[Cross-posted from California WaterBlog]

By Karrigan Börk, Peter Moyle, John Durand, T-C Hung, and Andrew L. Rypel

2020 was a bad year for delta smelt. No smelt were found in the standard fish sampling programs (fall midwater trawl, summer townet survey). Surveys designed specifically to catch smelt (Spring Kodiak Trawl, Enhanced Delta Smelt Monitoring Program) caught just two of them despite many long hours of sampling. The program to net adult delta smelt for captive brood stock caught just one smelt in over 151 tries. All signs point to the Delta smelt as disappearing from the wild this year, or, perhaps, 2022.

In case you had forgotten, the Delta smelt is an attractive, translucent little fish that eats plankton, has a one-year life cycle, and smells like cucumbers. It was listed as a threatened species in 1993 and has continued to decline since then. Former President Trump made it notorious when he called it a “certain little tiny fish” that was costing farmers millions of gallons of water (not true, of course).

As part of the permitting process for Delta water infrastructure, the USFWS issued a Biological Opinion (BO), written by biologists, that found that increased export of water from the big pumps of the State Water Project and the Central Valley Project would further endanger the smelt. The BO was then revised by non-biologists to conclude that increased pumping would not hurt the smelt. The reason given was that large-scale habitat improvement efforts, plus the development of a facility for spawning and rearing of domesticated smelt, would save the species. We have written a short, fairly readable, article for a law journal that describes why the revised BO will not save the smelt. We will not write further about the paper in this blog but encourage readers to give the full article a read (it is a free download).

So, is this the year the smelt becomes extinct in the wild? Frankly, we are impressed by its resilience (see previous California WaterBlogs on smelt status) but small populations of endangered pelagic fish in large habitats tend to disappear, no matter what we do, partly the result of random events.

Looking for delta smelt

We trawl clear Delta water

And find emptiness.

[Cross-posted from Daily Journal]

By Richard M. Frank

It's been a long and dispiriting four years for the U.S. Environmental Protection Agency under President Donald Trump. There's a large measure of truth in the wry rebranding of the current agency by many observers as the anti-Environmental Protection Agency. The past four years have damaged considerably the stature and reputation of the EPA, a regulatory agency created 50 years ago by another Republican president, Richard Nixon.

President-elect Joe Biden has a unique opportunity to repair the integrity of a tarnished EPA and, more importantly, to reverse many of the misguided, unprincipled environmental policies and regulatory rollbacks the Trump administration's EPA has adopted in recent years. Here are some of the actions Biden and his newly announced EPA administrator, Michael Regan, can and should take to rehabilitate the agency's integrity and effectiveness:

Restore the EPA's traditional reliance on science in its decision-making. In the first months of the Trump administration, members of the EPA's respected Science Advisory Board were purged and replaced by individuals more politically malleable and ideologically aligned with the administration. The incoming Biden administration should quickly make personnel changes to the board that rehabilitate its integrity and traditional independent role. And that should be but the first important step in restoring sound science as a cornerstone of EPA regulatory policy.

Reestablish environmental enforcement as an EPA priority. Another cross-cutting issue on which the Biden administration should focus is environmental enforcement. Generally overlooked by the media but enormously consequential is the fact that over the past four years the Trump administration's EPA has largely turned its back on enforcing federal environmental statutes and regulations. The number of EPA-initiated enforcement proceedings has dropped precipitously over that period, as has the amount of fines and penalties collected by the agency for environmental violations. Even more cynically, in March the EPA issued a policy announcing that it would not enforce or seek penalties for noncompliance with environmental monitoring and reporting obligations -- citing the coronavirus epidemic. The Biden administration should waste no time in reversing the latter 2/4 enforcement moratorium and reestablishing environmental enforcement as an EPA priority. As President Abraham Lincoln once observed, "Without enforcement, laws are nothing more than good ideas." How true.

Restore California's ability to adopt its own, more stringent greenhouse gas emission standards for motor vehicles under the Clean Air Act. Perhaps no Trump administration environmental rollback has provoked more outrage from Californians than Trump's September 2019 announcement that he was revoking California's authority under the federal Clean Air Act to maintain its own greenhouse gas emission limits for motor vehicles -- limits more stringent than those national GHG standards imposed by the EPA. (Trump falsely tweeted that this revocation would make cars sold under the federal standard "far safer and much less expensive.") California Attorney General Xavier Becerra immediately filed suit challenging the revocation, and that litigation remains pending. But the Biden administration can quickly make the litigation moot by restoring California's independent authority to set its own GHG emission limits. In doing so, it would be déjà vu all over again: In 2008, former President George W. Bush similarly attempted to revoke California's statutory authority to establish its more aggressive vehicular GHG emission standards, only to have then-newly elected President Barack Obama reverse that decision and reinstate California's authority in the first months of his administration the following year. Biden should and likely will waste no time taking the same corrective action in early 2021. (Such a decision would have impact far beyond California's borders: The CAA expressly allows other states to "opt into" California's more stringent vehicle emission standards, and over a dozen states have done so; together with California, they represent over 40% of the U.S. motor vehicle market.)

Adopt a more balanced and protective "WOTUS" regulation under the Clean Water Act. For many years, the question of how to interpret and apply the jurisdictional limits of the federal Clean Water Act has bedeviled property owners, regulators and courts trying to determine what constitutes the "waters of the United States." No less a personage than U.S. Supreme Court Chief Justice John Roberts in 2006 urged the EPA to adopt a regulation clarifying the scope of federal regulatory authority under the CWA. After a decade of dithering, the EPA finally adopted such a regulation in 2018, in the waning days of the Obama administration. But that regulation never took effect, having been challenged by developers and property owners in court, and eventually renounced by the incoming Trump administration. Trump's EPA eventually replaced the Obama "WOTUS rule" with a far more circumscribed version, one leaving unprotected numerous wetlands and other ecologically sensitive resources. The Biden EPA should go back to the drawing board and replace the Trump WOTUS rule with one more protective of environmental values and resources.

Reverse the Trump administration's abysmal approach to (non-)regulation of toxic substances. Perhaps in no area of environmental regulation has the Trump EPA been so deficient as it has in its approach to regulation of toxic materials. It has attempted to roll back a number of toxic standards, ignored congressional mandates and deadlines to 3/4 promulgate others and, in the process, endangered public health. A particularly egregious example is the EPA's most recent regulatory misadventure: last week, the Trump administration issued a so-called "Lead and Copper Rule" that, if left in place, will delay remediation of aged lead pipes that currently deliver critical drinking water supplies to millions of Americans for up to three decades and, in some cases, indefinitely. The toxicity of antiquated, leaching lead pipes is well-known to doctors and public health officials, and is especially dangerous to children, the elderly and pregnant women. The Biden EPA should waste no time in revisiting the Trump EPA's Lead and Copper Rule, replacing it with a new regulation that is far more responsive to the urgent public health crisis presented by lead pipes that contaminate drinking water supplies. More broadly, the Biden administration should restore EPA regulation of toxic and hazardous materials to a top priority.

Make environmental justice a major focus of the Biden EPA. Presidential administrations before Trump's had given at least a nod and a wink to environmental justice concerns. The Trump administration, by contrast, has given environmental justice policies the back of its hand. The incoming Biden administration can and should make environmental justice a major theme and priority. Biden's EPA -- led by Administrator Regan, who currently leads the North Carolina Department of Environmental Quality -- is in a perfect position to do just that. Both Biden and Regan have stressed their commitment to making sure that the environmental and public health interests of minority, underserved and poor communities are prioritized by EPA and the federal government generally. (In fulfilling that commitment they would be wise to consult with environmental officials in California, which -- as in so many areas of environmental policy -- has led the nation when it comes to aggressively fostering environmental justice initiatives.)

