THIS JUST IN … Newsom administration files lawsuit over biological opinions; Secretary Bernhardt responds

This just in from California Attorney General Xavier Becerra:

California Attorney General Xavier Becerra, the California Natural Resources Agency, and the California Environmental Protection Agency today filed a lawsuit against the Trump Administration for failing to protect endangered fish species from federal water export operations.

The lawsuit asserts that biological opinions prepared by federal agencies under the Endangered Species Act to direct water project operationslack safeguards for protected species and their habitat in the Sacramento and San Joaquin River watersheds, including the Bay-Delta.

Filed in the U.S. District Court for the Northern District of California, the lawsuit requests that the court declare the Trump Administration’s adoption of the biological opinions unlawful.

“As we face the unprecedented threat of a climate emergency, now is the time to strengthen our planet’s biodiversity, not destroy it,” said Attorney General Becerra. “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.”

“We are challenging the federal biological opinions, which do not currently govern water project operation in the Delta, to protect highly imperiled fish species close to extinction,” said Governor Gavin Newsom. “Our goal continues to be to realize enforceable voluntary agreements that provide the best immediate protection for species, reliable and safe drinking water, and dependable water sources for our farmers for economic prosperity. This is the best path forward to sustain our communities, our environment and our economy.”

The lawsuit challenges the actions of the Bureau of Reclamation, the federal agency which adopted the biological opinions. The lawsuit also challenges the biological decisions issued in October 2019 by the National Marine Fisheries Services (NMFS) and the U.S. Fish and Wildlife Service (USFWS), which lack sufficient protections for endangered and threatened fish.

The lawsuit argues the agencies’ biological opinions and the Bureau’s decision violate the law because the Trump Administration:

Fails to provide actual analysis of whether the effects of its action applied to current conditions would tip a species toward extinction;

Improperly relies on uncertain plans to mitigate the harms of project operations;

Ignores the requirement that a biological opinion must consider not only the continued survival of listed species, but also their recovery;

Neglects to consider the material decline of the smelt (fish), and provides a limited analysis of climate change impacts;

Disregards the National Environmental Policy Act by failing to provide the public with a meaningful opportunity to comment on relevant information about the proposed action and potential impacts and failing to adequately respond to public input; and

Puts at risk Delta smelt, Chinook salmon, Central Valley steelhead, and other fish species. Previous biological opinions by the agencies addressed the risk posed to the listed species’ continued existence by Central Valley Project operations and required measures to limit impacts.

The Bureau of Reclamation adopted new biological opinions that do not adequately protect species and highly sensitive and critical habitat throughout California. This lack of adequate protection would cause long-term and irrevocable damage to protected species in California’s Sacramento and San Joaquin Rivers.

The lawsuit asserts the Trump Administration’s actions violate the Administrative Procedure Act and the National Environmental Policy Act.

In addition to today’s lawsuit, Attorney General Becerra, the California Environmental Protection Agency and the California Natural Resources Agency sent a 60-day Notice Letter to the Bureau that puts the Trump Administration on notice of California’s intent to file additional claims alleging that the Bureau’s decision to approve the biological opinions violates the federal Endangered Species Act.

Attorney General Becerra has unwaveringly defended California’s environment and protected species. On September 25, 2019, Attorney General Becerra led a coalition of 18 attorneys general and the City of New York to file a lawsuit challenging the Trump Administration’s rollback of the Endangered Species Act. Just over a year earlier, Attorney General Becerra, leading a coalition of seven attorneys general, filed a lawsuit challenging the Administration’s decision to roll back protections under the Migratory Bird Treaty Act and endanger millions of migratory birds including bald eagles. In 2019, Attorney General Becerra successfully blocked Westlands Water District from taking unlawful action to raise the Shasta Dam, which would have irreparably damaged the McCloud River and its wild trout fishery and inundated sacred lands of the Winnemem Wintu tribe.

A copy of the lawsuit is available here.

And then this, from Secretary Bernhardt:

“Our team of career professionals did a great job using the best available science to develop new operational plans for the coordinated operations of the Central Valley Project and State Water Project. The governor and attorney general just launched a ship into a sea of unpredictable administrative and legal challenges regarding the most complex water operations in the country, something they have not chartered before. Litigation can lead to unpredictable twists and turns that can create significant challenges for the people of California who depend on the sound operation of these two important water projects.”

