The "voluntary agreement" on water fails

Gov. Gavin Newsom began his term with a quixotic act of well-intentioned malfeasance: he proposed voluntary agreement as the solution for California’s water problems. The price: the coming extinction for one or more fish species in the Delta. He now seems to be returning to court, the only place the people have a chance against the lawless Westlands Water District and its lobbyist, David Bernhardt, secretary of Interior, and the malignant narcissist on top of the manure pile.

But the governor is a decent man and he jumped on the virus problem early and about as successfully as any government could, given that the first death from the virus was in Silicon Valley.

The problem remains however: how will a very scarce supply of water this year be apportioned in a political economic arena where decency has been in shreads for decades.




E&E News Greenwire

Trump opens floodgates, and acrimony swamps Calif.

Jeremy P. Jacobs

On the campaign trail in 2016, President Trump swung into California's agricultural hub and vowed to deliver more water to the drought-ridden state's farmers.

"We're going to solve your water problem," he declared at a May 2016 rally in Fresno.

Three years into his administration, Trump is now opening the floodgate to deliver on that promise, setting up the most intense water war between the federal government and California in the state's history.

"There isn't precedent for this type of acrimony," said Jerry Meral, who served as a top water aide to Gov. Jerry Brown (D) during his administrations in the 1970s-1980s and 2000s.

"It's just a mess and very unfortunate," said Meral, who now works for the Natural Heritage Institute.

Trump returned to California's Central Valley in February, ceremonially finalizing an endangered species analysis that would allow more water to be pumped from the state's ecologically sensitive water hub to farmers.

His administration also converted temporary water delivery contracts with several water providers to permanent ones, a move that critics say will allow them to sidestep the environmental reviews previously required when the contracts were up for renewal.

Those included contracts with the Westlands Water District, the country's largest agricultural water provider, and former lobbying client of Interior Secretary David Bernhardt (Greenwire, March 2).

Bernhardt spoke at a "water forum" in the Central Valley the day before Trump's speech, emphasizing the administration's water efforts. That includes Interior's continued work on raising Shasta Dam in Northern California, a mammoth project that would deliver more water to federal contractors including Westlands. Reclamation recently allocated $8 million to preconstruction work on the project.

California says it doesn't want the dam raised — and that it would violate state law. It has issued its own endangered species analysis, which clashes with the Trump administration's and would be more restrictive of water exports. And this week, it asked a court to immediately block Trump's order from going into effect.

To proponents of the moves, however, Trump's engagement is a blessing.

"President Trump has been personally involved in discussions on issues related to California water," said Westlands General Manager Tom Birmingham. "I am unaware of attention at that level by any prior administration."

For environmentalists, there is an emerging concern that with Bernhardt at Interior's helm, the administration has found its footing on California water and there is little the state can do to stop it.

And they worry that the current pace is indicative of what may come in Trump's second term if he wins reelection in November.

"The Trump administration," Doug Obegi of the Natural Resources Defense Council said, "is not good at taking 'no' for an answer."

The hub

The key battleground is California's water hub, the Sacramento-San Joaquin River Delta east of San Francisco, and how much water is pumped out of it.

Water from the delta is shuttled south to more than 25 million people and millions of acres of farmland in the state's drier south via two complex systems of dams, canals and aqueducts: the federal Central Valley Project and California's State Water Project.

The 738,000-acre delta is ecologically sensitive; it is home to several threatened species, including the endangered delta smelt.

On his recent trip to Bakersfield, Trump emphasized that he was finalizing new biological opinions for the delta that would allow more water to be pumped south.

"[It's] going to give you a lot of water, a lot of dam, a lot of everything," Trump said. "You'll be able to farm your land, and you'll be able to do things you never thought possible" (Greenwire, Feb. 20).

California challenged those opinions in court, making good on a promise from Gov. Gavin Newsom (D).

"California won't silently spectate as the Trump Administration adopts scientifically challenged biological opinions that push species to extinction and harm our natural resources and waterways," Democratic Attorney General Xavier Becerra said in a statement.

Environmental groups including the Natural Resources Defense Council have also filed a lawsuit.

Obegi said the Trump administration "seems happy to let the delta smelt go extinct."

He added that the new biological opinions are already having an impact; they would reduce how much cold water is released from Shasta Dam in Northern California for salmon recovery.

"They are already doing damage under these new biological opinions," Obegi said.

At the end of March, a judge transferred the cases from the Northern District of California — frequently the preferred court for environmentalists — to the Eastern District of California at the Trump administration's request (Greenwire, March 23).

But California this week took the aggressive step of asking the court to immediately block the opinions. The analysis, the state said, "significantly reduced protections for the listed species and their designated critical habitat, thereby increasing the likelihood of their extinction."

The Bureau of Reclamation, which operates the Central Valley Project, sharply criticized the filing.

"At no other time in modern history has the State of California taken such ill-founded actions to directly hurt more than 25 million Californians by unnecessarily jeopardizing their water supply," Commissioner Brenda Burman said in a statement (Greenwire, April 22).

NRDC and its co-plaintiffs have also asked the court for an injunction. A ruling on those motions could come soon.

