1) This two-pager CRS Insight report by Pervaze A. Sheikh and Charles V. Stern was updated on 9 November 2018: The Trump Administration Directives on Western Water.
I added the graphics - they are not from these reports.
Here is the entire text. This versiondoes not contain all the hot links so you might want to read the online version - click here.
On October 19, 2018, the Trump Administration released a Presidential Memorandum directing federal agencies to address regulations that burden federal water projects in California and complete biological opinions under theEndangered Species Act (ESA; 16 U.S.C. §§1531 et seq.) for specific federal water projects in the western United States. Affected projects include the California Central Valley Project (CVP), the Klamath Irrigation Project in Oregon, and the Columbia River Basin water system in the Pacific Northwest. The White House memorandum does not carry the force of law nor is it a federal regulation. Rather, it serves as a directive to federal agencies for these projects. Congressional interest in the directive arises from both specific interest in these projects and broader interest in managing water conveyance systems in the West and addressing their regulatory policies. This insight covers specific projects or water systems addressed by the memorandum.
California Water and the CVP
The CVP is a large water supply project in northern and central California operated by the Bureau of Reclamation (Reclamation), an agency in the Department of the Interior (DOI). The CVP's service area extends over a distance of approximately 400 miles in central California. The project delivers more than 7 million acre-feet of water per year, on average, to support irrigated agriculture, municipalities, and species, and is operated jointly with the State Water Project (SWP; owned and operated by the State of California). Water deliveries from the CVP and SWP are regulated through a series of laws and regulations. Biological Opinions (BiOps) issued under ESA and state water quality standards issued under the Clean Water Act are two primary factors affecting how much water can be delivered to users. BiOps addressing the CVP and SWP were issued in 2008 for Delta smelt by the U.S. Fish and Wildlife Service (FWS, in DOI) and, in 2009, by the National Marine Fisheries Service (NMFS, in the Department of Commerce) for salmon.
The White House memorandum directs the Secretary of the Interior and the Secretary of Commerce (Secretaries) to identify water infrastructure projects in California for which both Secretaries have responsibility for under ESA and the National Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.). For each project, the Secretaries are to jointly
designate one official who, within 30 days, is to identify regulations or procedures that burden the project. The agencies are also to develop a plan to "appropriately suspend, revise, or rescind regulations or procedures that burden the project beyond the degree needed to protect the public interest or comply with the law." Public interest is not defined or discussed in the memorandum, but burden is defined as "to unnecessarily obstruct, delay, curtail, impede, or otherwise impose significant costs on the permitting, utilization, transmission, delivery, or supply of water resources and infrastructure."
The memorandum further directs the Secretaries to develop a timeline for completing the environmental compliance requirements for the identified projects within 40 days.
In addition, the memorandum also directs the Secretaries to ensure that the review of the long-term coordinated operations of the Central Valley Project and California State Water Project (OCAP) is completed with an updated operations plan and issued Record of Decision. The memorandum directs the biological assessment of OCAP to be completed before January 31, 2019, and a final BiOp to be issued within 135 days of January 31, 2019.
These directives follow a memo, issued by Secretary Zinke on August 17, 2018, soliciting ideas from federal agency staff on how to address California water issues. The Secretary directed staff to develop a plan of action to maximize water supply deliveries, incorporate best science into real-time decision making, streamline ESA and NEPA processes, construct new storage for water, resolve issues with OCAP and other joint state and federal projects, and improve coordination between FWS and NMFS, among other actions.
Other Western Projects Addressed
The White House memorandum also directs the Secretaries to complete a joint consultation on the Klamath Irrigation Project by March 2019 and develop a schedule to complete the Columbia River System Operations Environmental Impact Statement and associated BiOps by 2020.
The Klamath Project is a federal irrigation project in Oregon owned and operated by Reclamation; it provides irrigation water for an estimated 1,400 farms in the Klamath River Basin. The current BiOps regulate water flows to the Klamath Project to provide more water to endangered fish.
