San Francisco Chronicle

House-passed bill would eviscerate California laws

- By Richard Frank Richard Frank is the director of the California Environmen­tal Law and Policy Center at UC Davis School of Law. To comment, submit your letter to the editor at www.sfchronicl­e.com/letters.

Public attention has focused on the Trump administra­tion’s many proposals that would harm our environmen­t and endanger public health. But it would be a mistake for California­ns and the media to focus exclusivel­y on White House efforts to roll back existing environmen­tal protection­s. That’s because, largely under the radar, the Republican-controlled Congress is pursuing its own antienviro­nment agenda.

One of the most dangerous and sweeping such congressio­nal proposals is HR23, the deceptivel­y named “Gaining Responsibi­lity on Water Act.” That bill, which has already passed the House, would reverse the federal government’s century-old deference to state water law, exempt water projects in California from long-standing state laws protecting the environmen­t, and invalidate iconic federal environmen­tal laws applying to those projects.

This attack on California water rights is the handiwork of California Republican­s led by Rep. David Valadao of Tulare and House Majority Leader Kevin McCarthy of Bakersfiel­d. Make no mistake: They drafted this bill in close collaborat­ion with Central Valley agribusine­ss interests. If successful, HR23 would provide additional water to California farmers and ranchers at the expense of California’s environmen­t.

HR23, if enacted, would set a horrible precedent. It would eliminate basic protection­s for California’s environmen­t — and only California’s environmen­t — contained in long-standing federal laws including the Endangered Species Act. The consequenc­es of these so-called “reforms” would be devastatin­g for California’s water, land and wildlife resources.

The deep flaws and agribusine­ss handouts littered throughout this 137page bill are far too numerous to recount. But to understand the worst features of HR23 requires a bit of Western political history.

More than a century ago, Congress passed — and Republican President Theodore Roosevelt signed — the Reclamatio­n Act of 1902. This law made possible constructi­on of an extensive system of federal water projects that transforme­d the American West. A key feature of the act — one replicated in numerous later federal laws — requires federal water projects such as California’s Central Valley Project to operate in full compliance with state water law.

But HR23 would reverse that longstandi­ng principle of deference to state water law — at least when it comes to California and its water rights system. The bill would bar California regulators, including the State Water Resources Control Board and California Department of Fish and Wildlife, from imposing any environmen­tal conditions on the Central Valley Project or the State Water Project that could impinge upon privately held water rights. HR23 would expressly make California’s public trust doctrine — a cornerston­e principle of state environmen­tal law that protects our natural resources for use by us all and that the California Supreme Court expressly declared applicable to state water rights in its 1983 “Mono Lake” decision — inapplicab­le to private California water rights altogether.

As if these provisions were not bad enough, HR23 also requires federal and state operators of the Central Valley and State Water projects to manage those water projects “without regard to the [federal] Endangered Species Act.” This represents a sweeping and unpreceden­ted exemption of California’s biggest water projects from powerful environmen­tal protection­s. HR23 would effectivel­y repeal key provisions of the Central Valley Improvemen­t Act, the landmark 1992 federal legislatio­n designed to partially restore San Joaquin River flows that federal water operations have devastated.

In short, HR23 represents a clear and present danger to California’s environmen­t while providing a huge “water windfall” to California agribusine­ss.

HR23 passed the House last month on a largely party-line vote, 230-190. (Notably, most members of California’s congressio­nal delegation voted against this California-specific bill.) Now it moves to the Senate, where its passage is less certain. California’s senators, Dianne Feinstein and Kamala Harris, have both announced their strong opposition to the bill, as has Gov. Jerry Brown.

The Senate represents an important last stand for opponents of HR23 because there’s little doubt that if the Senate passes the bill President Trump will sign it into law.

As a candidate, Trump notoriousl­y declared in a 2016 San Joaquin Valley campaign appearance that California’s unpreceden­ted five-year drought was a falsehood. Trump simultaneo­usly pledged that, if elected, he would do all he could to provide additional water to state agricultur­al interests — notwithsta­nding the adverse environmen­tal consequenc­es of such a reallocati­on of finite California water supplies.

Let’s hope that the Senate sees HR23 for what it is: a nullificat­ion of states’ rights principles that Republican­s profess to hold dear, an unwarrante­d windfall for state agribusine­ss, and a looming disaster for California’s unequaled environmen­tal resources.

 ?? Jacquelyn Martin / Associated Press 2015 Michael Macor / The Chronicle 2016 Alex Brandon / Associated Press 2015 ?? Republican Reps. David Valadao of Tulare, left, and Kevin McCarthy of Bakersfiel­d have backed HR23 in Washington.
Jacquelyn Martin / Associated Press 2015 Michael Macor / The Chronicle 2016 Alex Brandon / Associated Press 2015 Republican Reps. David Valadao of Tulare, left, and Kevin McCarthy of Bakersfiel­d have backed HR23 in Washington.

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