Trump's Pending Rules on California Water Marked by Missing Documents and Hurried Reviews, Say Scientists

Independent scientists have raised serious concerns about a Trump administration plan to divert more water to California farmers, according to documents obtained by KQED.

In their analyses, they write that the plan poses risks to threatened fish; that the process is rushed; that they didn’t receive enough information to provide a complete scientific review; and that the Trump administration may be skewing the science to make the environmental impact look less serious.

“It is difficult to imagine how these predicted conditions could be considered an acceptable risk to the critical habitat of a listed species,” wrote Ronald Kneib, an ecological consultant and senior research scientist emeritus at the University of Georgia. 

The plan, which involves how much water to pump out of the Sacramento-San Joaquin River Delta, and under what conditions, will control irrigation for millions of acres of farmland in the country’s biggest agricultural economy, drinking water for two-thirds of Californians from Silicon Valley to San Diego, and the fate of endangered salmon and other fish.

Some see the fingerprints of interior secretary David Bernhardt, who once helped lead the charge to weaken environmental standards and send more water to farmers. A former lawyer for agricultural heavyweight Westlands Water District, Bernhardt is under scrutiny after a recent New York Times investigation reported that, shortly after joining the Interior Department in 2017, he directly advocated on Westlands’ behalf to get more water for farmers at the expense of endangered fish, even though federal rules precluded him from lobbying.

The Trump administration is expected to announce the rules this week. The final step before that was the independent scientific review, in which federal agencies send their biologists’ analyses of the plan to scientists outside the government for review, to ensure the agencies are using the best possible scientific studies and interpreting them correctly.

“Independent scientific review is critical because it provides a check on the agencies,” said Doug Obegi, an attorney at the Natural Resources Defense Council in San Francisco who has read the reviews. “What the reviews show is that the agencies seem to be rushing the analysis to try to meet President Trump’s deadline rather than following the science.”

Skewing the Science: Missing Documents and Hurried Reviews

President Trump ordered in October 2018 that the incredibly complex rules to be drafted faster than ever before.

“We will have it done very, very quickly,” Trump said to members of the California GOP congressional delegation last October as he signed an executive order. “I hope you enjoy the water that you’re going to have.”

The rules govern a delicate balancing act, determining how much water is sent to cities and farmland and how much must remain in the Sacramento-San Joaquin Delta ecosystem for threatened wildlife, like endangered salmon. That’s made them a target for Central Valley agricultural interests, because  in dry years, the rules can limit their water supply.

Federal biologists set these rules, and they are the final word on how much and when water can be pumped out of the Delta. By law, federal scientists must complete an intricate analysis, and vouch in detailed documents, called biological opinions, that the rules will not drive threatened species such as endangered salmon, delta smelt and other fish to extinction.

To meet the president’s timeline, scientists at NOAA Fisheries and the U.S. Fish and Wildlife Service had to work at an unprecedented pace, cutting back the independent scientific review, and eliminating the public from the process.

All told, they had 135 days to complete their analysis. The last time NOAA Fisheries completed the analysis, in 2008 and 2009, it took 246 days.

In 2008, a seven-member scientific panel reviewed NOAA’s draft rules, including holding a forum that was open to the public. The panel ultimately produced a report more than 50 pages long, flagging issues in the science for federal biologists to consider. 

This time around, the independent review has been less rigorous, according to documents obtained by KQED. Fewer scientists were involved, they received incomplete drafts of the plan, and were given less time to complete their review.

In early June, two scientists received a draft of NOAA’s biological opinion evaluating the impact of the plan on endangered salmon, and were given 12 days to review it. But the draft lacked a key chapter explaining how scientific studies about threatened species will inform a water pumping plan.

“These unavailable chapters precluded a thorough top-down review from objectives, methods, results and conclusions,” wrote John R. Skalski, a professor of biological statistics at the University of Washington. 

The other reviewer echoed that.

“I therefore provide answers [to] the charge questions that are restricted in scope due to time constraints and not knowing the details,” wrote Kenneth Rose, professor at the University of Maryland Center for Environmental Science, in his review.

Rose also left four review questions blank “due to time limitations,” he wrote.

“This is definitely a shorter review,” said James Anderson, a research professor at the University of Washington who was on the seven-member science panel in 2008.

In April, the U.S. Fish and Wildlife Service asked three independent scientists to review its draft biological opinion on the delta smelt, a small fish that is hovering on the brink of extinction. The smelt, considered an indicator of wider Delta ecological health, can be killed by the giant federal and state pumps near Tracy that move billions of gallons of water south. Its population has plummeted due to invasive species and dramatically changed water conditions in the delta. 

One of the reviewers flagged the pressure of a 2-week timeframe.

“Due to the overwhelming amount of information provided and the relatively short window for review (this is in the middle of my field season), I requested a 48-hr extension,” wrote Joseph Merz, a reviewer with Cramer Fish Sciences in West Sacramento.

All three reviewers highlighted that sending more water out of the Delta to farmers would risk the smelt’s existence. 

“If the conclusion of this BiOP [biological opinion] is that the PA [proposed action] will make things worse for delta smelt and that the numbers are continuing to decrease… doesn’t that suggest great peril for the species?” Merz wrote.

Kneib, from the University of Georgia, agreed, expressing concern that the agency was skewing the science to make the impacts on delta smelt look less serious. He cited examples “where the available information seemed inappropriately applied or applied beyond the scope of a study from which it was derived in order to support conclusions that effects on Delta Smelt or their critical habitat were minor.” 

Last Steps 

Both federal wildlife agencies are now reviewing the independent scientists’ findings. They could then change their biological opinions based on that feedback.

“We developed a timeline to complete the biological opinion that allowed adequate time to solicit comments from peer reviewers and the water agencies to be considered and incorporated into the final biological opinion as appropriate,” said Shane Hunt, spokesman for the Fish and Wildlife Service. “We believe these comments have significantly improved the analysis and have assisted us in ensuring that this biological opinion is complete and informed by the best available science.”

NOAA declined to respond to questions about the review process.

The agencies’ final rules, expected this week, will have far-reaching impacts on millions of Californians and the future of the Delta ecosystem. In some years, roughly half of all the water that flows into the Delta — a vast system of sloughs and marshes that extends from south of Sacramento to San Francisco Bay — already is pumped out, reducing water quality and imperiling wildlife.

Critics worry that if more water is taken, species will go extinct and San Francisco Bay’s water quality will decline. In the past, biological opinions have ended up at the center of lawsuits, which, experts say, may well be the outcome with the new ones coming from the Trump administration.