The Columbia River Basin produces hydropower and regulates water flows through 31 federal dams owned and operated by the U.S. Army Corps of Engineers and Reclamation. The basin supports 13 listed fish species or distinct populations (salmon and trout species). Basin dams have blocked fish passage in much of the basin, and hydropower generation leads to fish mortality due to fish passing through turbines. The current BiOp for the Columbia River dates to 2014. Court rulings have altered the system BiOps over time, and efforts are underway to create a new BiOp (a judge allowed NMFS until 2021 to finish the new document).
Potential Congressional Interest
Some in Congress are interested in the White House memorandum because it shows the intent and direction of the Administration for implementing laws associated with western water. The policies in the directive could result in expediting (and in some cases altering) the implementation of key laws governing the management of water supplies in the West. Some who support this approach contend that the direction to federal agencies will result in improved access to and certainty for water supplies, along with streamlining regulatory processes. Some critical of the memorandum contend that it could lower environmental standards for these projects and affect listed species. They contend that it might set a precedent for species affected by other projects. The effect of the memorandum's directive will depend on its implementation. For example, how the Administration applies the definition of burden to regulations or procedures when addressing the CVP, to what extent new BiOps for these projects alter existing requirements for environmental protection, and how regulatory processes will be streamlined, will largely determine how transformative the regulations will be.
2) And here is the Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water in the West:
MEMORANDUM FOR THE SECRETARY OF THE INTERIOR
THE SECRETARY OF COMMERC
THE SECRETARY OF ENERGY
THE SECRETARY OF THE ARMY
THE CHAIR OF THE COUNCIL ON ENVIRONMENTAL QUALITYSubject: Promoting the Reliable Supply and Delivery of Water in the West
By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Section 1. Policy. During the 20th Century, the Federal Government invested enormous resources in water infrastructure throughout the western United States to reduce flood risks to communities; to provide reliable water supplies for farms, families, businesses, and fish and wildlife; and to generate dependable hydropower. Decades of uncoordinated, piecemeal regulatory actions have diminished the ability of our Federal infrastructure, however, to deliver water and power in an efficient, cost‑effective way.
Unless addressed, fragmented regulation of water infrastructure will continue to produce inefficiencies, unnecessary burdens, and conflict among the Federal Government, States, tribes, and local public agencies that deliver water to their citizenry. To meet these challenges, the Secretary of the Interior and the Secretary of Commerce should, to the extent permitted by law, work together to minimize unnecessary regulatory burdens and foster more efficient decision-making so that water projects are better able to meet the demands of their authorized purposes.
Sec. 2. Streamlining Western Water Infrastructure Regulatory Processes and Removing Unnecessary Burdens. To address water infrastructure challenges in the western United States, the Secretary of the Interior and the Secretary of Commerce shall undertake the following actions:
(a) Within 30 days of the date of this memorandum, the Secretary of the Interior and the Secretary of Commerce shall:
(i) identify major water infrastructure projects in California for which the Department of the Interior and the Department of Commerce have joint responsibility under the Endangered Species Act of 1973 (ESA) (Public Law 93-205) or individual responsibilities under the National Environmental Policy Act of 1969 (NEPA) (Public Law 91-190); and
(ii) for each such project, work together to facilitate the designation of one official to coordinate the agencies’ ESA and NEPA compliance responsibilities. Within the 30-day time period provided by this subsection, the designated official shall also identify regulations and procedures that potentially burden the project and develop a proposed plan, for consideration by the Secretaries, to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden the project beyond the degree necessary to protect the public interest or otherwise comply with the law. For purposes of this memorandum, “burden” means to unnecessarily obstruct, delay, curtail, impede, or otherwise impose significant costs on the permitting, utilization, transmission, delivery, or supply of water resources and infrastructure.
