Newsom plans to sue over Trump water grab, but DWR releases plan that would increase water exports

The Gavin Newsom Administration today announced two separate but related actions that will have a big impact on protections for Delta smelt, Sacramento River winter-run Chinook salmon and other endangered fish species.

First, the California Department of Water Resources (DWR) issued a draft Environmental Impact Report on the long term operations of the State Water Project (SWP) that actually would increase Delta water exports.

Second, the Newsom Administration also announced that it intends to sue the federal government over the Trump Administration’s recent biological opinion that would increase water flows from federal water projects to corporate agribusiness interests in the San Joaquin Valley and away from the San Francisco Bay-Delta, imperiling endangered fish like the Delta smelt.

The Department of Water Resources said the first action, the draft EIR, “enables California’s water project operations to avoid relying on proposed federal biological opinions announced last month to achieve environmental approval to operate consistent with state law.”

Instead, DWR said it will seek approval from the California Department of Fish and Wildlife (CDFW) to operate the SWP in a way that supposedly “improves” protections for fish and complies with the California Endangered Species Act (CESA). 

“This draft points to a more sophisticated and nimble way to manage the State Water Project to improve our ability to protect species and operate more flexibly. This is essential in order to capture water when it’s available and leave more water when and where fish need it,” said DWR Director Karla A. Nemeth.

Nemeth claims that DWR’s draft proposal differs from the federal Biological Opinions in several key ways:

• “It improves species protection by vesting authority in CDFW to stop operational changes if it determines they will violate CESA standards.
• It includes multiple alternatives that provide a block of environmental water that can be used to offset pumping impacts in the Delta, with adjustments made over time as new information is learned.
• It provides clear direction on when Delta pumping can be increased during storm events and caps the amount that exports can be increased in those events.
• It includes updated modeling and quantitative analyses to support habitat actions in summer and fall to benefit Delta smelt.
• It includes specific protections for longfin smelt, a protected species under CESA, and a commitment to implementing a longfin smelt science plan.
• It does not seek to increase SWP exports.”

The state also announced that it intends to file litigation against federal agencies to “ensure adequate protection of endangered species, shared responsibility of state and federal water project operations to protect those species and to protect the state’s interests.”

“When California has the opportunity to tackle a longstanding challenge with innovative, collaborative solutions, we take it,” said Governor Gavin Newsom. “We are once again marshaling our collective resources — and building on our record of strong, science-based environmental policies — to chart a new path forward for water policy in California. As stewards of this state’s remarkable natural resources, we must do everything in our power to protect them."

Brenda Burman, Commissioner of the U.S. Bureau of Reclamation, said today’s announcement by the State of California to sue the Trump administration over the biological opinion is “disappointing.”

”From the beginning, we’ve been focused on cooperative solutions with the State of California to bring reliable water supplies to farms, families, communities and the environment,” said Burman in a statement. “Today’s announcement by Governor Newsom is disappointing in his preference to have judges dictate these important projects instead of the career professionals at the federal and state levels who have developed a plan based on the best science and significant input from the public. If that’s their choice, we’ll see them in court.”

Fishing and environmental groups applauded the lawsuit, but are currently reviewing the documents of the E.I.S. They said they have concerns about how the Delta pumps are to be operated and how managers will monitor and know when excessive pumping is damaging salmon and other fish species. They are also very concerned that DWR’s plan will actually increase exports rather than reduce them, as is required to increase salmon and other imperiled fish populations.

After reviewing the draft EIR, Kate Poole, Natural Resources Defense Council attorney, took issue with DWR’s claim that the document “does not seek to increase SWP exports.”

“Their own modeling shows that it DOES increase both SWP and CVP exports, by 373,000 acre feet per year on average (218TAF for the SWP, 155TAF for the CVP),” said Poole.

John McManus, President of the Golden State Salmon Association, said, “We’re heartened to see the state announce its challenge to the Trump/Bernhardt/Westlands salmon extinction plan. The grab-all-you-can Trump/Bernhardt/Westlands approach to seizing northern California’s waters is so egregious that the state really had no choice but to challenge it.”

