Biden admin set to ditch Trump's Calif. irrigation policy

July 01, 2021

The Interior Department appears ready to reverse an eleventh-hour Trump administration policy that would slash bills that California irrigators must pay for environmental restoration, according to documents obtained by E&E News.

Former Interior Secretary David Bernhardt signed the policy on Jan. 19 — a day before President Biden's inauguration — that said restoration and mitigation requirements for the massive federal project that delivers water from wet Northern California to farms in its arid south had been "completed."

Consequently, the amount of money that the contractors who get that water had to pay into a "restoration fund" would be cut dramatically.

The policy would save irrigators — including the politically powerful Westlands Water District, a former Bernhardt client — at least $15 million and potentially much more.

Bernhardt said in an email to E&E News "the determination I made is firmly grounded in the text of the act and the factual record."

Congressional Democrats, conservationists and a Native American tribe say the decision would have major consequences, depriving a salmon fishery in Northern California desperately needed and, they argue, legally required mitigation funds. There is no way the restoration requirements have been met, they argue.

Now, the Biden administration appears to be reevaluating the policy, although it has not taken a public stance on the issue.

"This legal conclusion fails to support the fish and wildlife protection and restoration purposes expressed" in a relevant law, Daniel Cordalis, Interior's deputy solicitor for water resources, wrote in a June 11 memo.

He added that the previous memo's determination "is significant because if all the restoration activities are deemed complete, the Secretary must reduce the sums collected from water and power contractors that fund ... restoration activities."

Cordalis said he is "rescinding it" due to lack of coordination with the Fish and Wildlife Service and "for being a potential impediment to achieving the purposes of" the 1992 Central Valley Project Improvement Act, or CVPIA.

Cordalis then cited one of Biden's first executive orders on environmental issues and climate change, arguing the previous policy is inconsistent with it.

The previous determination, he said, "expressly rejected consideration of whether an ongoing restoration program was, and had the ability to continue, making progress toward its intended outcome."

Instead, it only looked at whether the program had been started, Cordalis wrote.

Bernhardt's memo concurred with the findings of Interior's solicitor's office and assistant secretaries who essentially concluded that many of the restoration requirements could be deemed "complete" for purposes of the law once they were established.

In an email, Bernhardt sharply criticized Cordalis' memo, saying Biden's political appointees were overruling nonpolitical career officials who penned the legal policy he signed.

"Given the request to take this action by political allies of the administration," he wrote, "this withdrawal reeks of politics, and undermines the work of the career attorneys within the Office of the Solicitor."

'Big, fat thumb on the scale'

At issue is a complicated provision of a law that was intended to boost environmental restoration for the Bureau of Reclamation's Central Valley Project in Northern California.

The sprawling infrastructure project spans 400 miles and shuttles water south from Northern California through a network of dams, canals and aqueducts. It delivers irrigation water to contractors, including some of the country's most productive farms in the San Joaquin Valley.

It had massive environmental impacts, particularly in Northern California, where Reclamation operates two large dams, Shasta and Trinity. Those dams threatened salmon runs upon which tribes like the Hoopa Valley have relied upon for millennia.

Consequently, Congress in 1992 passed the CVPIA, which expressly made environmental issues and mitigation part of the Central Valley Project's mission.

It included a provision that required water contractors to pay as much as $30 million into a restoration fund for wildlife mitigation and other measures. That "ceiling" could not be lowered unless some key environmental objectives were met.

The Bernhardt policy effectively did that, sparking criticism from the Hoopa Valley Tribe and Democratic lawmakers.

California Rep. Jared Huffman (D), who represents the area, wrote a letter with fellow California Democratic Rep. Katie Porter to Interior Secretary Deb Haaland blasting the memo and calling on Haaland to address it.

"The Trump administration memorandum inaccurately asserts that these required actions are largely complete," they wrote in the May 7 letter.

Huffman and Porter said the restoration requirements are not met, and cutting the fund ceiling by 50% would "not only delay the completion of the CVPIA's restoration and mitigation objectives, it could render achieving some of them impossible, and result in further degraded habitat and fish and wildlife species viability across California."

Huffman, in an interview after sending the letter, accused Bernhardt of doing Westlands' bidding.

"The obvious context to this is we had an administration that for four years had a big, fat thumb on the scale for the Westlands Water District at every turn," he said. "It's just stunning, really."

Huffman said yesterday he is "fully supportive of the decision to rescind" the Bernhardt memo.

The Hoopa Valley Tribe applauded the new memo from Cordalis and the Biden administration, but there remain concerns about whether the administration will fully rescind the policy.

"This is such welcome news," Hoopa Vice Chair Everett Colegrove said in a statement. "We understand the vast responsibilities of the Secretary's office, and the time it took for her to deal with this issue, which is so important to us."

Still, the status of the policy remains in limbo. Cordalis' memo only rescinds the legal underpinnings of the Bernhardt policy. Advocates for the tribe are pressing for a formal "completion" memo signed by Haaland that rescinds the Bernhardt document.

They noted that Haaland publicly announced signing such completion memos in April that rescinded a number of Trump administration polices related to water in Northern California.

Interior and Reclamation did not respond to questions about whether similar completion memos are in the works following Cordalis' legal opinion. They also didn't respond to a question regarding whether it views environmental mitigation measures under the CVPIA to be met.

"The Bureau of Reclamation recognizes the importance of fish and wildlife decisions and associated impacts that come with the Central Valley Project Improvement Act implementation," spokesman Rob Manning said in an email. "We remain committed to collaborating with our federal partners and all stakeholders on future CVPIA activities."


By:  Jeremy P. Jacobs and Michael Doyle
Source: E&E News