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Monday, October 29, 2018

President Trump Simply Must Grant Permanent Exemptions from the Endangered Species Act

Murphy & Buchal LLPAttorneys at Law
3425 SE Yamhill Street, Suite 100 Portland, Oregon 97214
James L. Buchal
telephone: 503-227-1011
fax: 503-573-1939 e-mail: jbuchal@mbllp.com

BY FIRST CLASS MAIL

October 25, 2018

Secretary Ryan Zinke 
Department of the Interior 
1849 C Street, N.W. 
Washington, DC 20240

Secretary Rick Perry 
Department of Energy
1000 Independence Ave., S.W. 

Washington, DC 20585

Chair (Nominee) Mary Neumayr 
Council on Environmental Quality 
730 Jackson Place, N.W. 
Washington, DC 20503

Secretary Wilbur L. Ross, Jr. 
U.S. Department of Commerce 
1401 Constitution Ave., N.W. 
Washington, DC 20230

Secretary Dr. Mark T. Esper 
101 Army Pentagon 
Washington, DC 20310-0101

Re: Effective Reform of Western Water Project Operations

Dear Sirs and Madam:

Last week’s Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water in the West misconceives the problems faced by the Administration, but provides an opportunity to make real advancements in the Administration’s agenda. The problem is not, as the Memorandum claims, that “fragmented regulation of water infrastructure will continue to produce inefficiencies, unnecessary burdens, and conflict among the Federal Government, States, tribes, and local public agencies that deliver water to their citizenry."

The problem is that a radical subgroup of “conservation scientists” has misused the Endangered Species Act (ESA) to cripple the operation of water projects all over the West, diverting water from real beneficial uses to utter waste imagined to benefit listed species. Each of the projects identified in the Presidential Memorandum has been snarled in decades of ESA litigation, a cancer destroying communities that rely upon the reliable supply and delivery of water and other benefits from Western water projects.

We are well past the point where the scientific process can be reformed. In California litigation over the delta smelt, a federal judge excoriated the testimony of federal fish scientistsas “not science,” “that of a zealot” and “incredible”. In the Klamath Basin litigation, the National Academy of Science had to be brought in to refute claims that water levels had to be raised to help endangered suckerfish by pointing out that the fish die-offs were worst when the levels were highest. In the ongoing litigation over Columbia River dams, where billions in dam improvements have probably made fish survival higher than in natural rivers, conservation scientists claim that only dam removal can assure the survival of listed salmon.

If you merely implement those parts of the President Memorandum calling for“environmental compliance requirements [to be] completed as expeditiously as possible, and in accordance with applicable law,” you will merely accelerate this War on the West. Each new generation of biological opinion further undermines the benefits of Western water projects, under an overzealous “precautionary principle” insisting that any attempt to store and allocate water for human use interferes with natural processes and must be abandoned in favor of natural water flows and undammed rivers. In substance, conservation scientists argue that the very existence of Western water projects jeopardizes the continued existence of listed species.

Acceptance of this premise is, however, entirely consistent with the only effective Executive action that can promote water supplies and other benefits of federal infrastructure in the West: granting permanent exemptions from the ESA, ending the decades of litigation and waste. The ESA provides that where operating projects “is in the public interest and is of national or regional significance,” the Administration can issue a permanent exemption from ESA compliance for project operations found to jeopardize the continued existence of listed species.

The decision is made by the Endangered Species Committee, and you are all members of this Committee, with the Secretary of Interior as Chair. The ESA exemption statute and its implementing rules provide an easy, effective and speedy means for you, acting as a Committee (with additional state appointees), to cut the Gordian Knot of ESA regulation crippling Western water supplies.

We therefore call upon you to expand the Presidential Memorandum’s command to “appropriately suspend, revise, or rescind any regulations or procedures that unduly burden . . .project[s] beyond the degree necessary to protect the public interest” by directing your agencies to implement the ESA’s exemption process for all of the Western water projects addressed in the Memorandum.

The Columbia-Snake River Irrigators Association has already provided a draft application for ESA exemption to the Secretary of Interior with respect to the Federal Columbia River Power System. Such plans can be easily be developed and implemented for the other projects as well, even within the thirty days provided in the Memorandum.

Sincerely,

James L. Buchal

Copies to:

Nicholas D. Pottebaum, Deputy Director of Intergovernmental Affairs, The White House 
Scott Cameron, Principal Deputy Assistant Secretary, Department of Interior
Todd Wynn, Director of Intergovernmental and External Affairs, Department of Interior 

Timothy Petty, Assistant Secretary for Water Policy and Science, Department of Interior 
Susan Combs, Acting Assistant Secretary for Policy, Management and Budget, Department of Interior
Karen Budd Falen, Deputy Solicitor, Department of Interior
Jeffrey Clark, Assistant Attorney General, Environmental & Natural Resources Division 

Doug Little, Deputy Assistant Secretary of Intergovernmental and External Affairs, Department of Energy
Dan James, Deputy Administrator, Bonneville Power Administration
R.D. James, Assistant Secretary of the Army for Civil Works
Aaron Dorf, Commander, U.S. Army Corps of Engineers, Portland District
Dave Mabe, Deputy Regional Director, U.S. Bureau of Reclamation
Dr. Darryll Olsen, Columbia-Snake River Irrigators Association
Kristin Meira, Pacific Northwest Waterways Association
Dan Keppen, Family Farm Alliance
Richard Marshall, Siskiyou County Water Users Association
Scott Corwin, Public Power Council Westlands Water District Metropolitan Water District of Southern California
Damien Schiff, Pacific Legal Foundation

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