Make climate change and GHG reduction the overarching focus of EPA environmental policy. The most encouraging environmental message from the incoming Biden administration to date is that it is committed to reversing the Trump administration's criminal neglect of national and international climate change concerns. Biden has assembled a broad-based climate change leadership team -- consisting of multiple cabinet members, former U.S. Senator and Secretary of State John Kerry, former EPA Administrator Gina McCarthy and others -- to engage on climate change issues both at home and abroad. That makes eminently good sense. Biden's EPA has a major role to play in meeting this overarching challenge, and the early signals are promising that it will.

Adopt a multifaceted strategy to revoke and replace Trump administration's antienvironmental policies comprehensively and swiftly. There's a great deal that the incoming Biden administration can do to neuter and reverse the innumerable environmental rollbacks the Trump administration has attempted. One of Trump's most egregious strategic errors has been his efforts to regulate by executive order rather than through the Administrative Procedure Act's formal rulemaking process. In many cases, courts have invalidated those legally flawed executive orders, leaving in place preexisting environmental standards; those orders that remain on the books can be revoked by new executive orders Biden should adopt 4/4 in the first weeks of his administration. In other instances, Trump's EPA has attempted to adopt "interim" or "non-final" regulations; they can similarly be nullified quickly by the incoming administration. Finally -- and most consequentially -- the state of California has led a broad coalition of other states and environmental organizations in bringing court challenges to virtually every regulation the Trump EPA has adopted to roll back federal environmental standards. Most of those cases remain pending. The Biden administration, led by the Justice Department and the EPA, should attempt to negotiate settlements of those lawsuits that incorporate the Biden administration's renunciation of the misguided Trump regulatory rollbacks. In many cases, that will be the most efficient and expeditious way to invalidate the pernicious, anti-environmental policies promulgated by the Trump administration over the past four years.

The EPA has been battered, bruised and besmirched over the past four years under the Trump administration. A great many reforms will be required to repair the damage to the agency, the nation's environment and the public interest. Those reforms cannot and will not occur overnight. But the corrective measures summarized above -- some already embraced by the incoming Biden administration -- should go a long way towards restoring the EPA's historic stature and, more importantly, protecting the nation's environment and public health. Here's wishing President-elect Biden and Administrator-designee Regan the very best of luck in doing so.

[Cross-posted from California WaterBlog]

By Thomas Harter, Steph Tai and Karrigan Börk

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges.  In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to issue permits for pollutant discharges into groundwater or to nonpoint source dischargers.

In April, the Supreme Court decided on a case involving discharge from a wastewater reclamation facility owned and operated by the County of Maui.  In this case, the facility discharged 3 to 5 million gallons of treated wastewater per day into four injection wells about half a mile from the ocean.  Recent research showed that much of the injected waste eventually discharges to the ocean. Environmental groups sued the county for not obtaining a CWA permit, arguing that point source discharge of pollutants that eventually reach surface water is governed under CWA. All sides agreed that the case at hand involved a point source of pollutant discharge and that the pollution eventually reached the ocean. The disagreement was whether the CWA requires the permit only if the pollutant discharge is directly into surface water, as argued by the defendants (a “bright-line test”). Environmental groups argued that even if the pollutant discharge is via groundwater to surface water, the CWA permit must be obtained. The district court and the Ninth Circuit court ruled in favor of the plaintiffs. The Ninth Circuit court held that permits are required when “pollutants are fairly traceable” from the point source to surface water.

In its final 6-3 decision, the Supreme Court majority now rejects both sides’ arguments as too extreme and returned the case to the lower courts with further guidance.  On the “bright-line test”, Justice Breyer, writing for the majority, wrote “we do not see how Congress could have intended to create such a large and obvious loop hole in one of the key regulatory innovations of the Clean Water Act.”  On the “fairly traceable” approach, the opinion stated that such interpretation “would require a permit in surprising, even bizarre circumstances.”

Instead, the Court decision introduces the concept of a “functional equivalent of a direct discharge” as a guideline for when a point source discharge must obtain a permit. It cites the case of an injection well receiving pollutant discharge that then travels a few feet through groundwater into navigable waters as a clear case of “functional equivalent” to direct discharge. But it rejects the notion that such a “functional equivalent” exists in a case with “100 year migration of pollutants through 250 miles of groundwater to a river” and “likely does not apply” if “the pipe ends 50 miles from navigable waters”. The Court acknowledges that the concept of “functional equivalence” as the Court’s guideline leaves many point source discharges to groundwater somewhere between these extreme cases.  It relegates consideration of those cases back to regulators and lower courts, suggesting they consider the various groundwater flow and transport factors underlying individual cases – travel time and distance in particular, but also soils and geology, geochemical reactions, the locations where pollutants subsequently enter navigable waters, and “the degree to which the pollution (at that point) has maintained its specific identity.”

Importantly, the majority opinion does not expect a “vastly” expanded scope of the CWA, such that permits would be required, e.g., for the country’s 20 million septic systems. It does so in two ways: by emphasizing (and affirming) the long history of CWA implementation, which has, at times, required permits even if pollutant discharge was via groundwater into surface waters, but not under other circumstances. And, secondly, both the majority and dissenting opinions repeatedly underscore the important role and sovereignty of states in regulating discharges to groundwater and nonpoint source pollution (groundwater pollutant discharge to surface water is sometimes considered nonpoint source pollution of surface water).

The decision will not make it easier than in the past for either regulators or lower courts to make their determinations as to whether a point source pollutant discharge to groundwater that eventually affects surface water is subject to a CWA permit. But the decision sides squarely with the use of science. And it shows a remarkable acknowledgement of hydrologic sciences and the interconnectedness of surface water and groundwater: “Virtually all water, polluted or not, eventually make its way to navigable water. This is as true for groundwater.” Perhaps this statement missed the nuance that some groundwater, particularly in the western U.S., will instead be pumped by wells onto crops or pulled by plant roots from the water table to be evapotranspired into the atmosphere. But it underscores that the court made its decision knowing and applying hydrologic science. “Given the power of modern science, The Ninth Circuit’s limitation, ‘fairly traceable’, may well allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release […] and in highly diluted forms.”, an application that the justices find inconsistent with the CWA.

The dissenting opinion of Justice Alito rejects the introduction of the “functional equivalence” concept as too vague and inconsistent with the language of CWA.  Given the authorities of states on matters of groundwater and nonpoint source pollution, he supports the “bright-line test”.  But importantly, Justice Alito instead refers to the definition of “point source” as a means to avoid the loopholes cited in the majority opinion as reason to reject the “bright-line test”:  He points out that, according to CWA, “point source[s] include [….] ‘any discernible, confined and discrete conveyance… from which pollutants … may be discharged.’ §1362(14).” The opinion continues to describe how the pathway created by pollutant discharge from a pipe onto a beach and ending in the ocean” or many of the cases that trouble the Court” would easily be covered by applying common definitions of “conveyance”, “discernable”, and “confined”.  Groundwater hydrologists may further point out something not mentioned and perhaps not considered by Justice Alito: that we do have scientific tools (as referred to by the majority opinion) to similarly describe some groundwater pathways as a conveyance that is indeed discernable and confined, “i.e., held within bounds”.  So perhaps Justice Alito’s argument, from a scientific perspective, would in practice not be substantively different from the scientific criteria that the majority opinion associated with defining “functional equivalent” point source discharge. Such an interpretation would add further support and a consistent angle to the overall spirit of the Court’s decision.

The Maui decision is already having a ripple effect in other areas of environmental concern.  Environmentalists have long been advocating against the use of coal ash impoundments—open pits for disposal of toxic byproducts left over from burning coal.  Many of these byproducts have allegedly moved from these impoundments through groundwater into streams and rivers.  Prior to the decision in Maui, power companies argued the CWA permitting program was inapplicable to impoundments.  But the Maui decision will likely lend weight to these challenges.