(b) Within 40 days of the date of this memorandum, the Secretary of the Interior and the Secretary of Commerce shall develop a timeline for completing applicable environmental compliance requirements for projects identified under section 2(a)(i) of this memorandum. Environmental compliance requirements shall be completed as expeditiously as possible, and in accordance with applicable law.
(c) To the maximum extent practicable and consistent with applicable law, including the authorities granted to the Secretary of the Interior and the Secretary of Commerce under the Water Infrastructure Improvements for the Nation Act (Public Law 114-322):
(i) The Secretary of the Interior and the Secretary of Commerce shall ensure that the ongoing review of the long-term coordinated operations of the Central Valley Project and the California State Water Project is completed and an updated Plan of Operations and Record of Decision is issued.
(ii) The Secretary of the Interior shall issue final biological assessments for the long-term coordinated operations of the Central Valley Project and the California State Water Project not later than January 31, 2019.
(iii) The Secretary of the Interior and the Secretary of Commerce shall ensure the issuance of their respective final biological opinions for the long-term coordinated operations of the Central Valley Project and the California State Water Project within 135 days of the deadline provided in section 2(c)(ii) of this memorandum. To the extent practicable and consistent with law, these shall be joint opinions.
(iv) The Secretary of the Interior and the Secretary of Commerce shall complete the joint consultation presently underway for the Klamath Irrigation Project by August 2019.
(d) The Secretary of the Interior and the Secretary of Commerce shall provide monthly updates to the Chair of the Council on Environmental Quality and other components of the Executive Office of the President, as appropriate, regarding progress in meeting the established timelines.
Sec. 3. Improve Forecasts of Water Availability. To facilitate greater use of forecast-based management and use of authorities and capabilities provided by the Weather Research and Forecasting Innovation Act of 2017 (Public Law 115-25) and other applicable laws, the Secretary of the Interior and the Secretary of Commerce shall convene water experts and resource managers to develop an action plan to improve the information and modeling capabilities related to water availability and water infrastructure projects. The action plan shall be completed by January 2019 and submitted to the Chair of the Council on Environmental Quality.
Sec. 4. Improving Use of Technology to Increase Water Reliability. To the maximum extent practicable, and pursuant to the Reclamation Wastewater and Groundwater Study and Facilities Act (Public Law 102-575, title XVI), the Water Desalination Act of 1996 (Public Law 104-298), and other applicable laws, the Secretary of the Interior shall direct appropriate bureaus to promote the expanded use of technology for improving the accuracy and reliability of water and power deliveries. This promotion of expanded use should include:
(a) investment in technology and reduction of regulatory burdens to enable broader scale deployment of desalination technology;
(b) investment in technology and reduction of regulatory burdens to enable broader scale use of recycled water; and
(c) investment in programs that promote and encourage innovation, research, and development of technology that improve water management, using best available science through real-time monitoring of wildlife and water deliveries.
Sec. 5. Consideration of Locally Developed Plans in Hydroelectric Projects Licensing. To the extent the Secretary of the Interior and the Secretary of Commerce participate in Federal Energy Regulatory Commission licensing activities for hydroelectric projects, and to the extent permitted by law, the Secretaries shall give appropriate consideration to any relevant information available to them in locally developed plans, where consistent with the best available information.
Sec. 6. Streamlining Regulatory Processes and Removing Unnecessary Burdens on the Columbia River Basin Water Infrastructure. In order to address water and hydropower operations challenges in the Columbia River Basin, the Secretary of the Interior, the Secretary of Commerce, the Secretary of Energy, and the Assistant Secretary of the Army for Civil Works under the direction of the Secretary of the Army, shall develop a schedule to complete the Columbia River System Operations Environmental Impact Statement and the associated Biological Opinion due by 2020. The schedule shall be submitted to the Chair of the Council on Environmental Quality within 60 days of the date of this memorandum.
Sec. 7. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.
DONALD J. TRUMP 19 October 2018
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“In the West, when you touch water, you touch everything.” – Wayne N. Aspinall
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