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Administration Memo Cuts Basin Salmon BiOp Schedule by One Year, Trims Regs for Water Projects by Staff Columbia Basin Bulletin, October 26, 2018

Some see the memo, which actually has little directive power, as pre-election politicking.

A Presidential memorandum released Friday, October 19, directs federal agencies to reduce regulations at West Coast dams, including water projects in California, the Klamath River and federal dams in the Columbia River basin.

One of President Donald J. Trump's directives that is included in the memo is to move up by one year the completion of an environmental impact statement and biological opinion for salmon and steelhead that traverse the federal Columbia River power system's eight Columbia and Snake river dams.

In his May 2016 remand of the 2014 FCRPS BiOp, U.S. District Court Judge Michael H. Simon directed NOAA Fisheries, the Bonneville Power Administration, the Bureau of Reclamation and the U.S. Army Corps of Engineers to complete the EIS and BiOp with a Record of Decision by September 2021. The Trump memo moves up the finish date for the EIS/BiOp to 2020.

Simon's rejection of the 2014 BiOp was the fifth time a federal judge has rejected an FCRPS BiOp in a hydroelectric system that impacts thirteen species of salmon and steelhead listed as endangered or threatened under the federal Endangered Species Act. Previous challenged BiOps were in 2000, 2004, 2008 and a supplemental BiOp in 2010.

Even while on a schedule to complete a BiOp in 2021, NOAA Fisheries recently said it needs to also complete a BiOp by the end of this year to meet National Environmental Policy Act requirements for salmon and steelhead protections. NOAA had said in May the incidental take coverage for operation of the system expires at the end of 2018 and to ensure ESA compliance, it needs to complete a BiOp this year.

In addition, Simon ordered in April 2017 more spring spill at the lower Snake and lower Columbia river dams but delayed the action until 2018 while federal agencies completed a spill plan for the dams.

The memo (Promoting the Reliable Supply and Delivery of Water in the West), directs the secretaries of Commerce and Interior to "address water infrastructure challenges in the western United States."

"Decades of uncoordinated, piecemeal regulatory actions have diminished the ability of our Federal infrastructure … to deliver water and power in an efficient, cost effective way," the memo says.

"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," it says. "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."

For the Columbia River basin, the memo directs the secretaries of the Interior, Commerce, Energy and the Assistant Secretary of the Army for Civil Works under the direction of the Secretary of the Army, to develop a schedule to complete the FCRPS BiOp 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," it says.

U.S. Representatives Cathy McMorris Rodgers (R-WA-5th District) and Rep. Dan Newhouse (R-WA- 4th District), applauded the Presidential memo, saying it brings certainty to the Columbia and Snake river systems.

"I've led on legislation to protect the Columbia and Snake River System and encourage widespread collaboration in our region," said McMorris Rodgers. "Dams and fish coexist, and after more than two decades in the courtroom, we should let scientists, not judges, manage our river systems and get to work to further improve fish recovery efforts. Today, I'm encouraged by President Trump's action, which also meets those goals."

"While the Senate fails to act on our House-passed legislation to restore the collaborative framework that operates the Columbia and Snake River Power System, I am grateful to President Trump for speeding up this ongoing process," said Newhouse. "Moving up the deadline for the EIS is a procedural win that will give more certainty to the communities whose livelihoods depend on effective operations of our dams."

Others see the memo, which actually has little directive power, as pre-election politicking.

"The recent announcement from the President looks more like bad politics than good policy," said Save Our Wild Salmon executive director Joseph Bogaard. "The fact remains that real solutions to the problems facing our communities and endangered salmon in the Northwest will only be resolved when people work together on shared solutions to common problems. Unfortunately, the recent announcement from the White House makes this kind of collaboration less likely rather than more likely."

The memo also directs Commerce and Interior to identify projects in California for which the agencies hold joint responsibility for Endangered Species Act "to facilitate the designation of one official to coordinate the agencies' ESA and NEPA compliance responsibilities." NEPA is the National Environmental Policy Act.

It also gave the designated official 30 days to 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."

The memo defined "burden" to mean "unnecessarily obstruct, delay, curtail, impede, or otherwise impose significant costs on the permitting, utilization, transmission, delivery, or supply of water resources and infrastructure."

The Oct. 15 presidential memorandum is here.

In their joint news release, McMorris Rodgers and Newhouse said the BiOp overturned by Simon "has helped to produce record fish returns through use of modern, innovative technology, and has widespread support in the region. Unfortunately, a U.S. District judge overturned the BiOp in 2016, throwing out sound science and dictating new river operations from behind the bench--including maximum "spill" levels over the dams. The judge's anti-science court order has thrown the river system's operations into disarray and forced uncertainty upon the Bonneville Power Administration's (BPA) ability to manage the power transmission system."

The joint news release by McMorris Rogers and Newhouse is here.

Related Pages:
NOAA Says It Must Complete New Salmon/Steelhead BiOp In 2018 To Ensure ESA Compliance by Staff, Columbia Basin Bulletin, 6/1/18
Judge Gives Feds Nearly Five Years To Complete NEPA Process For New Basin Salmon/Steelhead Recovery by Staff, Columbia Basin Bulletin, 7/15/16
Court Ordered Spring Spill For Fish Begins On Four Lower Columbia River Dams by Staff, Columbia Basin Bulletin, 4/13/18

Related Sites:
Court-Ordered Spill Completed In June; Corps Sends Judge Last Of Three Reports Detailing Operations by Staff, Columbia Basin Bulletin, 7/27/18
Corps' Second Spill Report To Court Details Impacts Of High Flows, Involuntary Spill In May by Staff, Columbia Basin Bulletin, 6/29/18
NOAA Fisheries Delivers First Court-Ordered Spring Spill For Fish Report; Shows Complex Operations by Staff, Columbia Basin Bulletin, 6/8/18
New Court-Ordered Spill Regime Based On Dissolved Gas Caps Begins This Week by Staff, Columbia Basin Bulletin, 4/6/18
Federal Court Again Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By 2018 by Staff, Columbia Basin Bulletin, 5/6/16

MEMORANDUM FOR THE SECRETARY OF THE INTERIOR
THE SECRETARY OF COMMERCE
THE SECRETARY OF ENERGY
THE SECRETARY OF THE ARMY
THE CHAIR OF THE COUNCIL ON ENVIRONMENTAL QUALITY

Subject: 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