However, McManus noted that some of the biggest of the State Water Project contractors have said they hoped the state would follow the lead of the Trump/Bernhardt/Westlands team and relax environmental protections for them also. He said further study of the state’s new proposal for operation of the State Water Project “will demonstrate to what degree they may get what they want.”

“We look forward to further studying the state’s new State Water Project proposal, but at first glance we have concerns about how the Delta pumps are to be operated and how managers will monitor and know when excessive pumping is damaging salmon runs,” concluded McManus.

Barbara Barrigan-Parrilla, executive director of Restore the Delta, said she is “happy to hear” that the California Natural Resources Agency has determined that operating rules for the Federal water project are not scientifically adequate and that the state will be pursuing litigation against the Trump administration.  

“We thank Governor Newsom, Secretary Crowfoot and Secretary Blumenfield for taking our concerns seriously. As always we will read newly released documents by the state for the State Water project with a critical eye on behalf of the estuary and Delta communities. We will see if they meet protective standards. We will then turn our critical eye towards future evaluation of the voluntary agreements as well. We will share our future findings,” she said.

In a tweet after issuing the press release, Barrigan-Parrilla noted, “If Delta exports are increasing with the State’s pumping operation plan, which they are (see page pdf page 665–66) how does this match the Delta Reform Act’s requirement of reduced Delta reliance on water exports? “

Regina Chichizola, co-director of Save California Salmon, pointed out this is the first time California has decided to do a separate environmental analysis than the federal government on state and federal water operations in the Central Valley. The State Water Project impacts many of California's most important and inconic salmon rivers and the San Francisco Bay Delta, the largest estuary on the West Coast of the Americas.

"It is time for California has to get serious about protecting our water,” said Chichizola. “We applaud the fact that the Governor plans to sue the Trump administration on the doctored Biological Opinion for operations of the Central Valley federal and state water projects, but we also need him to understand that California's salmon and drinking water in a state of crisis and to direct state agencies to take appropriate action.” 

While she noted that she hasn’t read the entire DEIR yet, she said she has “serious concerns” that the operations are enough to save California’s salmon or protect water quality, and the plan could be overshadowed by the non-protective voluntary agreements that Newsom has held up as an “alternative” to enforcing state law and state plans to restore salmon.

“We hope when making decisions on water that the governor will take into account all of the people that rely on California's clean water and fish for their income, drinking water, and way of life. We need him to take on big water users like Westlands Water District, and demand flows that will restore our salmon and drinking water quality, while respecting the rights of California’s native people,” explained Chichizola. 

On November 18, Save California Salmon’s Morning Star Gali, a member of the Pit River Tribe, asked the governor in a Guest Opinion in the Sacramento Bee to honor California’s native people by restoring salmon and ending efforts to hold up critical salmon restoration: 

“Last month, Gov. Gavin Newsom issued a proclamation declaring October 14, 2019 “Indigenous Peoples’ Day” in California. In this proclamation, he acknowledged that native people were stewards of the land before the conquest of California.

I thank the governor for the proclamation. However, last month -- on California Native American Day -- the governor also vetoed legislation, Senate Bill 1, that could have helped the state protect our salmon from Trump’s environmental rollbacks. This is unacceptable.

We need more than lip service from the governor. We need action.”

It is no surprise that Governor Newsom received a total of $755,198 from agribusiness in 2018, based on the latest data from http://www.followthemoney.org. That figure includes $579,998 in the agriculture donations category, combined with another $116,800 from Beverly Hills agribusiness tycoons Stewart and Lynda Resnick, owners of the Wonderful Company and the largest orchard fruit growers in the world, and $58,400 from E.J. Gallo.

By vetoing SB 1, supporting the voluntary water agreements (that he reaffirmed today in a press release) backing the Delta Tunnel, hiring grower William Lyons as a special "agriculture liaison" to the Governor's Office and then overseeing the issuing of a new draft EIR that increases water exports for the state and federal projects rather than reducing them, Newsom is apparently bending to the will of his agribusiness donors.