Encourage Newsom to Protect the Greater Bay-Delta Ecosystem

Yesterday, at an event in Bakersfield, President Trump announced he would move forward with a plan to allow more pumping from the Delta.  Governor Newsom announced he would sue.  You can read about it in the Sacramento Bee.

You might recall that last November Governor Newsom announced he would sue the Federal government over the biological opinion based on fake science that determined increasing diversions from the Delta would not harm threatened and endangered species. Newsom didn’t follow through, until now?

The Governor needs to hear from his constituents that we support every effort to protect and restore the greater Bay-Delta ecosystem, including the Tuolumne River.  Please take a few minutes to email the Governor through his website and encourage him to follow through on the lawsuit —

Thank you for taking prompt action!

-Peter Drekmeier

P.S.  You might also be interested in this article from the SF Chronicle a couple of days ago —

Newsom pledged to fix California water politics. Now he’s bogged down in the delta

Soon after taking office last year, Gov. Gavin Newsom pledged to break through the “status quo” of California water politics, plagued by decades of litigation and impasse.

“We have to get past the old binaries, like farmers versus environmentalists, or North versus South,” the governor said in his 2019 State of the State address. “Our approach can’t be “either/or.” It must be “yes/and.”

One year later, the Newsom administration appears to be a house divided on water, as competing interests pull it in opposite directions.

The main flashpoint is the Sacramento-San Joaquin Delta, a threatened estuary and source of water for a majority of Californians. In an unusual public disagreement with a sister agency, the California Fish and Wildlife Department said proposed state rules for pumping water supplies from the delta would worsen conditions for delta smelt and other fish on the brink of extinction.

Newsom has also pledged to stand up to the White House on environmental issues. Yet two months after state officials vowed to sue the Trump administration to block a rollback of federal endangered species protections for imperiled native fish, no lawsuit has been filed.

And the state’s high profile attempts to negotiate a settlement with major water users over tough new flow requirements for delta tributaries have stalled.

“A lot of people are wondering what’s going on,” said Kim Delfino, California director for Defenders of Wildlife, an environmental group. “It’s a huge mess.”

In interviews, Natural Resource Agency officials rejected suggestions of internal conflict and disarray.

“I don’t think there’s a divorce, I don’t think there’s a major split,” fish and wildlife director Chuck Bonham said of his department’s polite, but highly critical comments on the Department of Water Resources’ delta pumping proposal.

Rather, he said, two departments with different authorities are working their way through a complicated environmental review process in an unprecedented situation.

The State Water Project, which supplies Southern California with delta water, has historically adhered to federal Endangered Species Act protections for delta smelt, chinook salmon and other imperiled species.

But in the face of the pending Trump rollbacks, the Newsom administration decided to do something California has never done before — develop its own set of delta fish protections under the California Endangered Species Act.

That has set the resources agency down a path strewn with political and practical potholes.

The Metropolitan Water District of Southern California and other state project customers want the administration to go along with the Trump rollback and relax pumping restrictions that have cost them delta deliveries.

But embracing the Trump plans would not be good optics in a state that considers itself a leader of the Trump resistance.

Moreover, in formal comments filed Jan. 6, the fish and wildlife department argued that delta protections need “strengthening, not weakening.” It added that “any diminishment of existing protections could worsen these species conditions.”

The U.S. Bureau of Reclamation has further complicated matters by signaling that its delta pumping operations would not comply with stricter state endangered species rules.

That would create a practical nightmare in the Northern California delta, which serves as the center of the state’s vast water supply system.

Tougher state standards, for example, could mean that federal irrigation customers of the Central Valley Project gain supplies at the expense of Metropolitan and other state customers. On the other hand, if federal pumping violates state protections, California could block the reclamation bureau from using state canals it sometimes needs to deliver supplies to San Joaquin Valley farms.

That scenario has kept state and federal water managers talking.

“I think all the agencies involved are open to finding a way forward to meet their concerns without lawsuits,” said Natural Resources Sec. Wade Crowfoot. “There is a lot of constructive discussion happening on a daily basis between the federal and state agencies on all manner of management questions.”

“We think litigation should be the last resort,” he added. “But if needed, we will pursue that.”