The Maui decision also will likely impact litigation over the federal administration’s repeal of the Water of the United States rule, a regulation under the Obama administration which clarified the views of the Environmental Protection Agency and the U.S. Army Corps of Engineers about the reach of the Clean Water Act.  In this repeal, this administration specifically stated, in response to commenters, that “A groundwater or subsurface connection could also be confusing and difficult to implement, including in the determination of whether a subsurface connection exists and to what extent.” U.S. Army Corps of Engineers and Environmental Protection Agency, The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States,” 85 Fed. Reg. 22,250, 22,313 (Apr. 21, 2020).  Promulgated by the agencies before the Maui decision came out, the agencies will likely have to wrestle with the Maui decision in subsequent challenges.

While the decision leaves some previous uncertainty over the interpretation of the CWA, and perhaps adds some, California dischargers are unlikely to face additional regulation under this decision. Under the Porter-Cologne Water Quality Control Act, California already requires permits for discharges to groundwater, even if they don’t meet the “functional equivalent” test outlined by Justice Breyer’s majority opinion. California regulators may need to adjust their approach to reflect that some of these permits will also serve as CWA permits under the state’s authority, but this should not impose significant new burdens on regulated entities. California’s robust implementation of a strong groundwater quality regulatory program, implementing state laws (including the Sustainable Groundwater Management Act, SGMA) and other federal laws governing discharge of pollutants to groundwater (Safe Drinking Water Act, Toxic Substances Control Act, Resources Conservation and Recovery Act, state and federal Superfund programs) puts it in an excellent position to have little to worry about a new layer of bureaucracy and restrictions.

The decision’s reliance on strong groundwater science marks another significant step in the emerging integration of groundwater and surface water. The California courts and legislature have long regarded surface water and groundwater as legally distinct, but over the last decade that legal fiction has begun to break down. In 2014, SGMA explicitly recognized the relationship between groundwater and surface water, requiring groundwater managers to avoid significant and unreasonable adverse impacts on beneficial uses of surface water. In 2018, a California appellate court ruled that the public doctrine applies to groundwater extraction if it adversely impacts a navigable waterway. This decision validates the hard work of water scientists working to protect critical freshwater systems in the context of integrated watershed and water resources management, including efforts to protect many of these freshwater resources that depend on high quality groundwater discharge. And it reminds us to keep hard at working to achieve the larger vision of the Clean Water Act.

Thomas Harter is a professor of Hydrologic Sciences and a Cooperative Extension Groundwater Specialist at the University of California, Davis.  He is currently acting director of the UC Davis Center for Watershed Sciences and Chair of the Hydrologic Sciences Graduate Group

Steph Tai is a professor of law at the University of Wisconsin Law School.  Their research focuses on areas of science, risk, and environmental and food regulation.

[Cross-posted from CalMatters]

By Richard M. Frank

Re “Why State Water Contractors sued California over restrictions on water deliveries”; Commentary, April 30

When Jennifer Pierre of the State Water Contractors announced the end of negotiations to develop so-called “voluntary agreements” to protect the declining Bay-Delta ecosystem, it was the latest in a flurry of similar statements, including a State Water Contractors press release and a letter from the Metropolitan Water District of Southern California. The Metropolitan Water District went further, endorsing the Trump administration’s controversial new Endangered Species Act Bay-Delta biological opinions.

The debate over Bay-Delta flows represents one of California’s most longstanding and heated water conflicts.  The prospect of a negotiated solution had led to requests for the State Water Resources Control Board to delay regulatory action to update flow standards.  

State law requires the board to protect all aspects of the Bay-Delta estuary, including wildlife habitat, fishing, drinking water quality and more.  For more than 20 years, the health of that ecosystem has declined steadily and dramatically, triggering salmon fishing closures, growing risk of species extinctions and increased harmful algae blooms.  

A careful review by the water board concluded that additional ecosystem flows are required.  Yet for five years, the board has been waiting for a voluntary agreement to produce consensus flow standards.  The board has waited long enough.  

Federal law requires the board to review its current, 25-year old Bay-Delta Plan every three years.  Yet the latest, still-incomplete board review has taken 12 years.  No voluntary agreement has been forthcoming, and water users have now terminated negotiations.  

A scientifically credible, negotiated agreement involving flow standards and habitat restoration would be desirable.  Unfortunately, no such agreement is even on the horizon.  So the board should exercise its undisputed regulatory authority to finalize and implement new Bay-Delta flow requirements.  

At the moment, water users understandably suspect that the board may continue its regulatory delay – providing little incentive for them to negotiate.  But if the board demonstrates that it will act in the absence of an agreement, that will incentivize water users to commit additional water, funding and habitat restoration in future negotiations.  The importance of such a credible regulatory backstop has been well established in past key water agreements.

The board need not choose between voluntary agreements and the traditional standard-setting approach under state law.   By moving forward now to finalize and implement new flow requirements, the board could breathe new life into stalled negotiations.  To do otherwise risks both ecosystem collapse and the board’s reputation.  

[Cross-posted from CaliforniaWaterBlog]

By Karrigan Börk, Andrew L. Rypel and Peter Moyle

Science-based decision making is key to improved conservation management and a legal mandate in the US Endangered Species Act.  Thus supporters of federal efforts to increase water exports from the Central Valley Project (CVP) and State Water Project (SWP) have claimed that these efforts are based on new science. Yet unpacking those claims requires some legal analysis, a basic understanding of science, and more than a little nuanced reading.

First, some background. For a review of federal efforts to increase Delta exports, and the recent biological opinions (BiOps) released by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) approving those efforts, please see this earlier blog post. California has elected to sue the federal government over the recent BiOps, and, at the same time, California is proceeding with its own analysis of plans to change the operation of the SWP. Finally, the State Water Resources Control Board (SWRCB) is updating the state’s Bay Delta Plan, which addresses water quality and quantity in the Delta. The SWRCB has adopted a new plan for the San Joaquin River watershed, and is in the process of adopting a plan for the Sacramento River watershed. However, adoption and implementation efforts appear to be on hold while the Newsom Administration attempts to negotiate voluntary agreements with water users and environmental groups. The voluntary agreements might ultimately replace (or be integrated into) a comprehensive Bay Delta Plan update. There are many moving parts, but one thing tying all these efforts together is the proponents’ claim that their approach is mandated by the best science.

Supporters of the federal plan in particular seek to wrap the effort in the mantle of science. On the media call for the roll out of the new BiOps, Paul Souza, Regional Director for US Fish and Wildlife Service cited “tremendous new science now that we didn’t have a decade ago.” On the same call, Ernest Conant, Regional Director of the Mid-Pacific Region of the Bureau of Reclamation, argued that the new approach was “infused with new scientific information.” U.S. Rep. Kevin McCarthy, R-Bakersfield, told Fox News “this president has worked greatly using science, not based on politics but on science, to allow to have more of that water stay with the Californians and America.” Finally, during his remarks to Rural Stakeholders on California Water Accessibility in Bakersfield, CA, President Trump argued that the old plan was based on “old science, obsolete studies, and overbearing regulations that had not been updated in many, many years, and sometimes for decades,” promising that the new federal plans “use the latest science and most advanced technology.” The science drumbeat has played a central role in this media blitz.

The rationale for this approach is easy to understand. Policy makers frequently cloak political decisions in a scientific framework; in policy circles, this is known as the science charade (Adler 2017; Wagner 1995). The science charade lets political leaders avoid responsibility for unpopular decisions – they’re just following the science, not making hard decisions based on their own ethical considerations (Doremus 1997). The science charade also lets decision makers minimize public input on policy decisions – why should the uninformed public have a say in technical decisions (Adler 2017)? Scientists themselves sometimes embrace this approach because it affords them a measure of control over policy decisions (Adler 2017). The courts only reinforce the science charade – they are very reticent to overturn federal agency decisions that claim to be based on science, rather than policy preferences (Clark 2009).

