California WaterBlog

By Karrigan Börk

Editor’s note: This is the second in a two-part series of blogs that examines how the incoming Trump Administration may—or may not—be able to change how water is managed in California.  The first blog covered three issues: the Sustainable Groundwater Management Act (SGMA), updates of the Bay-Delta Water Quality Plans, and major infrastructure projects. The short (and somewhat surprising) conclusion is that California will likely be able to continue many of its current water policies in these three areas, with marginal changes. This blog examines how the new administration may impact three additional areas: operation of the two large water projects in the state, potential changes in bedrock principles governing water management, and indirect impacts of the new administration. 

1. Central Valley Project (CVP) & State Water Project (SWP) Operations 

The CVP (run by the BoR) and the SWP (run by the California Department of Water Resources (DWR)) are the two largest water projects in California. The two projects rely on a Coordinated Operations Agreement (COA) to be more efficient, protect water quality, and to reduce environmental impacts. The operation of the two projects imperils protected species, including the winter run Chinook and the Delta smelt. Because the CVP is a federal project, approval of the COA requires compliance with a host of federal laws, like the National Environmental Policy Act (requiring analysis of the environmental impacts of federal actions) and the Endangered Species Act (requiring that federal actions not jeopardize the continued existence of a protected species). DWR must also comply with the California Endangered Species Act (CESA). The state believes that BoR also comply with CESA, although that question is in litigation at the moment.  

The COA has been a political football and in a constant state of litigation for the last two decades, with much of the attention focused on federal Biological Opinions (BiOps): the documents that determine whether the projects are complying the ESA. After a challenge to the 2004 BiOps, the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) released new BiOps in 2008/2009.  In response to a 2016 request for change to the COA, FWS and NMFS developed new BiOps in 2019, which allowed BoR to start operating under a revised COA in 2020. The state and many other groups filed suit, and the projects have been operating on an interim agreement approved by the court for the last three years while the Biden administration developed revisions to the COA and wrote new BiOps; USFWS and NMFS have recently released their new BiOps, but they are unlikely to resolve the existing lawsuits.

CVP/SWP operations have been a political target for President-elect Trump, who has expressed animosity for the Delta smelt and promised increased water deliveries from the CVP, and had recently tried to tie the Delta smelt to the fires in Los Angeles, although there is no link between the issues. His campaign promises this cycle mirrored his promises from his 2016 campaign, and he delivered on those 2016 promises with the changes to CVP operations in 2020. It is very likely that the second Trump administration will once again reopen the COA and write new BiOps, although that process will take several years and will almost certainly encounter more litigation. This is going to be one of the more contentious water issues for the next four years.

However, in spite of the concern expressed for the CVP/SWP operations, the changes will likely be fairly marginal. In 2020, the new COA supported by the first Trump administration resulted in increases in deliveries to San Joaquin fruit growers of only 5%. The operational plans currently under review by the Biden administration would also only make small changes in the amount of water entering and leaving the Delta, largely following historical patterns of water use. In fact, government review shows that the new plans are worse for species in some years than those implemented by the Trump administration in 2020. Regardless of who has been in charge, the fundamentals of the projects have largely stayed the same, in part because hydrology and outflow to ensure freshwater for human use in the Delta have much more of an influence on the projects ability to deliver water than the current ESA protections. 

As we and others have noted, much of the outflow often labeled as “environmental flow” is actually required for salinity control in the Delta, to keep the water there usable for drinking and irrigation. This might be more accurately termed “system water,” in that it allows the Delta system to stay fresh for human use.  As the PPIC has shown, the amount of system water required for salinity control dwarfs that required to meet environmental regulations. Even with no protection for the Delta ecosystem, only an average of about 12% of inflows would be freed up for other uses, and much less in drought years. As reported in Politico, advocates for more agricultural water use recognize these underlying truthsand have sought to temper expectations of the coming administration. 

The CVP/SWP will remain a contentious topic during the next Trump administration, sucking up more much attention, time and energy. But ultimately, given the constraints on the system, fundamental changes in operations are unlikely. 

2. Some Important Unknowns: Disaster Funds and Changes to Bedrock Principles.

Most of this analysis assumes that, as in the first Trump administration, most foundational principles of environmental law will remain in place. Even with a unified Republican government from 2017-2019, the major environmental laws, like NEPA, the ESA, and the CWA and Clean Air Act remained unchanged. Nevertheless, it is possible we could see fundamental changes in these laws, with major impacts across the country. The first Trump administration did rewrite regulations for nearly all of those laws, but, as noted, many of those efforts failed in court. It’s likely this second Trump administration will once again write new implementing regulations for many of those laws, and how successful those efforts are in court will determine the significance of those efforts.  

