Making Sense of NOAA's Wildfire Announcement

by Dave Owen

August 10, 2018

Originally published on Environmental Law Prof Blog.

Secretary of Commerce Wilbur Ross just released a statement directing NOAA to "facilitate" water use to respond to California's wildfires (the statement follows several tweets in which President Trump implied that the cause of California's wildfires was the state's ill-advised decision to let some of its rivers flow downhill to the ocean). Because I've already seen a few befuddled headlines about what this all means, I thought a short post explaining a few key points about what NOAA can and can't do here would be helpful.

  1. Importantly, NOAA does not itself manage reservoirs, forests, or firefighting equipment. It just regulates activities that might harm threatened or endangered salmon (and other oceanic or diadromous species). So headlines saying that Secretary Ross ordered NOAA to "use" water to fight fires are not accurate. Instead, he has ordered NOAA to look favorably upon the requests of other federal agencies to use water that might otherwise have been allocated to fish protection. 
  2. NOAA also does not have general water management authority in California. Instead, the California State Water Resources Control Board, a state agency, is the primary regulator of water rights, including rights held by the United States Bureau of Reclamation. Consequently, NOAA does not have authority to just order that water be devoted to firefighting.
  3. This statement has no legal meaning. As a legal matter, NOAA cannot waive the Endangered Species Act. Agencies cannot repeal statutes, even in emergencies, though people will sometimes understand if agencies cut corners when human lives are at stake. Federal water withdrawals of the kinds contemplated in the order therefore are legal only if they do not unlawfully jeopardize the continued existence of listed species, adversely modify their critical habitat, or take those species. Neither an agency administrator's statement nor a presidential tweet erases those statutory obligations.
  4. Firefighters' water access isn't the problem. As already reported elsewhere, California officials have rejected claims that their firefighters lack access to sufficient water. So have independent scientists. This announcement isn't really about fighting fires. Instead, it's about using California's troubles to score a few political points. Indeed, if fighting fires is really the Administration's central priority and a lack of firefighting water really is the problem, we might expect to see another announcement that the Bureau of Reclamation, which delivers billions of gallons of water to farmers, will be redirecting much of that water to the firefighting effort.  But don't hold your breath.
  5. The Department of Commerce is not doing everything it can to help. In his statement, Secretary Ross stated that "the Department of Commerce is doing everything it can to help" with the fires. That is false. Neither Secretary Ross nor anyone else in the President's cabinet, nor the President himself, is taking one of the most important steps to address wildfires. Fires are becoming more intense for a variety of reasons, but one is climate change, which is making much of the West hotter, dryer, and more prone to fire. If Secretary Ross were actually doing everything he could to help, he would be loudly advocating for policies to respond to climate change, and he would be condemning policies, like the recent proposal to weaken pollution standards for motor vehicles, that will make climate change worse.

Lastly, an interesting tidbit about Trump's tweets: they included a claim that California had erred by passing laws that allowed some of its rivers to flow toward the sea, rather than being pumped into the Central Valley. That's an odd assertion to make in a tweet about fires; moving water out of northwestern California isn't a very good way to fight fires in northwestern California. I also wonder if Trump is aware of the original source of the laws he is lambasting. If he has a coherent idea about the laws he's referring to, then he's probably talking about decisions, made decades ago, to designate California's north coast rivers as wild and scenic, which precluded the construction of dams and water-diversion works (other than a diversion from the Trinity River). The governor who signed those laws into law? Ronald Reagan.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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