This approach is not limited to supporters of the federal plans; everyone claims that science is on their side. But the current federal roll out is uniquely focused on claiming that new science justifies increased water exports from the Delta. Moreover, NMFS brought in new scientists to rewrite their draft BiOp last summer, after the first draft concluded the federal pumping plan was likely to drive species to extinction. This suggests some skepticism about NMFS’s claims to rely on “new science.”

Natural resource sciences are unique compared to many fields (e.g., physics). For example, the best natural resource science normally involves understanding not only the organisms of interest, but also the dynamics of their complicated ecosystems, which in turn are typically controlled by people. Indeed, most scientists are trained to view natural resource management quite broadly, e.g., as the intersection of organisms, habitat and people (Nielson 1999). Each aspect is critical and affects the other two, and managing with all three in mind presents opportunities for enhancing natural resources overall. However, management frequently goes awry when a disproportionate focus is placed on only one aspect of the problem (Sass et al. 2017). The science charade preys on the misconception that these spheres should be disconnected, suggesting we can somehow separate organisms and ecosystems from the decisions people make.

The US Endangered Species Act explicitly requires that federal decisions consider the best available science. For example, 16 U.S. Code § 1536(a)(2) requires that “each agency shall use the best scientific and commercial data available” when preparing biological opinions under the Act.  This is, objectively, the right approach. Bad science leads to bad decisions. But this mandate also encourages the cloaking of policy preferences as scientific mandates (Adler 2017). Consider three aspects of the current political struggle over Delta water.

First, the roll out for the new biological opinions treats existing science as old and obsolete, claiming it is no longer the best available science. But science is not milk. It doesn’t just go bad. New science can illuminate, and the state of the art sometimes changes over time, but older science is not inherently wrong or less valuable. Science grows by building on existing ideas and knowledge, not by rejecting it outright. As Isaac Newton famously wrote, “If I have seen a little further, it is by standing on the shoulders of giants.” For example, the 2010 report “Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem” found that flow standards aimed solely at protecting fish populations in the Delta would require 75% of the unimpaired flow in the Sacramento and San Joaquin watersheds. Certainly, other water needs mean that the Delta will not get these flows, but simply dismissing this report as old science is inherently flawed.

Second, to the extent that new science requires new approaches in the Delta, existing new science indicates that restoration of the Delta will require more water to be left in the Delta, not less. The 2017 Scientific Basis Report for the SWRCB Bay Delta Plan effort noted that additional flows into the Delta, and decreased exports of water from the Delta, always benefits native biota, provided that temperature, timing, and quality targets were met. Zero new science shows that native fishes and most other native organisms in the Delta can survive on less water.  Keep in mind that the Delta is one of the best studied estuarine ecosystems in the world, with continuous major research producing new and improved understanding of the ecosystem (i.e. science).

Third and finally, the new science claims in the biological opinions seem to focus on emerging approaches that might reconcile water use with ecosystem needs based on real time monitoring and habitat improvements. But immediate claims that this new science allows greater water exports from the Delta hides key policy decisions on acceptable extinction risks.

For example, the real time “Enhanced Delta Smelt Monitoring (EDSM)” program is supposed to allow managers to reduce pumping from the Delta when monitoring detects smelt in the area around the pumps, thus keeping smelt from being sucked into the pumps. But smelt populations are currently too low to detect, and a January 2018 independent scientific review concluded, “it is difficult to see how the EDSM currently can be used to inform water operations in near real time.” The review encouraged FWS to attempt to validate this approach, but the BiOps offer no such validation. Using this approach without showing that it works places all risk of failure on the Delta Smelt, and ultimately risks their extinction. This is a policy decision, not new science standing alone.

Similarly, the BiOps indicate habitat improvements will reduce the need for water in the Delta. As prior blog posts here have noted, better habitat improves salmon growth, which may improve salmon survivorship. Better habitat also may allow managers to reconcile human uses of the landscape with ecosystem needs. Could this approach allow managers to achieve ecosystem and species recovery targets with less water? It seems unlikely, but the BiOps depend on habitat improvement to make up for increased water exports. Even if this approach could work, it would require that suitable habitat improvements be in place before water exports increase. But most improvements mandated in the last round of BiOps are merely proposed, not complete, and most ongoing improvement projects remain unfinished and untested.

The increased pumping anticipated in the BiOps would begin well before any improvements in species numbers would result from habitat improvement. This approach assumes that additional unspecified habitat will compensate for decreased water in the short term. Success would depend entirely on protected species being lucky enough to persist under current conditions but with less water. Suggesting that the decisions expressed in the BiOps are based solely on science masks this central policy calculus, which is never explicitly revealed. However, the benefits of such an approach to Delta water users are well-documented: there is less political accountability, less public input, and more deferential court review.

What’s the solution? There’s no magic bullet to stop the science charade, but using properly vetted (i.e., peer-reviewed) science literature and independent science reviews of new rulemakings can go a long way toward ensuring true science-based policies. California’s Delta Science Program, for example, relies on an independent review panel to provide objective feedback to policymakers. Adaptive management approaches that would increase ecosystem protections if new approaches fail would better allocate risk in uncertain situations. The science community itself must also watch and safeguard how policy makers use its work. It is not enough to simply conduct and publish scientific articles – not anymore. And courts asked to review decisions that touch on science must distinguish between scientific conclusions and policy decisions that are cloaked as science.

In the near term, California agencies may soon face this challenge head on. First, as noted above, the California Department of Water Resources (DWR) is preparing an environmental analysis of its own plans to change the operation of the Delta pumps. DWR has proposed a plan that embraces some of the same approaches to science used by the federal plan. Comments from the California Department of Fish and Wildlife (CDFW) and the SWRCB to DWR have raised these concerns, but it is not yet clear how the DWR will respond and whether CDFW will ultimately grant DWR the permits it needs to proceed on the terms DWR has proposed.

Second, the SWRCB will have to approve any voluntary agreements that are developed for the Delta. The Newsom Administration is pushing hard for a suite of voluntary agreements to benefit the Delta ecosystem while also meeting water user needs. The benefits of successful voluntary agreements are tantalizing: an infusion of private funding, improved habitat, improved ecosystems, and continued availability of needed water, all done faster and with fewer lawsuits. But any agreements must ultimately comply with state environmental law, and the SWRCB will make the first determination as to whether the science supports whatever voluntary agreements the Administration can develop. The voluntary agreements appear to rely on the same habitat-for-water hopes that undergird the BiOps, and the agreements would lock in the water withdrawals before regulators know if the habitat improvements actually work. A safer approach would be to improve the habitat, and then conduct scientific studies to see if listed species actually benefit before withdrawing additional water. Failing that, the agreements should at least provide for water use reductions as a fail safe if species declines continue despite the new habitats. The best available science recognizes that nature is sometimes unpredictable and science is sometimes misread or just wrong. It requires contingency plans.

If the Administration succeeds in developing a set of voluntary agreements, and as DWR concludes its environmental analysis, look for the media blitz to emphasize that science supports their approach. It will fall to the state regulatory agencies to determine whether they are truly supported by science, or merely by a science charade. 

Further Reading

Jonathan H. Adler, The Science Charade in Species Conservation, 24 Sup. Ct. Econ. Rev. 109, 116 (2017).

Sara. A. Clark, Taking a Hard Look at Agency Science: Can the Courts Ever Succeed?, 36 Ecol.L.Q., 317 (2009).

Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 Wash. U. L.Q. 1029, 1038 (1997)

Carson Jeffres, Frolicking fat floodplain fish feeding furiously, June 2, 2011.

Peter Moyle, Jeff Opperman, Amber Manfree, Eric Larson, and Joan Florshiem, Floodplains in California’s Future, Sept. 10, 2017.