It is worth considering two other ways that the second Trump administration might fundamentally rearrange aspects of California water.  

As widely reported, in September, President Trump threatened to withhold federal disaster funds that California relies on for fighting fires if the state does not cooperate with his water policies.  This threat presumably extends to all federal disaster aid, including recovery from floods and earthquakes, and some politicians have again floated this idea in the context of the current fire disaster in Los Angeles.  Presidents and their administrations do have the power to stop or delay disaster funds, although they rarely do (the first Trump administration did delay $20 billion in disaster aid to Puerto Rico after Hurricane Maria in 2017). If President Trump were to follow through on this threat, it could be very difficult for the state to stay the course on its water policy, although such a gambit would likely be opposed by Trump-aligned California Representatives in Congress. It remains unclear how this will play out.

Second, targeted legislation could change the bedrock principles that have long governed water policy. There have been legislative efforts to strip power from the State Water Board and to force operation of the CVP and SWP in particular ways. If that legislation were to pass, it would affect CVP/SWP operations and perhaps the Bay-Delta Water Quality Plan. It is worth emphasizing that this would be a fundamental change in authority over water rights, from the state to the federal government, which might engender opposition from many western states. Both the Reclamation Act of 1902, the Central Valley Project Improvement Act, and the Clean Water Act, for example, had to include protections for state authority over water rights to appease concerned Senators from the western states. A targeted law aimed at California might escape such concerns, but the politics are very difficult to parse. There have also been some calls for the federal government to privatize or otherwise divest itself of the Central Valley Project, but that seems a remote possibility.

3. Indirect Impacts of the New Administration.

Beyond what might be considered “pure” water issues, the second Trump administration will have many indirect impacts on California water issues, through changes to climate policy and by tying up state and other resources in conflicts with the federal government on water policy and other issues. Consider, for example, the time and energy dedicated to refuting the President-elect’s false statements about Delta smelt and the Los Angeles fires. 

The Trump administration will roll back many of the Biden administration’s efforts to address the climate crisis, and it will try to make California efforts to address climate as difficult as possible. Climate change is transforming California’s water landscape, and continued delays will make those impacts much, much worse. 

California’s Indigenous Peoples have become a force in California water policy over the last decade. From the historic dam removals on the Klamath to the reintroduction of winter run Chinook above Shasta Dam to the many successful land back efforts, the California’s Indigenous Peoples are changing the state’s approach to water. The state, with the federal Environmental Protection Agency (EPA) support, is also beginning to incorporate Indigenous concerns in its water quality efforts by including tribal beneficial uses among those protected by water quality standards, which has the potential to force significant reallocation of water. This progress comes from a combination of social, political, and legal pressure on the state. Some of these efforts by Indigenous Communities will be harder to pursue under a Trump administration, particularly with state attention turned to conflict with the federal.

Finally, we are in the midst of a Salmon Crisis. The commercial and recreational seasons have been closed for the last two years, and a third year of closure seems likely based on current returns. For California, resisting President Trump’s environmental policies will not be enough to prevent extinctions and protect the state’s waterways. Moreover, conflict between the state and the federal government will take time and resources, which will make it more difficult for the state to focus on addressing the Salmon Crisis.

Conclusion

This analysis suggests California water policy is unlikely to go through seismic shifts over the next four years, under the incoming Trump Administration, but big changes cannot be ruled out. That prediction relies on some assumptions and a willingness of the state to take on Trump administration policies, the way it did during the last Trump administration. But even in that case, we will likely see significant indirect impacts on California water issues, as conflict with the federal government diverts time and resources from climate change, indigenous issues, and other environmental challenges. 

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UC Davis Acting Professor of Law Karrigan Börk’s publications run the gamut from the definitive text on the history and application of California minimum streamflow requirements to a hatchery and genetic management plan for the reintroduction of spring-run Chinook salmon in the San Joaquin River. Professor Börk graduated with Distinction and Pro Bono Distinction from Stanford Law School in 2009 and completed his Ph.D. dissertation in Ecology at UC Davis in September 2011. His current work focuses on Western water law.