On his first day in office, January 20, 2021, President Biden issued an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  In that Order, the President stated that “the Federal Government must be guided by the best science and be protected by processes that ensure the integrity of Federal decision-making.”  He went on to direct all federal agencies to address federal actions during the prior four years that conflict with that objective.  In an accompanying list of agency actions for review, the President identified precisely two biological opinions that his Administration would review to determine if they were “guided by the best science” and adopted in a manner and using processes that would “ensure the integrity of Federal decision-making.” The two biological opinions are the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) Biological Opinions on Long Term Operation of the Central Valley Project (CVP) and the State Water Project (SWP). Those biological opinions authorize continued operations of California’s two largest water projects, which supply water to some 25 million Californians and irrigate more than three million acres of farmland while proscribing actions to limit the impacts of those operations on protected fish species, including delta smelt, Central Valley spring run Chinook salmon, Sacramento River winter run Chinook salmon, steelhead, and green sturgeon.

More than eight months later, on September 30, the Bureau of Reclamation sent a letter to FWS and NMFS requesting reinitiation of consultation on those two biological opinions. Reintiation of consultation provides the opportunity for the federal wildlife agencies to take a new look at the effects of an action and the measures intended to limit its adverse effects on protected species. In requesting reinitiation Reclamation stated that until “new Biological Opinions are issued, and National Environmental Policy Act requirements are completed, the CVP will continue to operate pursuant to the existing consultation and Record of Decision as modified by interim measures, if any, as required by ongoing drought conditions or as ordered in conjunction with any ongoing litigation.”  The commitment to continue to operate under the existing biological opinions with their accompanying minimization and mitigation actions, which were prepared over multiple years, consistent with the procedural requirements of the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA), and subjected to independent scientific review, on its face appears to reflect the President’s priorities of action “guided by the best science” and adopted in a manner and using processes that “ensure the integrity of Federal decision-making.” While the policy preference of the Biden Administration to move beyond the Trump-era biological opinions is clear in the Executive Order, its adherence to obligatory legal and procedural requirements, even when they are inconvenient, would demonstrate to all stakeholders the current Administration’s respect for the rule of law, including transparent decision-making and even-handed application of regulatory requirements.

 

Before any changes to water project operations can be implemented, Reclamation should first consult with FWS and NMFS to analyze the effects of the proposed changes in operations on listed species. Further, consistent with the requirements of the Water Infrastructure Improvements for the Nation Act (WIIN Act), Reclamation is obliged to engage with water agencies that contract for water from the CVP or SWP in the course of that consultation. The “effects analysis” is at the heart of the consultation requirement and should be carried out in using a structured, stepwise process. That process uses reliable knowledge on the population dynamics and ecological requirements of the targeted species to inform conceptual and quantitative models that, in turn, allow the federal agencies to undertake risk assessments that specify the adverse effects of water project operations on protected species and identify management actions that can reduce or offset those adverse effects. In addition, prevailing professional practices and the commitment to be “guided by the best science” dictate that the both the FWS and NMFS effects analyses should be subjected to rigorous independent scientific review before being adopted. Those steps will not insulate federal agency determinations from criticism, but they will improve the quality of those determinations. They will also lead to more effective, efficient, and durable conservation outcomes.

 

There is a risk that officials in the Biden Administration, who may perceive legal and procedural requirements as obstacles to their preferred policy outcomes, will seek to circumvent such requirements. They might do so by requesting approval from the federal district court that is reviewing the pending lawsuits regarding the biological opinions to authorize proposed changes in water project operations absent compliance with the ESA, NEPA, and the WIIN Act. But in our system of government, which is based on the separation of powers among the three branches, the courts are not positioned to short-circuit duly enacted requirements of federal environmental law. Certainly, the adversarial legal process is no substitute for the substantive procedural requirements under federal law, particularly where the highly technical arenas of water project operations and wildlife management converge. 


It will soon become clear what path the Administration intends to pursue. Hopefully, science, sound public policy, and the rule of law will win out over political expedience.

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