Peter Moyle, Karrigan Börk, John Durand, Tien-Chieh Hung, and Andrew Rypel, Futures for Delta Smelt, Dec. 15, 2019.

Larry A. Nielsen, History of Inland Fisheries Management in North America in Inland Fisheries Management, 2nd Ed. 3 (Christopher C. Kohler and Wayne A. Hubert eds., 1999).

Greg G. Sass, Andrew L. Rypel, and Joshua D. Stafford, Inland Fisheries Habitat Management: Lessons Learned from Wildlife Ecology and a Proposal For Change, 42 Fisheries 197 (2017).

Wendy Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995).

[Cross-posted from California WaterBlog]

By Karrigan Bork

Co-authored with Peter Moyle, John Durand, Tien-Chieh Hung and Andrew Rypel

A recent biological opinion (BiOp) released by the U.S. Fish and Wildlife Service (FWS) concluded that a proposed  re-operation of California’s largest water projects will avoid driving the federally threatened Delta smelt to extinction. The plan proposes increasing water exports from the Central Valley Project and State Water Project, which will reduce water available for ecosystems and local uses. Both projects move water through pumps in the California Delta, a productive but sensitive ecosystem and home to the Delta smelt.

Under the federal Endangered Species Act (ESA), the FWS reviews federal agency actions to ensure that they will not drive listed species into extinction. In 2009, FWS reviewed the operation of the state and federal pumps that export water from the Delta and concluded in a BiOp that operation of the massive pumps jeopardizes the smelt’s continued existence. FWS required reduced pumping and other measures to protect the smelt, and those measure are currently in effect.

In 2019, the FWS again reviewed this new plan for the pump operations and concluded that many of the 2009 protections were actually not necessary and that the pumps could export significantly more water without jeopardizing the smelt. It draws this conclusion in two ways. First, the opinion notes that “recent abundance trends strongly suggest [the smelt] is in the midst of demographic collapse” and will likely go extinct without intervention. Based on this existing trajectory, the opinion concludes it won’t be the project’s fault when smelt disappear. Second, the opinion implies that, because agencies will spend $1.5 billion on habitat restoration, a production hatchery for smelt, and other measures, the net effect for the smelt will be positive. Based on these considerations, FWS concluded that the new operation plan would not drive the smelt to extinction, although it acknowledges extinction might happen anyway.

But the BiOp considers a very narrow question. The BiOp does not consider whether the plan is likely to improve the smelt’s status, and this BiOp in particular constrains its analysis so it does not meaningfully consider what is likely to happen to the Delta smelt under the new plans.

So, moving away from the narrow BiOp and considering the smelt in a broader context, what is going to happen to smelt in the wild? Is extinction likely?  This essay explores some issues affecting Delta smelt and suggests possible futures. This blog is a short version of a longer white paper (with references) available at: https://watershed.ucdavis.edu/shed/lund/papers/FuturesForDeltaSmeltDecember2019.pdf.

The basic problem

The estuary where Delta smelt evolved no longer exists, and smelt are poorly adapted for the new conditions. Much of the water that once flowed through the estuary is stored or diverted upstream or exported by the south Delta pumps (Hobbs et al. 2017; Moyle et al. 2016, 2018). The smelt’s historical marsh habitats are now artificial channels and levees protecting agricultural islands. These hydrologic and physical changes make the Delta prone to invasion by non-native organisms, some of which disrupt food webs and confound restoration. Lower flows allow salts, toxic chemicals, and nutrients to accumulate. Harmful algae blooms occur regularly. As climate change further disrupts flows and increases temperatures, little historical habitat is left for sensitive species like smelt.

A tipping point

Smelt populations have probably been in gradual decline since at least the 1950s (Figure 1), but their population has collapsed since the 1980s, tracking the increase in water exports (Figure 2). This correlation is compelling, but other major system changes took place in the same period.  In the late 1980s, an invasive clam spread through the Delta, removing much of the smelt’s planktonic food supply. Concurrently, invasive weeds spread across the Delta, transforming former Delta smelt habitats into clear, food limited, lake-like environments. From 1969-89, the Delta tipped away from good smelt habitat to a novel ecosystem unfavorable to smelt.  This shift is practically irreversible, and the shift put the Delta smelt on a trajectory toward extinction as a wild fish. It is currently largely absent from surveys that once tracked its abundance.

Figure 1. Indices of Delta Smelt abundance in the Delta’s two longest-running fish sampling programs, the Summer Townet Survey (for juvenile smelt) and the Fall Midwater Trawl Survey (mostly pre-spawning subadults). Figure by Dylan Stompe.

Figure 2. Annual water export (left axis) from the south Delta by the State Water Project (red) and federal Central Valley Project (blue) in million acre-feet. Gray bars show droughts, when pumping was reduced primarily because of low inflows. Annual inflows of water to the Delta in million acre-feet (right axis) are open circles. Data: www.water.ca.gov/dayflow. Figure: Moyle et al. 2018 https://afspubs.onlinelibrary.wiley.com/doi/full/10.1002/fsh.10014

Is habitat restoration the answer?

The BiOp relies in part on habitat restoration under California’s EcoRestore and other programs to support flagging smelt populations. There is little guarantee that this will make much difference to smelt, although many other native species will benefit.

First, the area under restoration is insufficient. Delta smelt originally inhabited an area about the size of Rhode Island, moving opportunistically to find appropriate conditions. Because Delta smelt are migratory and pelagic, smelt will overlap with restoration sites only occasionally. Successful habitat restoration would have to include multiple sites adjacent to water corridors, with abundant food and cool water, and in areas suitable for both spawning and rearing. Instead, the restoration approach has been more opportunistic than strategic, with restoration often focused on wetlands with willing sellers, regardless of suitability. We have little working knowledge whether we can build, connect, and manage these sites to benefit smelt.

Second, some projects rely on the idea that just creating tidal wetlands will be sufficient. It will not. Most Delta restoration sites are vulnerable to invasion by non-native species, which can subvert habitat solutions. Successful restoration sites require intensive, continuous management to meet even minimum expectations of restored habitat, and there is little incentive to actively manage “natural” restoration sites.

Third, current smelt populations are too small to be able to see an immediate (annual) response to habitat changes alone. Whatever steps are taken to protect smelt may be too little too late.

Finally, while water users hope that restoration provides an alternative to water use, this is not realistic. Successful restoration requires water flowing across the landscape. Moving water promotes the exchange of nutrients, controls introduced species, distributes food production, and creates habitat structure. Flows help restorations mimic natural environments and improves their effectiveness. Flows give managers better control of where Delta smelt end up during the spring, summer and fall. Habitat with minimal outflow is an empty promise.

If we are serious about providing the outflow required for habitat for smelt and other fishes, a substantial environmental water right is needed to provide reliable water to interact with physical habitat to produce food and shelter. Allocation of a sufficient water right is difficult to envision, given the current conflicts in the Delta, but California’s Bay Delta Plan, currently under development, generally proposes significant water for Delta fish, based on a percentage of the rivers’ natural flows. If this water were treated as a right under the control of an ecosystem manager, Delta smelt might have a chance of more than extinction avoidance—they might recover.

Hatchery Smelt

The BiOp also relies on hatchery supplementation of wild stocks to mitigate smelt impacts. The UC Davis Fish Conservation and Culture Laboratory (FCCL) has maintained a genetically managed Delta smelt population since 2008, but low wild smelt numbers complicate its operation. FWS allows FCCL to incorporate 100 wild Delta smelt into its population annually, to maintain genetic diversity, but recently the FCCL has been unable to capture 100 individuals. Without those fish, inbreeding might rapidly increase and add further uncertainty to the success of supplementation.  Other hatchery supplementation programs, such as those for salmon, have had limited success in re-establishing self-sustaining wild populations. The smelt efforts will likely follow suit (Lessard et al. 2018).

