During a campaign stop in Arizona last week, President Trump issued a memorandum outlining steps that the Federal Government will take to attack environmental protections for California’s salmon, rivers and Bay-Delta estuary. Trump's announcement did not make any immediate changes to environmental protections, but instead was primarily procedural, establishing a schedule for the Trump Administration to “redo” biological opinions (Endangered Species Act protections in the Bay-Delta) in 2019. It’s not surprising that this Administration is moving to weaken environmental protections in the Central Valley, given that Trump falsely claimed in 2016 there was no drought in California and that the Administration tasked the former attorney for the Westlands Water District with coming up with this plan.
Fortunately, the State of California holds considerable power to block the Trump Administration’s effort to undermine protections for our rivers and wildlife by standing up for State law. The State of California has substantial legal authority to resist those moves and to take action to restore the health of California’s rivers and Bay-Delta, and the thousands of fishing jobs that depend on their health. That is because in general, for more than a century federal law has generally deferred to the States on how to manage water resources within their boundaries, and federal law is even more explicit that the Federal government must comply with State law with respect to water projects in California.
Here are three steps that California can and should take:
- Adopt new water quality standards for the Bay-Delta estuary;
- Ensure that the new biological opinions are more environmentally protective than today, consistent with the best available science;
- Invoke provisions of the WIIN Act to prevent the Trump Administration from violating pumping limits in the Delta.
The State has significant authority within each of these areas, and over the coming weeks and months the State will have to decide whether to take action in each of these areas to protect fishing jobs, water quality, and the health of California’s rivers and Bay-Delta estuary.
1. Adopt new water quality standards for the Bay-Delta.
On November 7, the State Water Resources Control Board is scheduled to vote to adopt an amendment to the Bay-Delta Water Quality Control Plan, establishing new standards for water quality and flows in the Stanislaus, Tuolumne, and Merced Rivers. The proposed standards would require that 40% of the water flow downstream in these rivers, allowing farms and cities to divert 60% of the flow. That’s about the same amount of water as today in the Stanislaus River, and would increase flows on the Tuolumne and Merced rivers, but it would require less water to flow downstream than scientists and agencies have recommended to restore these rivers and their native salmon runs.
Equally important, the State Water Resources Control Board is still working on the draft proposal and environmental review for the second part of the update of the Bay-Delta Water Quality Control Plan, which focuses on flow and water quality standards for the Sacramento River and tributaries and the Bay-Delta estuary. The Board released a framework describing its proposed approach, which would increase flows in the Sacramento River, tributaries, and through the Delta (known as Delta outflow), in order to protect salmon and other native fish and wildlife in the estuary.
While the Trump Administration has asserted that the U.S. Bureau of Reclamation can decide not to comply with the State of California’s updated water quality standards on the Stanislaus River, claiming that federal law preempts state law as applied to the Central Valley Project, that’s hogwash. More than a century of Reclamation law and policy, going back to section 8 of the Reclamation Act of 1902, generally requires compliance with state water law, and the 1992 Central Valley Project Improvement Act (“CVPIA,” Public Law 102-575) requires the Central Valley Project to be operated to meet all obligations under state law, including all decisions of the State Water Resources Control Board. The language of the Act is unambiguous, and prior court decisions have repeatedly determined that the Central Valley Project must be operated in compliance with state law.
Allowing the Central Valley Project to be exempt from California’s water quality standards would devastate salmon, our native fish and wildlife, and the thousands of fishing jobs that depend on their health. It also would be completely unfair to all the other water rights holders who have to comply with the Board’s orders, including the State Water Project. The State Water Resources Control Board should adopt new standards on November 7th, and ensure that new standards for the Sacramento River, its tributaries, and the Bay-Delta are adopted in 2019.
2. Ensure that the new biological opinions are more environmentally protective than today, consistent with the best available science.
