter shall be
submitted for determination to the Department of Water Resources,
whose decision thereon shall be final and conclusive. The Department
of Water Resources shall render its decision within 60 days after
either the department or the owner has submitted the matter in
writing and requested a decision.

6025. It is unlawful for the owner of a conduit to cause or permit
a screen to be removed or taken out of place, except for repairs or
cleaning, while water is running in the conduit, or to operate the
conduit with the bypass closed when the screen is operating as
provided in this article.

6026. Any screen installed under this article shall be such as will
be reasonably adequate to prevent fish from passing into the conduit
and will not unnecessarily impede the flow of water or prevent the
owner from diverting the amount of water he is legally entitled to
divert.

6027. This article does not prevent the department from removing or
permitting an owner to remove a screen or close a bypass during any
part of the year when the department finds that such action will not
endanger fish life.

6028. All money paid by the department to the owner of a conduit
pursuant to this article shall be paid out of the Fish and Game
Preservation Fund.

6100. Notwithstanding any provision of Article 3 (commencing with
Section 5980) and Article 4 (commencing with Section 6020), on or
after the effective date of this article, any new diversion of water
from any stream having populations of salmon and steelhead which is
determined by the department to be deleterious to salmon and
steelhead shall be screened by the owner. The construction,
operation, or maintenance costs of any screen required pursuant to
this article shall be borne by the owner of the diversion.
The department within 30 days of receipt of a notice of such
diversion, or within the time determined by mutual written agreement,
shall submit to the owner its proposals as to measures necessary to
protect the salmon and steelhead. The department shall notify the
owner that it shall make onsite investigation and shall make any
other investigation before it shall propose any measure necessary to
protect fishlife.
The department, or any agency of the state, shall provide the
owner of the diversion any available information which is required by
such owner in order to comply with the provisions of this article.
The diversion shall not commence until the department has
determined that measures necessary to protect fishlife have been
incorporated into the plans and construction of such diversion.