California Water under a Trump Administration, Part 1 of 2
[Cross-post from the California WaterBlog]
Incoming President Trump made California water policy a central talking point in his 2024 presidential campaign, with promises to increase water for farms and cities and decrease water flowing to the Pacific Ocean. It is clear that the incoming administration—much like the first Trump administration—is focused on California Water. In this and a following blog, I examine what this is likely to mean for California water management. A key takeaway is that California will likely be able to continue many of its current water policies, with marginal changes, although there will likely be increased litigation between the state and federal government. The bad news is that even California’s current policies are inadequate to maintain healthy aquatic ecosystems across the state, and California is likely to find it even harder to move forward on these fronts while locked in ongoing struggles with the federal government.
In considering how the next several years will play out, there are a couple of thing to keep in mind. First, under the Supremacy Clause of the U.S. Constitution (Art.VI, C. 2), federal law is the "supreme Law of the Land", preempting and state laws that conflict with federal law. Some areas of law, however, are traditionally reserved to the state, and courts will try to read federal laws in such a way as to avoid preemption if possible. Moreover, the federal government is one of limited powers, and those powers not expressly granted to the federal government by the Constitution remain under the control of the states. Non-interstate water rights and water resource management are a prime example where the federal government generally plays second fiddle to state law.
Second, the first Trump administration had a hard time writing regulations that would survive court challenges; the administration lost in court 83% of the time in its efforts to change environmental regulations, often for failure to follow appropriate procedure. Changing these regulations is also a time-consuming process, especially if the changes are to survive the inevitable court challenges. Even the successful efforts to change environmental regulations during the last Trump administration took many years.
Current law makes it difficult for a new presidential administration to change how water and the environment is managed at the state level. And although it is too early to say whether the second Trump administration will have more success in writing enduring regulations, it is unlikely to be quick and easy.
The Major Issues
This first blog examines three major issues that may be impacted by the new administration’s policies: groundwater management, water quality in the Sacramento-San Joaquin Delta, and large water supply infrastructure projects. A following blog will examine three more issues: operation of the state and federal water projects, potential changes in bedrock principles governing water management, and several indirect impacts of the new administration.
1. Groundwater – Implementation of the Sustainable Groundwater Management Act (SGMA)
Water rights, the allocation of water to water users, is traditionally a state property law issue, and that’s especially true of groundwater. California embraced modern groundwater management in 2014 with the passage of SGMA, and the state has been proceeding with implementation of the Act over the last decade. For an update on SGMA implementation, check out the video of this recent conference at the UC Davis School of Law: 10 Years In: A SGMA Report Card. There have been speedbumps in the implementation process—inadequate Groundwater Sustainability Plans and a few lawsuits are brewing—but none of that is surprising in a new regulatory structure.
Because groundwater is such a foundational state issue, and due to the long legal and customary history of leaving groundwater regulation to the state, it seems unlikely that the second Trump administration will be able to intervene in SGMA implementation. No state wants the federal government intervening in its regulation of groundwater, and an effort to do so would likely bring a backlash from many states, not just California. Moreover, SGMA implementation began under the first Trump administration, and there was no real federal pushback then. Of course, groundwater pumping restrictions under SGMA will put more pressure on delivery of surface waters, an area with a strong federal presence, but interference with SGMA is a stretch. To be clear, as the PPIC has shown, SGMA is going to be the biggest change in terms of water availability over the next decade, but the direct federal role is likely to be minimal.
2. Bay-Delta Water Quality Plans
California’s state and regional Water Boards implement the federal Clean Water Act through the state’s own independent state law, the Porter-Cologne Water Quality Control Act. which has significant effects on water availability. One of the biggest things happening in California water right now is the update of the Bay-Delta Water Quality Control Plan. The Bay-Delta Plan establishes the protected uses of the Bay Delta (things like water based recreation, support for native species, drinking water supply, and so on), and then establishes standards (called water quality objectives) that will protect those uses. These water quality objectives can be characteristics of the water, like salinity or sediment or temperature, but they can also include protection for a minimum volume of water. Meeting these objectives can reduce the amount of water available to divert for farms and cities, which makes these updated plans controversial.
