Will State Agencies Let CA's Bay-Delta Estuary Get Trumped?

On January 31, the Trump Administration is scheduled to release its new proposal for the operations of the federal Central Valley Project and State Water Project under the Endangered Species Act (known as a biological assessment). It’s widely expected that the Trump Administration will propose to eliminate or greatly weaken existing protections for salmon, Delta Smelt, and other endangered species. But it’s not just fish that would be harmed—these existing protections also help sustain thousands of fishing jobs in California. 

These protections are also required under State law, which is why this is one of the more critical places where the State of California can #resist the Trump Administration’s rollbacks of environmental protections. While there are indications that this proposal was part of the anti-environmental “grand bargain” negotiated in secret between the Trump Administration and Governor Brown’s administration in late 2018, the director of the Department of Water Resources repeatedly asserted earlier this month that the State had not yet agreed to the proposal.

One of the key questions about this Trump proposal therefore, is whether the Newsom Administration will take a fresh look at these environmental rollbacks and stand up to the Trump Administration over the coming months.

The answer to that question may well determine how many of our native species go extinct, and whether California sustains a salmon fishery supporting thousands of jobs for future generations. 

It’s clear that increased protections for our native fish species are needed to prevent extinction. In August 2016, the Secretary of the Interior wrote a memorandum to President Obama that this “process will likely lead to new or amended biological opinions that will increase protections for these species [Delta Smelt and winter-run Chinook salmon],” and that these new protections will likely reduce water supply South of the Delta. State agencies have also indicated that greater protections are needed. For instance, last summer California Department of Fish and Wildlife notified the Feds that improved protections for salmon and other species are needed and raised concerns with many of the Trump Administration's proposals to weaken existing environmental protections. The State Water Resources Control Board also explained last year that it intended to incorporate protections in the existing biological opinions in its update of the Bay-Delta Plan, as well as significantly increasing instream flows and Delta outflows, and improving upstream temperature management, to protect and restore our native fish and wildlife.

But the Department of the Interior's 2016 memo was sent before Trump was elected and installed David Bernhardt, former counsel for the Westlands Water District, at the Interior Department. While the State of California and Obama Administration concluded that greater protections are needed, the Trump Administration is proposing to gut those environmental protections to increase pumping for Westlands and other water contractors. And while the Obama Administration’s August 2016 memo estimated that under a “very ambitious” schedule, it would take nearly 2 years to develop new biological opinions, the Trump Administration expects the U.S. Fish and Wildlife Service and National Marine Fisheries Service to complete new biological opinions in 135 days. The California Department of Fish and Wildlife will then have to evaluate those biological opinions to see if they comply with state law.   

When David Bernhardt represented Westlands Water District in litigation challenging the biological opinions several years ago, he lost in court. But now that he’s at Interior, from what we’ve heard he’s trying to not only recycle his flawed legal theories that were rejected by the courts, but he’s apparently also doing his best to produce biological opinions that look like those in effect when Bernhardt was at the Interior Department under the Bush Administration. Those Bush era biological opinions, which were invalidated by the Courts, lead to the current extinction crisis in the Delta. 

We’ll be looking to see whether the biological assessment proposes to:

  • Eliminate carryover storage requirements at Shasta Reservoir in the 2009 NMFS biological opinion and the January 19, 2017 proposed draft amendment that was supposed to strengthen those requirements;
  • Eliminate the San Joaquin River inflow:export ratio in the NMFS biological opinion;
  • Gut export restrictions (Old and Middle Flow requirements) in both biological opinions, replacing them with requirements that would only kick in when most of the fish are already dead at the pumps;
  • Eliminate the Fall X2 requirement in the Delta Smelt biological opinion;
  • Put the Bureau of Reclamation and Department of Water Resources in charge of making final decisions on real time operations, rather than requiring the state and federal fish and wildlife agencies to have the final say on operations as required today (this was required in the 2008 and 2009 biological opinions because USBR and DWR repeatedly ignored and refused to implement protections that were recommended by the fish and wildlife agencies back in the 2000s);  
  • Use a hypothetical baseline to compare the effects of these new proposals, rather than comparing the proposal to the status quo (including implementation the existing biological opinions). We’ve been told that Interior created a baseline that assumes that dams are not operated and salmon would go extinct under baseline conditions, which is intended to mislead decision-makers as to the effects of this proposal; 
  • Fail to use existing life cycle models for salmon and Delta Smelt to assess the impacts of the proposal, and includes little to no credible biological modeling of their effects;
  • Will not require independent scientific peer review, unlike the last several biological opinions.

Later this week the public should see what’s in the final biological assessment. If its anything like what we’ve heard, I expect that the State of California will fight this proposal in the coming months and won’t let our Bay-Delta estuary get Trumped.

About the Authors

Doug Obegi

Director, California River Restoration, Water Division, Nature Program

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