California Attorney General Xavier Becerra on Tuesday filed a lawsuit against the Trump administration over state authority in water rights certifications.

The issue was also recently at the center of debate over a provision within a state budget trailer bill pushing back on the administration’s changes to the Clean Water Act. Moderate Democrats, however, labeled the policy and lawsuit a “water grab” by the State Water Resources Control Board and worried about the impacts on water supplies for agricultural and for disadvantaged communities.

Washington and New York are leading the lawsuit alongside California, with more than a dozen other attorneys general signing on in agreement.

Joined by the National Resources Defense Council, Becerra said in a press conference on Tuesday that the Trump administration is attempting to undermine the Clean Water Act by limiting states’ authority over approving or denying water certifications under Section 401 of the act. This grants states the authority to review water quality impacts for federally licensed projects.

Doug Obegi, a senior attorney at NRDC, said Section 401 is “really the only way that the state of California can impose conditions on these 50-year licenses for hydroelectric projects.”

Last month, a federal judge rejected California’s bid for an injunction to block the implementation of the Trump administration’s new Navigable Waters Protection Rule within the act days before it went into effect.

Some the of the proponents of Tuesday’s lawsuit have also been directly involved in the process for voluntary agreements over Delta water flows, though the talks have stalled under separate litigation.

“This lawsuit is necessary to ensure that the Clean Water Act’s protections can be fully realized,” said State Water Board Chair Joaquin Esquivel in a statement.

Esquivel has supported the voluntary agreements and delayed the implementation of the first phase of the board’s new Bay-Delta Water Quality Control Plan to allow time for the agreements.

Yet Assemblyman Adam Gray, a moderate Democrat from Merced, told Agri-Pulse this lawsuit is another example of a “water grab” by the State Water Board and its staff.

“There are certain parties that are using the hyper-partisan environment we live in to make this a Trump-versus-California thing,” he said, adding that the board has been expanding its authority over water flows for years.

Adam Gray with Jim Costa

Asm. Adam Gary, D-Merced

Similar arguments were made during floor debates earlier in July over a public resources trailer bill. A provision inserted within the bill allowed the State Water Board to allocate water rights certifications before environmental reviews under the California Environmental Quality Act (CEQA) could be completed, aiming to circumvent the new rule in the Clean Water Act.

Standing against the measure, Senate Republican Leader Shannon Grove of Bakersfield called the policy “just another assault on our water supply for our farmers" that would harm Central Valley jobs as well as food security. Fellow Republican Jim Nielsen of the Sacramento Valley said it was part of continuing trend of granting “more power and authority” to state agencies.

Yet moderate Democrats in agricultural regions voted against the bill as well. Sen. Anna Caballero of Salinas said it would have “a deleterious impact on a major energy producer in my region.” She feared the board would use the measure to stall an effort by the Merced Irrigation District to renew a federal license for its hydropower system.

Sen. Bob Wieckowski of Fremont defended the measure at length. He said the Trump administration’s changes to the Clean Water Act will “drastically roll back” the board’s authority for the next 50 years for this project along with seven more that are also up for renewal.

In a statement to Agri-Pulse, Wieckowski said he strongly supported Becerra’s lawsuit.

“California has fought consistently against the Trump administration’s egregious assault on state protections,” he said. “Today’s lawsuit shows, yet again, that we will not back down.”

Xavier Becerra

California Attorney General Xavier Becerra

Gray, however, argued that the State Water Board failed to follow the law by delaying water rights certifications for projects they didn’t agree with, such as for hydroelectric dams. This led to the federal government stepping in to issue the certifications instead, he explained.

“It's one thing to make sure that if you're going to build something – whether it be a reservoir, or a bridge, or a freeway – you understand the environmental impacts,” he said. “It's another thing to use lawyers and environmental law to just delay or be anti-growth or don't allow for any project to be done.”

Doug Obegi of NRDC, however, said the projects have been the ones “gaming the system” by refusing to start the CEQA process and then telling federal agencies the State Water Board has “waived its right to certify because they haven't done it within this time period, even though the board is bound to comply with state law.”

Gray and other lawmakers have also taken issue with the way in which the state has tried to resolve the issue. Lawmakers “sneaked” the provision into a broad budget package passed under a shortened timeline for the Legislature this year. Becerra’s lawsuit, similarly, puts the decision in the hands of a federal judge, a tactic Gray said is common among environmental advocacy groups.

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“They've decided that a better way to protect the environment is to file endless litigation and delay things long enough until they become too expensive and people abandon projects,” he said.

Echoing widely felt criticism over CEQA, Gray said this tactic is why Californians are struggling with high housing costs, unreliable water supplies for the Central Valley, road congestion and air quality issues. He called the lawsuit pandering under pressure from environmental groups and that the issue should be addressed through a public arena or at the negotiating table among the parties involved, and not in an adversarial setting like the courtroom.

“All sides have got to sit down – environmental stewardship groups, cultural groups, cities, counties, rural communities – and we need to hammer out an agreement,” he said. “At the end of the day, everyone's going to have to give something up and everyone hopefully is going to get some stability and security going forward.”

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