In a delta face-off with the Trump administration, California has some powerful weapons. It controls state pumps that can export more water than the federal facilities. And both reclamation law and the 1992 Central Valley Project Improvement Act dictate that the federal water project meet state water quality standards.

“We’re not powerless. The state has some leverage,” said Jeffrey Mount, a senior fellow at the Public Policy Institute of California. But “nobody benefits from this kind of standoff — I get why the administration hasn’t pulled the trigger on the lawsuit.”

Environmental attorney Doug Obegi doesn’t. Noting that California has filed dozens of lawsuits against Trump policies, Obegi said he is optimistic the state will sue “and that fish and wildlife will stick to its guns.”

“I think fish and wildlife’s letter highlights their consistent and ongoing concerns with weakening protections for salmon and endangered species in the delta. What’s unusual is that this dispute between the state agencies has seen the light of day,” said Obegi, a senior attorney with the Natural Resources Defense Council.

To operate delta exports under the state Endangered Species Act, the water resources department must obtain a permit from fish and wildlife, which appears to be scoring some points.

In draft environmental documents released in November, the water resources department estimated that its proposed pumping rules would boost the State Water Project’s annual delta exports by an average of roughly 200,000 acre feet — enough to supply 400,000 households for a year.

But the department’s December permit application outlined a less aggressive pumping approach. Water resources “considered the feedback from parties, including fish and wildlife, and have come back with a permit application … that commits to no net increase in exports,” Crowfoot said.

More changes are possible before fish and wildlife issues the permit this spring, said water resources director Karla Nemeth.

“I don’t think DWR was surprised by the fish and wildlife comments … because those are all the issues we’re talking about,” she said. “There’s more work to do and we expect to keep going.”

Fish and wildlife biologists also rejected a premise of the Trump rollback and the initial water resources proposal. Both would rely on real-time monitoring of where imperiled fish are swimming in the delta to dictate pumping levels instead of the strict seasonal guidelines that have been in place for the past decade.

Given that the numbers of delta smelt and longfin smelt have plummeted to record lows in recent years, fish and wildlife said such an approach could create “a bias toward concluding that fish are not in the system when, in fact, they are.”

In a separate but related matter, the Newsom administration has been trying to negotiate a settlement with major water users to avert a legal war over new flow standards that would make cities and farms leave more water in delta tributaries — and eventually the delta — to support migrating salmon.

Major river users upstream of the delta have already filed a slew of lawsuits to block the first set of flow standards, which were adopted by the State Water Resources Control Board in late 2018.

Westlands Water District, California’s biggest irrigation agency, walked away from the settlement talks after the state declared it would sue to stop the federal rollbacks in the delta.

Crowfoot said his agency would soon release an assessment of whether proposed settlement terms would satisfy the water board’s environmental standards.

Jeffrey Kightlinger, general manager of the Metropolitan water district, said his agency is still involved in the flow talks, but is unsure of the outcome.

The governor’s office, he observed, is “trying to strike a balance — and that’s very hard with these thorny issues.”

“I’ve seen them be pretty realistic that, ‘Yes, we’re going to have a lot of unhappy people.”


Trump Removes Pollution Controls on Streams and Wetlands


WASHINGTON — The Trump administration on Thursday will finalize a rule to strip away environmental protections for streams, wetlands and other water bodies, handing a victory to farmers, fossil fuel producers and real estate developers who said Obama-era rules had shackled them with onerous and unnecessary burdens.

From Day 1 of his administration, President Trump vowed to repeal President Barack Obama’s “Waters of the United States” regulation, which had frustrated rural landowners. His new rule, which will be implemented in the coming weeks, is the latest step in the Trump administration’s push to repeal or weaken nearly 100 environmental rules and laws, loosening or eliminating rules on climate change, clean air, chemical pollution, coal mining, oil drilling and endangered species protections.

Mr. Trump has called the regulation “horrible,” “destructive” and “one of the worst examples of federal” overreach.

“I terminated one of the most ridiculous regulations of all: the last administration’s disastrous Waters of the United States rule,” he told the American Farm Bureau Federation’s annual convention in Texas on Sunday, to rousing applause.

“That was a rule that basically took your property away from you,” added Mr. Trump, whose real estate holdings include more than a dozen golf courses. (Golf course developers were among the key opponents of the Obama rule and key backers of the new one.)