The primary import of President Trump’s memo was to establish a rushed schedule for completing new biological opinions in the Bay-Delta. Even though the National Marine Fisheries Service and U.S. Fish and Wildlife Service will make final determinations on new biological opinions under the Endangered Species Act, the State of California has significant authority in this consultation because it involves the operations of the State Water Project. As a result, the State of California has significant discretion and authority to determine what to propose as the operations of the two water projects in this consultation, and to reject proposals that are not consistent with the best available science.
In August 2016, the state and federal governments agreed to reevaluate these biological opinions, acknowledging that endangered salmon and Delta Smelt were on the brink of extinction, that the existing biological opinions were not adequately protecting these species, and new scientific information showed that greater protections were needed. Indeed, Secretary of the Interior Sally Jewell wrote a memo to President Obama that month, explaining that “the reinitiation process will likely lead to new or amended biological opinions that will increase protections for these species,” and that the new biological opinions could lead to further reductions in water diversions from the Delta.
It seems clear that more environmentally protective biological opinions that reduce water supply is not what the Trump Administration has in mind. Instead, this looks like a replay of the efforts in the Bush Administration (when, like today, David Bernhardt was working for the Department of the Interior) to substitute political science for biological science. The Bureau of Reclamation is likely to propose that the Central Valley Project and State Water Project be operated to weaken pumping restrictions in the Delta and require “credit” for non-flow measures even where there’s little to no evidence it would benefit the fisheries (recall that state and federal agencies rejected this approach of substituting habitat for flow in the context of the Bay Delta Conservation Plan just a few years ago, because it was not scientifically credible), while claiming that there isn’t sufficient time for new analyses, independent scientific peer review, and other measures to ensure the best available science is used. We’ve recently seen the Trump Administration direct the U.S. Fish and Wildlife Service to reject scientifically sound proposals for instream flows in the Tuolumne River, substituting policy decisions for sound science, and we should expect they will try to do the same here. But the State of California has the authority and ability to force the Feds to reject this approach in the beginning of the reinitiation of consultation, and ultimately, if the biological opinions do not comply with the California Endangered Species act, the State Water Project will not be able to rely on these biological opinions and will need their own permit under state law. Taking action now to ensure a credible process and proposal for the reinitiation of consultation will save the State a lot of anguish down the road, as well as ensuring that the Central Valley Project has to play by the same rules as the State Water Project.
3. Invoke provisions of the WIIN Act to prevent the Trump Administration from violating pumping limits in the Delta.
Finally, look for the Trump Administration to try to override protections for salmon and other endangered species in the Bay-Delta in early 2019, using authority under the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act in order to pump more water to Central Valley agribusinesses in violation of the existing biological opinions (even though this was not explicitly discussed in the recent memo). However, that same federal law gives California power to stop the Trump Administration from using the WIIN Act to violate scientifically sound environmental protections in the Bay-Delta.
For instance, if the Bureau of Reclamation seeks to use section 4003 of the WIIN Act to increase the Central Valley Project’s pumping from the Delta beyond the limits in the existing biological opinions, the State Water Project (which has to comply with those biological opinions pursuant to the California Endangered Species Act) would have to reduce pumping and lose water supply. Under section 4005, the federal government cannot use this authority if it would harm the water supply of the State Water Project or other water users, and the State can and should demand that the Bureau not use this authority to increase pumping because it would harm the State’s water supply. Last year, the Brown Administration largely used this authority under section 4005 of the WIIN Act to stop the Trump Administration from invoking section 4003, and the State will likely face the same situation early next year.
Overall, President Trump’s memorandum sets the Federal government on a collision course with the State, but thankfully the State has significant authority to prevent the Trump Administration from taking many of these actions. In 2009, the state legislature established that it is state policy to reduce reliance on water supply from the Delta and to invest in local and regional water projects. Rather than rolling back environmental protections, that approach of increased regional water supplies is still the best path forward for a water policy in California that is economically and environmentally sustainable. California has a tremendous Untapped Potential of sustainable water supply solutions.
However, having authority is one thing, and taking action is another: over the next few months, the State of California will have to decide whether it will #resist Trump, or whether it will collude with the Trump Administration as it works to undermine protections for California’s rivers, fisheries, and Bay-Delta estuary.