Conclusions

Based on our experience and research in the Delta, any benefits from the habitat restoration and hatchery plans in the new opinion are too uncertain to reliably offset negative impacts of increased water exports. The Delta has changed so much that suitable habitat for Delta smelt is increasingly lacking. Large-scale restoration projects that provide habitat and food for smelt will at times need increased outflows.  Desperate measures such as a production smelt hatchery and establishment of smelt in reservoirs may provide a veneer of ‘saving’ smelt for a while, but they seem unlikely to prevent extinction in the long run. In short, the smelt are likely to continue on their extinction trajectory. The following seem the most likely alternative futures for Delta smelt, in rough order of likelihood:

1. Extinction of the wild population in 1-5 years, with a population of increasingly domesticated hatchery smelt kept for display and research purposes.
2. Persistence of a small wild population in a few limited intensively managed habitats, until these habitats cease being livable from global warming and other changes.
3. Global extinction after wild populations disappear and hatchery supplementation or replacement fails.
4. Replacement of the wild population with one of hatchery origin, continuously supplemented.
5. Persistence of wild populations as the result of supplementation and through establishment of reservoir populations.

The authors are at the University of California – Davis, Center for Watershed Sciences.

Further reading

Hobbs, J.A, P.B. Moyle, N. Fangue and R. E. Connon. 2017. Is extinction inevitable for Delta Smelt and Longfin Smelt? An opinion and recommendations for recovery.  San Francisco Estuary and Watershed Science 15 (2):  San Francisco Estuary and Watershed Science 15(2). jmie_sfews_35759. Retrieved from: http://escholarship.org/uc/item/2k06n13x

Lessard J., B. Cavallo, P. Anders, T. Sommer, B. Schreier, D. Gille, A. Schreier, A. Finger, T.-C. Hung, J. Hobbs, B. May, A. Schultz, O. Burgess and R. Clarke (2018) Considerations for the use of captive-reared delta smelt for species recovery and research, San Francisco Estuary and Watershed Science 16(3), article 3.

Moyle, P. B., L. R. Brown, J.R. Durand, and J.A. Hobbs. 2016. Delta Smelt: life history and decline of a once-abundant species in the San Francisco Estuary. San Francisco Estuary and Watershed Science14(2) http://escholarship.org/uc/item/09k9f76s

Moyle, P.B., J. A. Hobbs, and J. R. Durand. 2018.  Delta smelt and the politics of water in California. Fisheries 43:42-51.

Moyle, P.B., K. Bork, J. Durand, T-C Hung, and A. Rypel. 2019. “Futures for Delta Smelt”. Center for Watershed Sciences white paper, University of California – Davis, 15 December, https://watershed.ucdavis.edu/shed/lund/papers/FuturesForDeltaSmeltDecember2019.pdf

[Cross-posted from the Daily Journal]

By Richard M. Frank

Blatantly illegal. Vindictive. Retaliatory. Spiteful. Or, as California Gov. Gavin Newsom aptly described it, a "weaponization of the USEPA."
All these terms accurately characterize the Trump administration's recent action to eliminate the state of California's longstanding authority under the federal Clean Air Act to adopt auto emission standards for California that are
more stringent than the national standards set by the federal government.
That action is bad news not only for California, but also for the environment as well as the consumers and automobile industry that the Trump administration's action purports to aid.
California, other affected states and numerous environmental organizations have already filed lawsuits against Trump's Environmental Protection Agency, seeking judicial intervention to nullify the EPA's "waiver withdrawal." And it's likely that they'll prevail in that legal challenge.
To understand the current dispute, a bit of historical background is required. When Congress passed the Clean Air Act in 1970, it included a provision that generally preempts states from adopting their own tailpipe emission standards for cars and trucks. However, beginning in 1966 California was already adopting its own tailpipe emission standards to address severe air pollution problems those emissions were causing in the Golden State -- especially the Los Angeles metropolitan area. Recognizing that history and expertise, Congress expressly granted California -- and only California -- continuing authority to adopt its own, more stringent tailpipe emission standards under the CAA. State officials were required under Section 209(b) of the CAA to seek a "waiver" of the national standards each time California sought to adopt its more stringent tailpipe standards and, conversely, the same CAA provision gave the EPA very limited grounds upon which to deny California's waiver request.
Over the subsequent half-century, this congressional exercise of cooperative federalism generally worked smoothly and well. California sought and received over 100 separate waivers from the EPA to adopt its more stringent tailpipe standards to curb "conventional" air pollutants such as carbon monoxide and sulphur dioxide. The results have been outstanding: despite the steady increase in the number of cars and trucks on its roads in the past 50 years, California's air pollution levels attributable to vehicular sources have
declined by approximately 95%.
This arrangement worked so successfully that Congress chose to expand it when it amended the CAA in 1977. Congress added Section 177, allowing other states the ability to "opt into" California's more exacting tailpipe standards, rather than be subject to the EPA promulgated national limits. Over the past 42 years, a large number of states have done just that: for example, some 13 other states have opted into California's greenhouse gas tailpipe and zero emission vehicle standards. When added to California's 12% of the national automotive market, these "section 177" states account for over 35% of all affected motor vehicles sold in the United States -- some 15 million vehicles annually.
But things became more complicated and fractious after the U.S. Supreme Court ruled in its landmark 2007 Massachusetts v. EPA decision that greenhouse gas emissions are "pollutants" subject to regulation under the CAA. California promptly sought a waiver from the George W. Bush administration to implement the first-in-the-nation GHG tailpipe emissions standards that California regulators had adopted in 2004. For the first time in CAA history, the EPA initially denied the waiver request in 2008, finding that California's tailpipe standards were not necessary to meet "compelling and extraordinary conditions" relating to state climate change concerns. Then-California Gov. Arnold Schwarzenegger, represented by then-Attorney General Jerry Brown, promptly sued the Bush administration, challenging the waiver denial.
That litigation was rendered moot with the 2009 inauguration of President Barack Obama. The Obama administration promptly reconsidered and ultimately granted California's waiver request to implement its own GHG tailpipe emission standards, expressly concurring in California's position that it desperately needs those standards to meet the state's compelling and extraordinary challenges from climate change. The Obama administration then went further, striking a three-way agreement with California and the automobile industry to "federalize" California's GHG tailpipe standards on a nationwide basis and join them with the federal government's own, stringent mileage (CAFÉ) standards for passenger vehicles through the 2025 model year. (Under applicable federal law, only the federal government can adopt CAFÉ standards -- a fact California officials have never contested.)
That brings us to President Trump's war on the environment, and his vengeance on California. Since taking office, Trump has pledged to repeal the Obama/California GHG tailpipe emission standards, as well as the Obama administration's CAFÉ standards. (That, of course, is only part of Trump's multifaceted efforts to repeal Obama-era environmental rules.) Almost immediately, California officials announced their own plan to retain and enforce their own state GHG tailpipe standards, per the previously granted USEPA waiver.
Trump's efforts to repeal the existing federal standards have at least temporarily stalled; his minions have struggled mightily to construct plausible legal, technical or scientific rationales for its rollback initiatives under the CAA and related federal laws, in the face of promised lawsuits by the state of California and numerous other stakeholders. Meanwhile, in July California announced an historic agreement with Ford, Honda and two other major automakers in which the companies pledged to follow California's stringent GHG tailpipe emission standards prospectively.
This latter agreement reportedly enraged the president, who quickly retaliated against both California and the automakers. Trump directed his Department of Justice to launch an antitrust investigation of those four companies, claiming their pollution control agreement with California "might" violate federal antitrust laws. (Antitrust experts roundly criticize this argument as patently frivolous.)
Meanwhile -- and also under marching orders from President Trump -- on Sept. 19, EPA Administrator Andrew Wheeler announced he was revoking the federal government's previously granted waiver allowing California to implement its GHG tailpipe emissions standards. The Trump administration bases its revocation decision on four stated rationales:
• Withdrawal of California's waiver will allow automakers to build and market cars and trucks that are cheaper, safer and therefore better for consumers;
• Automakers need this waiver revocation and related federal rollbacks in order to remain in
business;
• The nation needs a uniform set of fuel economy standards; and
• California should not be allowed to "dictate" environmental rules to the rest of the nation, because that violates the CAA's intent.