In December 2018, the State Water Board updated the Bay-Delta Plan to require increased flow (an average of 40% of unimpaired flow) in the Lower San Joaquin River and its three major tributaries. The next step was to be implementation through regulations to reallocate water, but the Newsom administration’s push to incorporate voluntary agreements has slowed implementation to a crawl. The idea behind voluntary agreements is that some water users could do habitat improvement or other actions to help protect uses identified in the Bay-Delta Plan, and in exchange they would lose less of their water right. In late October, the Water Board released a revised Bay-Delta Plan incorporating some consideration of voluntary agreements; it is as yet unclear how this is going to play out, although it will certainly involve litigation and more delay. The State Water Board is still working on a revised plan for the Sacramento and its tributaries, which is also likely to invite significant controversy.
As with groundwater, water quality is an area of strong deference to state law, and the Trump administration is unlikely to have a strong voice in this process. The Newsom administration has not made significant progress on these efforts during the Biden administration, and being forced back into an oppositional role to the new Trump administration might even reinvigorate the Water Board’s work on Bay-Delta water quality. There are, however, a couple of caveats to this issue.
First, when the State Water Board was first preparing to release the revised Bay-Delta Plan, in July 2018, the then-U.S. Bureau of Reclamation (BoR) Commissioner Brenda Burman threatened to sue the Water Board to fight against potential reductions in Reclamation’s water rights. The first Trump administration did, in fact, file suit in March 2019, arguing the state violated the California Environmental Quality Act by (ironically) being too environmentally protective. Under the Biden administration, the lawsuit has not been pursued, but it is likely to be reinvigorated under the Trump administration. The federal lawsuit is based on an unusual legal claim, and it doesn’t seem likely to carry the day. Moreover, if BoR is signs on to the voluntary agreement proposal, a lawsuit challenging the Water Board’s authority seems unlikely. Taken together, this suggests that a federal lawsuit is unlikely to derail the Bay-Delta Plans.
Second, there is pending federal legislation, sponsored by San Joaquin Valley Rep. David Valadao, that would curtail the Water Board’s ability to implement a Bay-Delta Plan. With Republication control of the House and the Senate, this bill could become law, but it seems unlikely given the closely divided federal legislature and the broadly-shared view that this is state issue.
3. Infrastructure Projects
This issue is more complicated. The Newsom administration is pushing for several big infrastructure projects that may be appealing to the Trump administration. For example, there is both state and federal financial and political support for the expansion of San Luis Reservoir through the $1 billion dam raising and for construction of the proposed $4.4 billion Sites Reservoir. Although recent financial support has come through the Biden administration, some of the Sites funding comes from legislation signed during the first Trump administration, which suggests that such support will continue.
There are some areas of disagreement on infrastructure investment. For example, the first Trump administration declined to provide financial support for the Delta Conveyance Project (the tunnels), which are now priced at $20 billion, although it did grant the required environmental permits. And when the Trump administration secured funding and federal support for raising Shasta Dam, the Newsom administration responded with a lawsuit to stop state agencies from participating in the project. It seems likely that the new administration will revive effort to raise Shasta Dam, which may spark another legal response from the state to protect tribal and environmental interests. In all, infrastructure is likely to be a mixed bag, with rapid movement on some projects and continued fighting on others.
Check back next week for analysis of operation of the state and federal water projects, potential changes in bedrock principles governing water management, and indirect impacts of the new administration.
UC Davis Professor of Law Karrigan Börk’s publications run the gamut from California minimum streamflow requirements to a hatchery and genetic management plan for the reintroduction of spring-run Chinook salmon in the San Joaquin River. Prof. Börk graduated with Distinction and Pro Bono Distinction from Stanford Law School in 2009 and completed his Ph.D. dissertation in Ecology at UC Davis in September 2011. His current work focuses on western water law.