The review of the biological opinions began in August 2016, at the end of the Obama administration. Interior found then that new opinions "will increase protections for these species" and likely lead to reduced water exports.

The Newsom administration's management of the delta has also irked both environmentalists and California Republicans in Congress.

All six of them, including House Minority Leader Kevin McCarthy, sent a letter to Newsom this month criticizing a permit for the State Water Project under the state's endangered species law, applauding Trump's biological opinions and calling for the state to drop its lawsuit.

"This unprecedented action threatens to send the operations of the State Water Project ... and the Federal Central Valley Project ... into a downward spiral of conflict, confusion, and litigation," they wrote. "It also virtually eliminates the possibility of finding a lasting peace to California's never-ending water wars."

The permit has also been criticized by Obegi of NRDC and by other environmental groups as weakening previous standards.

Westlands' Birmingham argued that the new opinions are more protective of fish and wildlife.

"From my perspective, the criticisms of the new biological opinions are unfounded," he said. "The assertion that those new biological opinions were politically motivated are baseless."

He added: "What's disappointing is that this conflict ends up in court. That is not going to resolve the issues."

'Voluntary agreements'

Some of the players argue that despite the acrimony, there is some common ground.

Newsom, for example, has continued to push for "voluntary agreements" to address water woes.

And Birmingham said what the state is proposing is more similar to the Trump administration's opinions than what is portrayed in the media.

"When you look at the differences between the what is contained in the biological opinions and what the state of California has identified as means of addressing its concerns, there is very little difference between the Trump administration and the state of California," he said.

Sen. Dianne Feinstein (D-Calif.) and four California House Democrats sent letters to Newsom and Bernhardt with a straightforward message: Work it out.

"These issues," they wrote in their letter to Newsom, "do not need to be resolved through litigation if a framework for voluntary agreements can be reached with the necessary parties, and early implementation provides interim protections for listed fish species to the state" (Greenwire, April 16).

Meral, the adviser to former Gov. Brown, said Democratic governors have found ways to work with conservative administrations in the past, which underscores just how contentious the relationship between the Newsom and Trump administrations has now become.

Brown and President Reagan, for example, found common ground even though "they were not political soul mates," Meral joked.

But greens, however, worry that Newsom's emphasis on voluntary agreements will result in capitulating to the administration. And they say this could just be the start.

"I think there is more stuff coming from the Trump administration," Obegi said, given "the Trump administrant's general approach of thinking they are above the law."



Newsom’s water gambit “potentially unlawful”

Alex Tavlian

U.S. Interior Secretary David Bernhardt isn’t shying away from reminding Californians who reigns supreme in its water wars.

In a letter issued Tuesday, Bernhardt reminded California leaders that its ability to act unilaterally in enacting restrictive rules governing the Sacramento-San Joaquin Delta is limited and could violate the law.

Bernhardt staked this position in response to California Democrats on Capitol Hill, who sent two divergent missives to the Interior Department and Gov. Gavin Newsom over growing dissension over California’s water.

At the center of it all: a conflict over the environmental rules governing pumping water from the Delta to the San Joaquin Valley and Southern California.

In February, the Interior Department formally adopted new environmental guidelines, known as biological opinions, that gave water managers greater flexibility in pumping water south from the Delta.

Shortly thereafter, California Attorney General Xavier Becerra and the Newsom administration initiated litigation challenging the Federal biological opinions.

Amid the coronavirus pandemic, adopted its own set of environmental regulations – via an incidental take permit – for the State Water Project.

The end result for state water users is an estimated 200,000 acre-feet of water being sent to the Pacific Ocean and a price tag of $200 million over its 10 year lifespan.

Under the new incidental take permit, final pumping authority is placed in the hands of the state’s Department of Fish and Wildlife – not the Department of Water Resources.

Bernhardt informed the California Democrats – Sen. Dianne Feinstein and Reps. Jim Costa, TJ Cox, John Garamendi, and Josh Harder – that despite the legal warfare, Federal water managers are still experiencing some level of cooperation from their California counterparts.

“Though it may seem strange, given the contentious circumstances in which we have found ourselves, we are nonetheless pleased that the State continues to participate with implementing actions associated with our 2019 biological opinions,” Bernhardt wrote.

As for reasserting Federal supremacy, Bernhardt first outlined the state’s actions – notably litigation and the incidental take permit issuance – since the U.S. Bureau of Reclamation signed the record of decision to formally adopt the biological opinions for the Central Valley.

“Given the extensive collaboration between the Federal and State agencies in the development of the biological opinions are strongly grounded in the best available science, I believe the State’s recent actions and litigation are ill-founded and potentially unlawful,” he wrote.

But, perhaps most importantly, Bernhardt also echoed sentiments expressed by the powerful Metropolitan Water District of Southern California, who recently voted to initiate a lawsuit over the state’s new environmental restrictions, arguing that the state’s new regulations don’t replace or evade complying with Federal environmental laws or the biological opinions.

“I also agree with Metropolitan that there is no technical or scientific justification for concluding that the State’s ITP is better or more protective than the Federal biological opinions simply because it does not seek to increase [State Water Project] exports,” Bernhardt’s letter reads.

“There can be no ‘stand alone permit’ apart from the Federal process to protect species under the Endangered Species Act,” he added.