Rewatering Napa’s Rivers
Natural Resources & Environment, 36(1): 1-5. 2021
5 Pages Posted: 23 Sep 2021
Date Written: August 18, 2021
Long-standing California laws offer fish populations strong protection. These laws prohibit many migration barriers, require dam owners to release flows to protect downstream aquatic life, bar unpermitted streambed alterations, obligate fish screens on water diversions, mandate consideration of fisheries in water rights decisions, and even provide constitutional protection for fishing access. Reading these laws in the abstract, one might think that Californians had found a way to have their cake and eat it, too—a robust water storage and delivery system that supports both a booming agricultural economy and healthy freshwater ecosystems. But no.
Instead, 80 percent of California’s native freshwater fish are likely to go extinct in the next 100 years, largely due to the very problems these laws sought to address. We focus in this article on California’s iconic salmonids, mostly salmon and steelhead, which have been particularly impacted by water infrastructure. In the next 50 years, 45% will likely go extinct, and 74% will likely disappear in the next 100 years.
Past legislative efforts to protect fishes were well-informed, but these laws were seldom enforced and now read as a series of broken legislative promises. Time and again, private interests overwhelmed efforts to protect the public good. This is the structural failure that Professor Joseph Sax sought to address through the modern public trust doctrine. Yet there is hope.
Private litigation built on public trust standing is reinvigorating old laws. By suing to enforce these laws as the legislative expression of the public trust, private attorneys general can require the state to fulfill its promises of healthy fisheries in California. Private litigation by Water Audit California (Water Audit) has breathed new life into California Fish and Game (CF&G) Code § 5937, a statute requiring dam owners to release enough water to keep downstream fish in good condition, and improved environmental conditions in the Napa River watershed. Water Audit is just one player in a broader litigation ecosystem, but its story shows that sound science and focused litigation can reopen historic habitats and increase fish populations.
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