Each of these stated justifications is utterly without merit.

First, economic studies indicate that the California tailpipe standards, if left in effect as part of the Obama administration's GHG and CAFÉ standards that Trump now seeks to nullify, would save American consumers more than $1.7 trillion in fuel prices through 2025. And Trump is trotting out the same, tired canard that the auto industry invoked for decades: that mileage and pollution control standards will make vehicles less safe. However, rates of automobile deaths and serious injuries have actually declined dramatically over the years as technology improvements have made vehicles safer as well as less polluting and more efficient.
Second, the auto industry is on record as opposing the drastic GHG emission and CAFÉ rollbacks that the Trump administration is proposing. As noted above, four of the world's largest automakers have expressly embraced the California GHG emission limits that Trump & Co. are trying to nullify. And, critically, not one major automaker has expressed public support for the administration's withdrawal of California's waiver. Indeed, several of them are already complying with California's projected tailpipe emission limits.
Third, and as noted above, California has never attempted to set fuel economy standards, either for itself or the nation as a whole. All concerned agree that this role is left exclusively to the federal government. (California and other critics of Trump's proposed CAFÉ standard rollback have had the temerity to note that such federal action will result in the discharge of 6 billion tons of additional GHG emissions over the expected lifetimes of the affected vehicles.) And the U.S. Supreme Court and lower federal courts have repeatedly held that the existence of CAFÉ standards does not displace the need for -- and government's obligation to consider -- pollution control measures to abate GHG emissions.
The fourth justification of the Trump administration's waiver withdrawal is the most specious of all: Congress expressly authorized California to adopt its own, more stringent tailpipe emission standards in 1970, and explicitly allowed other states to adopt California's standards as their own a few years later. Conversely, California has never attempted to impose its emission limits on any other state or the federal government.
California Attorney General Xavier Becerra is leading a broad coalition of 24 states challenging the Trump administration's attempted waiver revocation in court. That challenge should succeed. As noted above, the Trump administration's justifications for the waiver revocation are fake news. Equally important, the CAA contains no statutory authority whatsoever for the federal government to revoke a waiver request by California that it has previously granted.
In sum, the Trump administration's waiver revocation is unwanted by anyone but President Trump (along with, perhaps, Big Oil, which alone stands to benefit financially from higher polluting, less efficient vehicles). That revocation, meanwhile, is the automobile industry's worst nightmare, creating regulatory uncertainty that will extend for years and disrupt its manufacturing and marketing efforts. And it's bad news for consumers in California and other "opt-in" states, who desire cleaner vehicles that are cheaper to own and operate.
Finally, the waiver revocation, if upheld, erodes the ability of California and other affected states to meet their ambitious but necessary GHG reductions from the transportation sector -- the single largest generator of GHG emissions -- in sthe face of federal retrenchment and resistance on the climate change front.
Fight on, California, fight on.

[Cross-posted from Undark]

For much of the 20th century, asbestos — dubbed a “miracle mineral” for its strength and fire resistance — was ubiquitous in buildings, homes, and consumer products. But beginning in the 1970s, as the material was shown to cause cancer and respiratory illnesses, a combination of tort liability and regulation curbed its use in the U.S. For many, that awakening has been too little, too late. Thousands of Americans continue to die each year from asbestos-related diseases.

Today, we may be facing the next asbestos: Per- and polyfluoroalkyl substances, or PFAS. Stain resistant, waterproof, and grease repellant, PFAS are widely used in nonstick cookware, food packaging, clothing, furniture, and fire retardants. Their best-known applications include Teflon, Scotchgard, and GORE-TEX. But for more than a decade now, PFAS have been linked to increased cancer risk, reduced fertility, immune system suppression, and stunted growth and learning.

Known as “forever chemicals” because they do not easily break down, PFAS have found their way into drinking water supplies and into a variety of foods, and almost all Americans have detectable levels of PFAS in their blood. Yet federal regulators have taken few measures to protect citizens from PFAS’s harms — and when they have acted, they’ve been seemingly a step behind at every turn. That must change.

To their credit, manufacturers have taken some steps to respond to concerns regarding PFAS. Industry largely phased out two of the most commonly used and extensively studied PFAS — perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) — by 2002 and 2015, respectively. But both of these substances continue to seep from contaminated sites into the drinking water supplies of millions of Americans. And, for the most part, manufacturers simply replaced PFOA and PFOS with other PFAS chemicals that have similar structures, similar characteristics, and — scientists fear — similar health risks.

In theory, several environmental statutes — including the Safe Drinking Water Act and the Toxic Substances Control Act — could be used to address at least some aspects of the problem. However, federal regulators have been slow to respond. In 2016, the U.S. Environmental Protection Agency advised drinking water system operators to take action whenever combined PFOA and PFOS concentrations exceed 70 parts per trillion. Operators were advised to conduct further sampling, inform consumers of the elevated concentrations and potential dangers, and limit the public’s exposure to tainted water supplies. But the agency’s advisories govern only those two chemicals and are not enforceable. In February 2019, the EPA announced that, by the end of the year, it will start the process for developing enforceable standards for PFOA and PFOS levels in drinking water, though it’s unclear when the work will be completed.

As the EPA drags its feet, some states have begun to develop their own regulatory standards — and to file lawsuits against industry and the U.S. Department of Defense, which owns or operates hundreds of sites contaminated by PFAS-containing firefighting foam. In Congress, bipartisan support for legislative action is building. More than 30 PFAS-related bills have been introduced on the Hill, including proposals requiring the Defense Department to address water contamination at military bases and EPA to establish enforceable standards for PFOA and PFOS in drinking water within two years.

Although these developments are encouraging, PFAS contamination is a multifaceted problem that calls for a multifaceted response. So, as Congress pursues legislative solutions, there are several things it should keep in mind.

First, because PFAS comprises thousands of substances, a chemical-by-chemical approach to regulation is likely to fail. Hundreds of scientists have concluded that the structural similarities between PFOS and PFOA — for which the evidence of toxicity is clear cut — and other PFAS warrant caution in the use of all PFAS. Regulation of the various PFAS chemicals should not require definitive evidence of each individual substance’s toxicity.

Second, Congress should address not only the threat of present-day exposure to PFAS, but also harms from past exposure and risks of future exposure. It will be essential to identify and redress harms to those who have already been exposed to PFAS, to clean up contaminated sites and secure safe water supplies, and to prevent future contamination. In the cleanup process, establishing drinking water standards is only a first step. Water suppliers will likely require financial and technical assistance to achieve those standards — and basic fairness suggests that the companies responsible for the contamination should bear the costs. To prevent future contamination, Congress should limit PFAS use and promote non-PFAS alternatives.

Third, although drinking water contamination is the most pressing and significant pathway for PFAS exposure, people can also be exposed to PFAS through their work environments, contaminated foods, foods wrapped in PFAS-treated packaging, and various consumer products. It will be important to assess the risks associated with these alternative pathways and to develop strategies to deal with them.

The broad bipartisan support for action on PFAS reflects the urgency and importance of the substances’ known health hazards. Congress must act quickly — and wisely — to make sure PFAS doesn’t become the next asbestos.

[Cross-posted from Sacbee.com, and co-written by David Mogavero]

California’s wetland resources provide an abundance of human and environmental benefits: flood protection, filtration of water pollutants, surface and groundwater supplies, wildlife habitat, open space, public recreational opportunities and more.

