Posted on August 23, 2018 by Rick Glick
In a tweet released August 6, President Trump offered his analysis of how to combat the ongoing human and ecological tragedy of one of the worst fire seasons of record.
The president then directed Commerce Secretary Wilbur Ross to take action to free up all that wasted water and solve the fire problem, the first part of which the Secretary dutifully did. On August 8, Secretary Ross directed NOAA Fisheries, the agency within the Department of Commerce that implements the Endangered Species Act with regard to anadromous fish and marine mammals, as follows:
Consistent with the emergency consultation provisions under the ESA, Federal agencies may use any water as necessary to protect life and property in the affected areas. Based on this directive, NOAA will facilitate the use of water for this emergency.
Call me old fashioned, but I think an inquiry to California officials as to what they actually need might have been appropriate. It also couldn’t have hurt to include an expression of concern for the lives and homes lost to the conflagration. Instead, Mr. Trump chose to cast blame on restrictive environmental laws constraining the amount of water available to fight the fires.
In fact, California has repeatedly informed the Administration that lack of water is not the problem. The fires are driven by hot, dry conditions and high winds. They are primarily fought not by dumping water but by constructing fire breaks to contain the fire.
It is interesting that the Administration chose not to invoke the “God Squad” provisions of the Endangered Species Act to exempt federal response agencies from ESA requirements. The reason may reflect that this is an elaborate and politically fraught process. Still, invoking the emergency consultation procedures under the ESA is a grave undertaking that requires NOAA to step through a process to mitigate emergency measures, document its decision not to impose protective measures for listed species, and then at the end of the emergency discuss remediation of the effects of the actions with the other federal agencies.
The ESA does affect water use, but the conflict is generally between agricultural water interests and aquatic habitat advocates. It may be that the Administration is using the fire emergency to highlight a different priority, to remove ESA impediments to allow more water for irrigation. In his statement, Secretary Ross concluded: “Going forward, the Department and NOAA are committed to finding new solutions to address threatened and endangered species in the context of the challenging water management situation in California.”
That’s a fairly innocuous statement, but it could easily be read as a policy statement that the Administration sees the ESA as an impediment to allocating water for agricultural and other business uses in California and elsewhere. That may be, but it is one Congress put in place decades ago to conserve listed species and their critical habitats, and which Congress has not seen fit to address further.