Controversy over the Trump Administration’s new Central Valley Water Plan Continues- California Questions Whether Fish Species Will be Adequately Protected

Last week, President Trump traveled to California to sign a memorandum implementing a new plan for the delivery of water to the state’s Central Valley. The water plan is controversial- while it will allow more water to reach Central Valley farmers, it will also impact fish species listed as threatened and endangered under the Endangered Species Act (ESA). That is due to the fact the updated water plans will allow for more diversions from the state’s Bay-Delta watershed that serves as habitat for these listed species.

Because of the changes that were proposed with the new Central Valley water plan, both the ESA and the National Environmental Policy Act (NEPA) were implicated. This meant that both the U.S. Bureau of Reclamation (BOR) and the National Marine Fisheries Service (NMFS) had to take statutorily mandated steps before the updated plan could go into effect. In 2018, President Trump issued a memorandum directing BOR and NMFS to complete their ESA and NEPA reviews for the Central Valley Project, with the aim of minimizing “unnecessary regulatory burdens and foster[ing] more efficient decision-making.” The memorandum set 2019 deadlines for the agencies to complete these reviews.

The consultation provisions of Section 7 of the ESA apply to the actions of federal agencies and aims to ensure that any proposed action by the agency would likely not jeopardize or destroy or adversely modify a species’ critical habitat. The consultation process itself involves the federal agency proposing the action, known as the “action agency” – here, BOR - to consult with the “expert agency”- NMFS for designated marine species and anadromous fish like salmon - to assess the impact of its proposed action on the listed species or its critical habitat. The expert agency then issues a biological opinion (BiOp) finding whether the action will result in jeopardy or adverse modification.

NMFS released in October 2019 its updated BiOps for multiple listed species that would be impacted by the updated plan, including salmon and steelhead. The new BiOps update the previous ones issued by the Obama Administration. Ultimately, NMFS found that the updated plan would not result in jeopardy or adverse modification to any of the listed species. But the new BiOps were controversial, as there were reports that NMFS scientists initially found that increased water diversions from the Bay-Delta watershed would endanger the listed fish species and result in jeopardy. However, these scientists were then replaced with a new review team that ultimately issued the no jeopardy or adverse modification finding. As a result, several groups have already filed lawsuits challenging the BiOps.

NEPA requires all federal agencies to consider the environmental impacts of their major actions that could significantly affect the environment. The BOR released its final Environmental Impact Statement (EIS) under NEPA this past December, but the Record of Decision making both the EIS and the BiOps effective was not signed until February 18, 2020 – the day before President Trump traveled to California and issued his memorandum.

NEPA requires agencies to consider alternatives to their proposed action, and BOR considered several different modifications to its proposed new water plan “to maximize water supply deliveries and optimize marketable power generation…and to augment operational flexibility by addressing the status of listed species.” BOR has stated that its chosen option “best balances the need to provide a safe and reliable water supply to farms, families and communities, and protects species with flow measures, habitat restoration, improved temperature management strategies, performance measures and strong oversight by independent panels.”

President Trump’s actions last week mean that BOR can now implement the revised water plan. But the President’s memo went a step further than the new plan, as it directs the agencies “to build upon the success of the Plan and ROD by supplementing the resulting operations, consistent with applicable law, to make deliveries of water more reliable and bountiful.” Meanwhile, California has already filed a lawsuit challenging the new plan, saying it violated the ESA and NEPA. Secretary of the Interior Bernhardt released a statement almost immediately saying that the ESA and NEPA analyses were both lawful and based on the best available science. For now, it seems, the saga over delivering water to the Central Valley and protecting listed species will continue.