Sadly, historical filling and development projects have reduced our wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming: 95 percent of the formerly abundant lagoons and marshes along California’s coastline have been destroyed.

In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nation’s dwindling wetlands. This federal program has never been wholly successful in achieving that goal. In recent decades, litigation over the extent of federal authority to protect wetlands, federal regulators’ failure to delineate clearly that authority and, now, the Trump administration’s overt plans to open wetland areas to development have combined to threaten America’s few remaining wetlands.

California has the ability to fill this alarming regulatory gap, at least here in the Golden State. California’s State Water Resources Control Board possesses independent power to protect and preserve the state’s remaining wetlands. Indeed, it has broader authority to do so than do federal regulators. Years ago, Gov. Pete Wilson announced a “no net loss” goal for California wetlands, but the board is only now considering a specific policy to do just that.

In January, the board released a final draft of its proposed state wetlands policy. Earlier this month, it held a well-attended public workshop to receive public testimony. Real estate interests and land speculators have expressed their opposition to that proposal on three main grounds. They say:

▪ The board plan is rushed and premature.

▪ The draft policy unduly elevates environmental concerns over economic considerations.

▪ Adoption of the plan would undermine California’s efforts to address its current housing crisis.

Each of these criticisms is utterly without merit.

First, industry’s claim that the water board is rushing to judgment is patently false. In fact, the board has been debating its wetlands policy for nearly a decade in a transparent and publicly-inclusive process that has involved no less than a dozen opportunities for public engagement and comment.

Second, the draft policy is measured and moderate. That’s underscored by the fact that 11 of California’s most respected environmental organizations have filed formal comments with the board complaining that the draft wetlands policy is too lax and urging the board to consider strengthening it. We agree that the board’s draft wetlands policy is, if anything, too weak rather than too stringent. We certainly do not believe that this policy should be weakened any further.

Finally, industry’s claim that adoption of the proposed wetlands policy will undermine achievement of the state’s affordable housing goals is its most cynical and specious. That’s because there are literally hundreds of thousands of acres of undeveloped or underdeveloped properties currently available for building new housing across California.

These properties are generally located in existing communities close to jobs, shopping, schools and transit, thus allowing Californians to substantially reduce their commutes and costs, and consequently shrink their cost of living.

Focusing new housing in existing communities also accomplishes multiple other important public policy objectives, such as reducing state greenhouse gas emissions, encouraging investment in existing communities and increasing the tax base to pay for existing infrastructure maintenance.

Conversely, building in remote, currently undeveloped regions of the state is the only type of housing project that endangers California wetlands. It also contradicts the explicit state policy of encouraging infill development. It’s precisely the type of housing that polls indicate most Californians no longer want.

The water board’s proposed wetlands policy is measured, reasonable, critically needed and long overdue. The board should adopt it without further delay.

By Rick Frank

[Cross-posted from LegalPlanet]

1969 Santa Barbara Oil Spill Sparked the Beginning of America's Modern Environmental Era

This week marks the 50th anniversary of one of the most serious and consequential environmental disasters in American history–the Santa Barbara offshore oil spill of 1969.  On January 28, 1969, an offshore oil rig (Platform A) owned and operated by the Union Oil Company and operating in federally-controlled waters in the Santa Barbara Channel off the California coast, blew out.  Over the next 10 days, between 80,000-100,000 barrels of crude oil spilled into the Channel and onto California beaches, stretching from San Luis Obispo County south to San Diego–though the majority of the spill-related damage occurred in Santa Barbara and Ventura Counties.  That oil spill killed approximately 3,500 seabirds and an unknown but substantial number of marine mammals including dolphins, elephant seals and sea lions.  The spill was not completely capped until early 1970

A half century later, the Santa Barbara oil spill remains the third largest oil spill in U.S. history, after only the Deepwater Horizon spill in the Gulf of Mexico (2010) and the Exxon Valdez oil spill in the ocean waters of Alaska’s Prince William Sound (1989).

In many ways, however, the January 1969 Santa Barbara spill remains the most consequential and transformative environmental disaster in American history.  That’s true for several related reasons.  First, it was the inaugural such environmental disaster captured and broadcast into millions of U.S. households on the evening news.  For weeks, the major TV networks provided gripping, daily accounts of the biological damage and adverse economic effects produced by the Platform A blowout.  And that had a profound effect on the national psyche, with televised footage of dead and dying animals, fouled beaches and oil-saturated ocean waters underscoring in the most stark way the myriad costs associated with oil and gas development in coastal waters.

Second, the Santa Barbara oil spill provoked a strong and immediate response from government leaders.  Local officials complained bitterly to the media and public about the lack of adequate environmental controls and oil spill response efforts, noting presciently that the federal government that had issued the oil and gas leases–thereby earning substantial royalties from the oil companies’ offshore development activities–had an inherent conflict of interest when it came to regulatory oversight of those same activities.  Federal officials had a more muted reaction to the spill: President Richard Nixon visited the area to view the spill and cleanup efforts on March 21st, telling the assembled crowd, “…the Santa Barbara incident has frankly touched the conscience of the American people.”  But on April 1st, a hastily-adopted, temporary federal drilling ban was lifted, and oil and gas development in federal waters resumed off the California coast.

Longer term, however, the Santa Barbara spill would have a direct and positive effect on American environmental policy and law.  Later that year, Congress would enact the National Environmental Policy Act (also a half century old this year).  And NEPA was but the first in a torrent of environmental legislation passed by Congress over the next decade–including the Clean Air Act, Clean Water Act and Endangered Species Act–that to this day remains the basic framework of federal environmental law.

Environmental activism is another direct outgrowth of the 1969 Santa Barbara oil spill.  The next year, U.S. Senator Gaylord Nelson of Wisconsin led efforts to organize the first Earth Day, an annual celebration of the environment and environmental values that continues to this day.  Additionally, local, state and national environmental organizations saw their membership ranks swell in the wake of the Santa Barbara oil spill.

The Santa Barbara oil spill also catalyzed a state government response that quickly made California a national and international leader when it comes to environmental policy and law.  In the immediate wake of the disaster, the Republican-dominated California Legislature created an interim Committee on Environmental Quality, directing it to develop recommendations for state environmental legislation.  The most important outgrowth of that initiative was passage in 1970 of the California Environmental Quality Act; modeled on but significantly stronger than NEPA; CEQA remains California’s most important, cross-cutting environmental law, as well as the most powerful “little NEPA” statute in the nation.  And when the California Legislature balked at passing a law specifically designed to prevent ocean and coastal damage exemplified by the Santa Barbara oil spill, state voters responded by enacting an initiative measure in 1972 creating the California Coastal Commission and the most powerful system of coastal regulation and preservation in the nation.

Last but not least, the Santa Barbara spill had a transformative on academia and education.  In direct response to an environmental disaster that severely damaged its own coastal campus, the University of California, Santa Barbara immediately created the nation’s first environmental studies program, featuring such luminary professors as human ecologist Garrett Hardin and environmental historian Roderick Nash.  Fifty years later, environmental studies programs are an essential part of the curriculum at most of the nation’s colleges and universities.  Similarly, environmental law is a key area of specialization at U.S. law schools, and environmental law centers and clinics play a critical role at many of America’s top law schools–including the three University of California law schools that contribute to this blog site.

To be sure, the 1969 Santa Barbara oil spill was a major environmental disaster, one that caused considerable environmental damage to the ocean environment and economic havoc to California’s coastal communities.  But the silver lining (if one can call it that) to that disaster from a half century ago is that it–perhaps more than any other single event–brought the need for ecosystem protection and environmental regulation to America’s collective consciousness and ushered in the modern era of environmental law, policy and advocacy.

As we reflect on the 50th anniversary of the Santa Barbara spill, that’s a most welcome legacy of a truly horrific event.