His administration had completed the first step of its demise in September with the rule’s repeal.

His replacement on Thursday will complete the process, not only rolling back 2015 rules that guaranteed protections under the 1972 Clean Water Act to certain wetlands and streams that run intermittently or run temporarily underground, but also relieves landowners of the need to seek permits that the Environmental Protection Agency had considered on a case-by-case basis before the Obama rule.

It also gives President Trump a major policy achievement to bring to his political base while his impeachment trial continues.

“Farmers coalesced against the E.P.A. being able to come onto their land, and he’s delivering,” said Jessica Flanagain, a Republican strategist in Lincoln, Neb. “This is bigger news for agricultural producers than whatever is happening with the sideshow in D.C.,” she added.

The new water rule will remove federal protections from more than half the nation’s wetlands, and hundreds of thousands of small waterways. That wouldfor the first time in decades allow landowners and property developers to dump pollutants such as pesticides and fertilizers directly into many of those waterways, and to destroy or fill in wetlands for construction projects.

“This will be the biggest loss of clean water protection the country has ever seen,” said Blan Holman, a lawyer specializing in federal water policy at the Southern Environmental Law Center. “This puts drinking water for millions of Americans at risk of contamination from unregulated pollution. This is not just undoing the Obama rule. This is stripping away protections that were put in place in the ’70s and ’80s that Americans have relied on for their health.”

Mr. Holman also said that the new rule exemplifies how the Trump administration has dismissed or marginalized scientific evidence. Last month, a government advisory board of scientists, many of whom were handpicked by the Trump administration, wrote that the proposed water rule “neglects established science.”

But farmers and fossil fuel groups supported the change.

“This is a big win for farmers, and this is the president delivering what he promised,” said Donald Parrish, senior director of regulatory affairs for the American Farm Bureau Federation, which had lobbied for years to weaken the Obama administration’s water rules.

Karen Harbert, chief executive officer of the American Gas Association, said the new rule “would restore the proper balance between federal and state regulation of our nation’s waters and protect our rivers, streams and lakes without stifling construction of important infrastructure.”

The Obama rule protected about 60 percent of the nation’s waterways, including large bodies of water such as the Chesapeake Bay, Mississippi River and Puget Sound, and smaller headwaters, wetlands, seasonal streams and streams that run temporarily underground. It limited the discharge of pollutants such as fertilizers, pesticides and industrial chemicals into those waters.

The new rule, written by the Environmental Protection Agency and the Army Corps of Engineers, will retain federal protections of large bodies of water, as well as larger rivers and streams that flow into them and wetlands that lie adjacent to them. But it removes protections for many other waters, including wetlands that are not adjacent to large bodies of water, some seasonal streams that flow for only a portion of the year, “ephemeral” streams that only flow after rainstorms, and water that temporarily flows through underground passages.

Legal experts say that Mr. Trump’s replacement rule would go further than simply repealing and replacing the 2015 Obama rule — it would also eliminate protections to smaller headwaters that have been implemented for decades under the 1972 Clean Water Act.

“This is rolling back federal jurisdiction of the Clean Water Act further than it’s ever been before,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. “Waters that have been protected for almost 50 years will no longer be protected under the Clean Water Act.”

That could open millions of acres of pristine wetlands to pollution or destruction, and allow chemicals and other pollutants to be discharged into smaller headland waters that eventually drain into larger water bodies, experts in water management said. Wetlands play key roles in filtering surface water and protecting against floods, while also providing wildlife habitat.

Ean Thomas Tafoya, a Colorado-based clean water activist with the group GreenLatinos, said the new rule could harm the quality of the water in the Colorado River, which supplies water to 17 western states.

“We are a headwater state,” he said. “This rollback will affect almost every single stream that flows into the Colorado River.”

Mr. Tafoya said about 90 percent of the streams that supply the Colorado River run only after rainfall or snowmelt. Under the new Trump water rule, many of those streams will not qualify for federal pollution protection. But Mr. Tafoya said pollutants such as chemical pesticides that end up in those dry stream beds could nonetheless be swept into larger bodies of water when the streams begin running after the spring thaw of mountain snow.

“The toxics or poisons that lie dormant will still be there when the streams are reactivated,” he said. “They will still get into the larger bodies of water.”

