Presidential memorandum reinterpreting biological opinion of the San Joaquin Delta does not carry authority of law, already challenged in court
By Paul Myers
BAKERSFIELD – Farmers thirsty for federal water turned out to Bakersfield last week. While President Donald Trump made his signature on a presidential memorandum appear to be watershed moment, the entire event was more show than substance.
All the while being flanked by valley congressmen Devin Nunes, Kevin McCarthy and Secretary of the Interior David Bernhardt, Trump’s presidential memorandum by it self doesn’t do much to increase water deliveries.
“This is not a statute, and it doesn’t even seem to be a presidential executive order…it’s really just a request, of course backed by the authority of the president, to the secretary of the interior…to reconsider the biological opinion [of the delta] which came from the national wild life service,” Fresno State political science professor Dr. Thomas Holyoak said.
Dr. Holyoak said that farmers shouldn’t count on reinterpreted opinions to provide them with the water they need in the future.
“Farmers should not be going to their bankers and say that they have one big water supply, so give me a loan,” Dr. Holyoak said.
The text of the memorandum states that the new framework for the biological opinion of the delta is expected to deliver more water to communities while using science and investments appropriately to protect affected species and their habitats.
“I direct the Secretary of the Interior and the Secretary of Commerce to build upon the success of the plan and [record of direction] by supplementing the resulting operations, consistent with applicable law, to make deliveries of water more reliable and bountiful. To help develop and deliver water supplies in the Central Valley of California,” the memorandum stated.
Latter stages in the text qualifies the power of the document to the point that it is all but ineffective.
“This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person,” the memorandum lists.
Nonetheless, Secretary Burkhardt issued a statement fortifying his confidence in the memorandum.
“President Trump gave the Department of the Interior and the Department of Commerce clear direction to move forward and provide water to California’s communities and farms,” Bernhardt said. “Today’s action furthers President Trump’s commitment to America’s hardworking farmers who need water to feed our nation.”
Governor Gavin Newsom was already saber rattling that he would challenge the opinion in court before Trump touched down in the Valley. Newsom made true on his promise and directed two state agencies and Attorney General Xavier Becerra to take the Trump administration to court. They claimed that the new water plan will put populations of Delta smelt, Chinook salmon and Central Valley steelhead at sever risk and violates federal environmental law.
Still, the federal department of the interior issued a statement on Thursday morning heralding Trump’s signature as a move toward greater water deliveries for farmers reliant on the Friant-Kern Canal.
“Thanks to President Trump’s commitment to delivering a more certain and reliable water supply to the west, the farmers, families and communities of the Central Valley will have a greater opportunity to thrive,” said Aurelia Skipwith, director of the U.S. Fish and Wildlife Service.
Perhaps more important than the memorandum was the politics of showing up in the Valley. Because presidential memoranda can be overturned by succeeding presidents, and do not carry the weight of law, the likely reason Trump arrived in the Valley during an election year was to help congressional legislators.
“This is not really going to change the presidential election but could be a support for Nunes who may be facing another serious race in November,” Dr. Holyoak said.
Devin Nunes, who faced his closest race as a congressman in 2018 against Andrew Janz, faces as semi serious opponent in Phil Arballo. However, Nunes has plenty more spending power stacking up $7.8 million cash on hand to Arballo’s $241,464.