Water dispute bedevils bill to blunt Trump’s environment aims

California’s campaign of legal challenges to Trump administration environmental rollbacks has been conducted mostly as a series of courtroom battles. Legislation now poised for final action would take that war with the president nuclear, by essentially adopting as California’s standards the environmental and workplace safety laws that existed at the end of the Obama administration.

It is the signature legislation from Senate leader Toni Atkins this year, and the only environmental proposal of such breadth. And — hardly surprising — controversy has surrounded it. Water issuesand endangered species reside at the heart of the contretemps, and it’s not clear whether the measure, whose fate will be decided in the Assembly by midnight Friday, will pass.

Officials in the Newsom administration have been active in the intense negotiations. The governor’s fledgling efforts to forge amicable relationships with Central Valley agricultural and water interests have come up against his strongly stated opposition to the Trump administration’s environmental-deregulation agenda. If the bill arrives at his desk, it’s unclear whether he will sign it.

The debate has followed a well-worn script played out across the West: Protected species require water that is also sought by cities and agricultural interests. The new element is Trump, a distant but tempestuous commander in chief accustomed to punishing those who oppose his policies.

What does Atkins’ bill say?

The legislation has one of those dare-you-to-oppose-it titles: The California Environmental, Public Health and Workers Defense Act of 2019.

The “defense” part is intended as a bulwark against Trump administration rollbacks across a spectrum of areas. The bill requires that state agencies broadly adopt the environmental and workplace safety laws that existed at the end of the Obama administration as California’s minimum standards.

State agencies would have to assess proposed changes to U.S. environmental and workplace safety laws. If the new rules would be less stringent than those in place on January 19, 2017 — the day before Trump took office — California officials could either adopt the Obama-era standards or impose stricter ones. That’s a direct challenge to the current president’s policies.

If federal agencies stripped protection from some species of salmon, for example, the state could restore them and even elect to make them stronger. Should the administration reverse a ban on chemical discharges into waterways, California would revert to the former law banning the practice.

If the federal Environmental Protection Agency were to ease air-quality rules, the state Air Resources Board could forgo the new national standards in favor of more stringent ones. If rules to make workplaces safe were rolled back, the state would re-establish them.

Atkins said in a statement to CalMatters that the intent of her bill is clear: “(It) puts in place critical protections to our clean water, clean air, workers’ rights and endangered species to preserve our laws in California, regardless of what the federal government does.”

Opponents say, among other things, that the bill would starve farmers of water and Southern California cities of reliable water supplies.

The measure would expire in 2025.

Haven’t we seen this kind of anti-Trump response from California before?

Yes, many times.

When Kevin de León was the state Senate leader, he proposed a bill in 2017 that contained much of the same language. It was intended, in part, to preempt the administration’s anticipated rollback of pending federal tailpipe emissions standards, which California help craft.

The bill failed in the face of opposition from many of the groups that oppose the current incarnation. And the final rule to significantly pare back the Obama-era auto standards is expected to be announced any day.

Since Trump’s election, California has responded to dozens of Washington policy changes by challenging them in court, which can be costly and typically delays resolution of the issue.  Increasingly, state officials have moved to enshrine critical benchmarks into law to shield certain protections from federal maneuvering.

So while Atkins’ bill is serious and far-reaching, there is little doubt about its subtext. As RL Miller, chair of the environmental caucus for the state Democratic Party, characterizes it, the legislation is “the glove across the face of Trump.”

How does the federal Endangered Species Act fit into all of this?

It’s all connected.

Separately from the Atkins bill, the state is trying to make a plan for who gets water, and how much, from the Sacramento-San Joaquin Delta as well as to balance those draws against water quality and an adequate habitat for threatened and endangered fish species.

Californians have heard of the tiny Delta smelt, a species on the brink of extinction. Giant water pumps near the city of Tracy send water south but also suck in the protected fish, which sometimes triggers shutdown of the pumps. Other species, such as the spring-run Chinook salmon, are also on the biological ropes and require specific water levels at certain times of year.