Government scientists, even those appointed by the Trump administration, say those concerns are justified. The E.P.A.’s Scientific Advisory Board, a panel of 41 scientists responsible for evaluating the scientific integrity of the agency’s regulations, concluded that the new Trump water rule ignores science by “failing to acknowledge watershed systems.” They found “no scientific justification” for excluding certain bodies of water from protection under the new regulations, concluding that pollutants from those smaller and seasonal bodies of water can still have a significant impact on the health of larger water systems.

Those scientific findings, although they are not reflected in the administration’s policy, could still play a role in the fate of the new rule. Several state attorneys general are expected to join with environmental groups to sue to overturn the Trump water rule, and those groups are likely to cite those findings as evidence that the rule is not legally sound.

“The legal standing all has to do with whether you have a rational basis for what you’re doing,” said Mr. Parenteau. “And when you have experts saying you’re not adhering to the science, that’s not rational, it’s arbitrary.”

Backpacking The Canyon

Written by Lauren Barnum: Director of Partnerships 

We were halfway through our trip when we decided, over breakfast and a topo map, to completely change course: we were going to hike the Grand Canyon of the Tuolumne

Our adventure started 4 days earlier on the trailhead of the JMT. We’d scored last-minute Half Dome permits and, despite some unexpected route changes, were optimistic about getting to Tuolumne Meadows with enough time to explore different sections of the river in the days that remained. 

As we began this second half of our journey, I was giddy with excitement. We had arrived to “my” watershed, and I was eager to explore and experience the landscapes I work to protect from my desk. This was my first time in Tuolumne Meadows and would become my first descent into the Grand Canyon of the “T”.

The meadows were clearing out when we hopped on the trail: 6 miles until Glen Aulin and a few hours until sunset. I could hardly contain my excitement and knew that we’d have to hustle to make camp before dark. As the river picked up speed rushing toward Tuolumne Falls, I, too, was running to catch a glimpse of this gateway to the canyon before darkness fell.

When we arrived at the bridge crossing at the top of the falls, I was overcome with glee: something special was waiting just around the bend. 

My first glimpse of Tuolumne Falls evoked a feeling in me I can’t quite describe. It’s akin to the feeling you get when you finally find the puzzle piece you’ve been looking for. The one you thought maybe hadn’t been printed, fell out of the box or was eaten by the dog, but you find it and you click it into its place and a slow wave of satisfaction and completeness envelopes you – you’ve found it. 

I had finally found what the Tuolumne evokes in me: pure joy, renewal, and a sense of belonging. The days to come would be full of all three. 

After setting up camp in the starlight, we fell asleep to the gushing White Cascade. The next morning, we began our descent into the canyon, taking our time at Waterwheel Falls to feast our eyes upon the lavish display of aquatic theatrics. The heat of the day continued to build with each downward step we took. “I’m sure glad I’m not going the opposite direction,” I thought to myself, knowing full well that in a couple days’ time it would be our turn to hike out of the canyon, sweaty, heat-stricken, and forsaking the extra weight in my pack (did I really need to bring along that copy of My First Summer in the Sierra?).

The descent continued with spectacular views of the canyon as we traversed the river-adjacent trail. We passed one last solo hiker before dropping into solitude and didn’t see another soul on the trail for two days. Those two days were full of all the reasons I believe we venture out into nature. The palpable quiet, pure water and potent sunshine helped me connect deeply with myself and everything around me. Not only was my spirit rejuvenated, but my reverence for this place, this river, multiplied. 

The magic of the Tuolumne doesn’t just lie in the way it changes color depending on how the light hits it, the way it gracefully fluctuates between raging rapids and majestic waterfalls to meandering currents and still shallows, nor the way it carves granite so old you can hear the whispered stories of the canyon if you stop long enough to listen. 

It’s the feeling of being a part of something so much bigger than myself. It’s a reminder that we are supported by nature’s systems in quantifiable and simultaneously indescribable ways. It’s a reminder that we need nature, and nature needs us.  

I know many of you have found joy in its waters, thrills on its rapids, and peace along its banks. Just like you, I find refuge in the Tuolumne. It is my hope that you’ll take time this season to slow down and appreciate what’s important to you, whether that be the Tuolumne, time with loved ones, or a little bit of both. If you feel inspired to give back and support our work to protect this magical place, I invite you to send in a contribution today.