On February 19, 2020, President Trump, Interior Secretary David Bernhardt, and other federal officials met in Bakersfield, California, for the signing of a Presidential Memorandum seeking additional water for the Central Valley.

The memorandum instructs the Secretaries of the Interior and Commerce to coordinate efforts to broaden their agencies’ actions, consistent with existing law, in order to ensure a reliable source of water for municipal and agricultural uses in the Central Valley. It also directs the Secretaries to fully implement recent administrative changes to the management of programs established under the Endangered Species Act. Agencies are taking different approaches to achieve these directives which are estimated to deliver 600,000 acre-feet of water to the San Joaquin Valley. The U.S. Fish and Wildlife Service is working collaboratively to improve technology and contemporize current water delivery systems. Other federal agencies are working on improving rainwater capture, storage systems, and regulations to provide increased certainty for water users in the valley, while at the same time taking measures to protect endangered species.

Environmental groups have expressed concerns that the changes will divert water away from these species to agricultural and municipal uses which instead could use already allocated water more efficiently. On the other hand, President Trump and Republican legislators hope that these changes will allow for more flexibility in water deliveries instead of allowing authorities to “flush[ed] millions of gallons into the Pacific.” In response, Governor Newsom told the Sacramento Bee that he would be taking legal action to protect more than a dozen endangered fish within the delta which are already close to extinction. Attorney General, Xavier Becerra, filed suit two days after Governor Newsom’s public statement.

In the meantime, the Central Valley has seen numerous groundwater markets emerging under the Sustainable Groundwater Management Act (SMGA). Most of the San Joaquin Valley basins are considered “critically over drafted” and implementation has created a series of challenges. However, according to David Orth, the principal of a water resources strategic planning program, it is important to remember that the basic objective of SGMA is to manage groundwater locally and remaining flexible “within the corners of law…[will help] maintain that local management.”

At the federal level, the EPA has also recently sought to expand the role of water reuse for both potable and non-potable uses. This well-established practice is “low-hanging fruit” when it comes to increasing sustainability and will likely continue to grow in prevalence across states and associations. The EPA action plan details 37 actions to promote water reuse over the next three years. The plan aims to increase eligibility of water reuse for federal funding but fails to identify sources for the funding. Amid the EPA’s administrative actions, California contest the Trump Administration’s modifications to the Central Valley Project in court.

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Diane Kindermann Henderson is a shareholder at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.