Attorney General Becerrra and Governor Newsom file lawsuit against Trump water plan

But Newsom continues on path of voluntary agreements, Delta Tunnel and more water diversions

SACRAMENTO – One day after they vowed to sue President Donald Trump over his signing of revised biological opinions in Bakersfield yesterday, California Attorney General Xavier Becerra, the California Natural Resources Agency, and the California Environmental Protection Agency on Thursday evening 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 operations lack 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,” according to a press release from Becerra’s Office. 

Fishermen, tribal leaders, conservationists and environmental justice advocates had been pressuring the Newsom Administration to file the litigation after Governor Gavin Newsom last November said he would sue over the “Trump Salmon Extinction Plan,” as Caleen Sisk, Chief of the Winnemem Wintu Tribe, calls it. You can read Chief Sisk’s analysis of the biological opinions here:  http://www.dailykos.com/...

Many were worried that Newsom was not going to file the lawsuit in an effort to bring “peace” in the California water wars, under pressure from the powerful Westlands Water District and other San Joaquin Valley agribusiness interests.  

Governor Newsom cited the controversial “enforceable voluntary agreements,” not the revised biological opinions, as the “best path forward” for both endangered species and providing “dependable water sources.” 

“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 Newsom Administration is currently promoting these controversial “enforceable voluntary agreements,” the Delta Tunnel and a “water portfolio” that would increase Delta water deliveries to agribusiness and Southern California water agencies. Fish and Delta advocates say these processes would hasten the extinction of Sacramento winter and spring-run Chinook salmon, Delta and longfin smelt, Central Valley steelhead, green sturgeon and other fish species, along with imperiling salmon and steelhead populations on the Trinity and Klamath rivers.

AG Becerra cited the “unprecedented threat of a climate emergency” in his statement on the lawsuit.

“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.

The lawsuit challenges the actions of the Bureau of Reclamation, the federal agency that adopted the biological opinions, according to Becerra’s Office. 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 Becerra said “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,” according to Becerra’s Office.

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

In addition to filing the 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

Salmon and Delta advocates were encouraged by the filing of the lawsuit so quickly, since many had feared that Newsom was caving into the Trump administration water plan prior to Trump’s visit to California, but they urged the Governor to back down from the voluntary settlements, plans to build new dams and a Department of Water Resources (DWR) plan that would increase water exports.

“Thank you, Gavin Newsom,” said Regina Chichizola, co-director of Save California Salmon, in a tweet responding to the filing. “Now we need you to stand strong for Tribes, fishermen and the North State and back down from prioritizing new reservoirs and diversions that would dewater our rivers #WaterIsLife.” 

In a statement, Barbara Barrigan-Parrilla, Executive Director of Restore the Delta, praised Becerrra for filing the lawsuit against the biological opinions:

“On behalf of Delta fishing, farming, and environmental justice communities we're are deeply grateful to AG Becerra for your continued role in protecting the San Francisco Bay-Delta estuary and California’s waterways. You are truly a champion. Thank you!"

John McManus, president of the Golden State Salmon Association, thanked Newsom for joining the lawsuit, but asked him to order the Department of Water Resources to rework its permit application under state law to pump Delta water.

“Fishermen and women, and the tens of thousands working in the salmon industry throughout California, especially in rural areas, are very grateful to Attorney General Xavier Becerra for his bold action to support our salmon runs, our industry and overall ecological health of the Central Valley, the Delta and San Francisco Bay," said McManus. "We thank Governor Newsom for the legal challenge and ask that he order the Department of Water Resources to rework its permit application under state law to pump Delta water so it too is protective of our salmon runs and the overall environment. This needs to be done in accordance with the best science which clearly says that more, not less, wildlife protections are needed.”

Trump’s Interior Secretary David Bernhardt, a former Westlands Water District and oil industry lobbyist that fish advocates believe developed the revised biological opinions as a favor to his former clients, responded by saying that Newsom and Becerra “just launched a ship into a sea of unpredictable administrative and legal challenges regarding the most complex water operations in the country.”

“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,” said Bernhardt. “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.”

Winnemem Wintu Chief Caleen Sisk strongly disputes Bernhardt’s contention that the Trump administration “did a great job using the best available science” on the biological opinions.

“The new Trump water diversions intensify federal government attacks on the Winnemem Wintu Tribe’s existence. Just like the Keystone XL pipeline at Standing Rock.  The Trump Biological Opinion brings on an intentional salmon extinction plan and is detrimental to all Tribes and waters depending on Salmon,” she said.

“The Trump salmon extinction plan would end the current legal requirement to return salmon to our river, set the stage for the raising of Shasta Dam, which would flood more of our tribe’s sacred sites, give the federal Bureau of Reclamation permission to kill off our salmon below Shasta Dam, and allow the Bureau to kill even more salmon in the Delta.  It would also divert and pump more water from the Trinity River, which supports salmon and tribes in the Trinity/Klamath River system,” she concluded.

Photo courtesy of the Department of Interior.