On October 19, 2018, President Trump issued a “Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water in the West” in an effort to streamline the environmental review for major water infrastructure projects.  The memorandum indicates the administration’s priority on completing comprehensive environmental review processes currently underway in the next year, as well as prioritizing the completion of environmental review for other major California water projects in development and planning phases.

The presidential memorandum provides specific directions to the Secretary of the Interior, who oversees the U.S. Bureau of Reclamation (Reclamation) and U.S. Fish and Wildlife Service (USFWS), and the Secretary of Commerce, who oversees the National Marine Fisheries Service (NMFS).  Based on this direction, the Secretaries must identify “major water infrastructure projects in California” for which they have compliance responsibilities under the federal Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).  Then, for each identified project, the Secretaries must designate one official to coordinate the agencies’ environmental review responsibilities and to identify regulations and procedures that potentially “burden” the project and that could possibly be revised or suspended while otherwise complying with law.

The presidential memorandum also provides timelines for specific ongoing consultations for major California reclamation projects.  In August of 2016, in response to multiple drought years and new information on the status of Delta smelt and winter-run Chinook salmon, Reclamation reinitiated the ESA section 7 consultations with USFWS and NMFS on the Coordinated Long-Term Operation of the Central Valley Project and State Water Project (known as the “OCAP” consultation).  The agencies have been engaged in this reinitiated consultation ever since, conducting stakeholder meetings and planning the scope of the different “tracks” for the consultation.  The agencies had previously estimated that the final biological assessment for the programmatic phase of the consultation would be released in June of 2019.  The presidential memorandum now directs the Secretary of the Interior to issue a final biological assessment for the OCAP consultation no later than January 31, 2019.  Following the biological assessment, the Secretaries are directed to issue the final biological opinions within 135 days of the deadline for the biological assessment, or June 15, 2019.

Klamath Project operations are also prescribed by ESA requirements for listed coho salmon and two sucker species.  Reclamation reinitiated the ESA section 7 consultation with NMFS on Klamath Project operations in response to reported C. shasta infection rates of chinook salmon during 2014 and 2015 being greater than those anticipated in a 2013 biological opinion.  Due to court challenges from two Klamath basin tribes and environmental plaintiffs regarding the timeliness of Reclamation’s reinitiated consultation under these circumstances, the District Court for the Northern District of California issued an injunction requiring flushing flows and dilution flows pending the completion of the reinitiated consultation.  The Klamath Project currently operates according to the requirements of the 2013 biological opinion supplemented by the injunction.  The presidential memorandum directs the Secretary of the Interior and the Secretary of Commerce to complete the consultation for the Klamath Project by August 2019.  As a practical matter, the agencies now seek to conclude the consultation before the 2019 irrigation season.

For other major infrastructure projects identified according to the procedures described above, the presidential memorandum instructs the Secretaries to establish respective timelines for completing ESA and NEPA review of the identified water infrastructure projects within 40 days of the date of the memorandum.

For more information on the potential implications of the presidential memorandum, please contact Brittany K. Johnson at bjohnson@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.