Opponents of this section of the bill argue that by freezing existing federal species protections, it would also keep in place older scientific analyses about the decline of certain species. However, biologists have continued to study the effects of water delivery on sensitive species, including a recent finding that salmon populations would be dramatically harmed by a Trump administration plan to allow more water to flow from the Delta to Central Valley farmers. That report was quashed.

A Trump administration plan to significantly change U.S. species law is critical. That’s because, state-run water projects all adhere to strict California species protections, but the Central Valley water project, which provides flood control and water to Sacramento and the Bay Area, is operated by the U.S. Bureau of Reclamation and would operate under less strict conditions.

The bill, proponents say, would level the playing field for all of California’s various water-conveyanceprograms by applying endangered species law equally to the state and federal projects. Environmental groups say that with the federal law stripped of its teeth, vigilance would be required to protect vulnerable plants and animals.

“We have been relying on the federal act to cover some species, but we will have to do more,” said Kathryn Phillips director, director of the California Sierra Club.

Last week, opponents of the bill’s species provision gained a powerful ally when California Sen. Dianne Feinstein and four Central Valley congressional Democrats signed a letter urging Atkins to amend or excise the endangered-species section.

A small but notable tweak softened the section somewhat, allowing state officials to consider applying legal protections to species under certain conditions, but not requiring that they do so.

What would the measure mean for water supplies?

Depends whom you ask.

The Delta is the West Coast’s largest estuary, and it teems with intersecting interests: Central Valley agricultural and water users, water contractors, recreational and commercial fishermen, conservationists. Twenty-seven million people rely on the region for water. At times, it seems that nearly as many people are arguing over the issue.

The state has been regulating the amount of water flowing out of the Delta, which has angered Central Valley farmers, who irrigate some 3 million agricultural acres.

Some growers have come to the table voluntarily for settlement discussions, which could compensate them for receiving less water for the benefit of the entirewatershed. A major argument from the bill’s opponents is that it would “shred” these ongoing negotiations with the state water board.

However, the legislation specifically notes that it would have no effect on the agreements: “This article does not affect the process by which voluntary agreements are entered into to assist in the implementation of new water quality standards lawfully adopted by the board.”

Dave Eggerton, Executive Director of the Association of California Water Agencies, nonetheless echoed the concern, saying the bill would make it “virtually impossible to go ahead with voluntary agreements.” He said the proposal would “not allow for flexibility, and create a lot of regulatory uncertainty.”

That’s because President Trump has jumped feet-first into the region’s water wars. Candidate Trump promised a cheering crowd in Fresno that he would look out for the interests of farmers by “opening up the water.” He backed that up during last year’s midterm elections by signing a memorandum that laid out an accelerated timeline for water deliveries by streamlining environmental reviews.

“This will move things along at a record clip. And you’ll have a lot of water,” Trump said then. “I hope you’ll enjoy the water you’ll have.”

What about national parks such as Death Valley and Yosemite, our national forests, big parts of the Mojave Desert and other federally owned places that Californians treasure?

The legislation says nothing about land management, oil leasing or long-range decisions about how the parks are operated and what’s allowed on federal land, which is nearly 48% of the state.

That’s partly because the state has nearly no say regarding federal land use, although U.S. managers try to harmonize federal rules with state standards as much as practicable, said John Leshy, who was the Interior Department’s legal and ethics chiefduring the Clinton administration.

But California has come up with a work-around when state officials determine that federal land decisions are incompatible with their aims.

“Even in situations where the state doesn’t have a veto over an action on federal lands, the state can make life difficult for the feds, politically and legally,” said Leshy, who is now an emeritus professor at UC Berkeley’s law school.

That happened last year when the Trump administration announced it intended to offer offshore oil and gas leases off the California coast for the first time since 1984. Then-Gov. Jerry Brown signed a law that barred the State Lands Commission — under the direction of then-Lt. Gov. Gavin Newsom — from allowing new infrastructure that would help energy businesses move their product onshore.

Trump’s plan to end a five-year leasing moratorium and open more than a million acres of federal land in California to oil and gas exploration elicited a similar response.

The Legislature passed a bill this week that would establish the same prohibitions on projects near national parks, monuments, wilderness and other specially protected places, by not allowing pipelines or other development to cross state land. That bill is on the governor’s desk.