A Little Bit of Factual Clarification on California Water

Yesterday, President Trump signed an executive order on California water management. It's a long and rambling order filled with directives, and rather than try to unpack everything, I'm going to try to clarify two issues that seem particularly important.

This order is not about delivering more water to the Los Angeles region. In the order itself, and in his public statements, President Trump has repeatedly described his order as an effort to get more water to Los Angeles. But the order, if implemented, would not enhance Los Angeles' water supplies. If anything, it might threaten them.

The basic reason is straightforward: President Trump is trying to get the Central Valley Project to pump more water, and the Los Angeles region is not part of the Central Valley Project's service area. Instead, as the United States Bureau of Reclamation's website explains, "[t]he CVP serves farms, homes and industry in the Central Valley, San Joaquin Valley and the San Francisco Bay Area." Most of that water goes to agriculture. 

The Los Angeles region does receive some water from the Central Valley, but that water is delivered by California's State Water Project, which is a separate water project. And that's where the potential threat to urban southern California arises. If the Central Valley Project pumps more water, that probably means less water will be available to the State Water Project. The executive order seems to anticipate this potential conflict; it specifically states that the California Department of Water Resources, which operates the State Water Project, is not to get in the way of the Central Valley Project's pumping. In other words, the order appears to anticipate sending more water to farmers, regardless not just of environmental laws but also of the needs of Los Angeles and other southern-California cities.

(The order isn't clear on this point, and another possibility is that the order anticipates that the federal government will commandeer state facilities and override state authority to manage those facilities. If that is the plan, the list of constitutional problems would be very long.)

The order cannot override environmental statutes. The order repeatedly calls for heightened water deliveries to Central-Valley agriculture, regardless of existing federal or state environmental laws (it focuses on protection of Delta smelt under the federal Endangered Species Act, but those protections are just one part of a broad suite of water-rights, water-quality, and species-protection laws that affect pumping levels). But the United States Constitution does not give the President that sort of authority. Article I of the Constitution gives lawmaking authority to Congress (other than the President's power to veto bills or sign them into law), and Article II gives the President the duty to faithfully execute the laws that Congress passes. That means that when a President purports to override acts of Congress, he is acting unconstitutionally.

The limits on executive authority extend to state laws as well as federal. In some settings, federal law can preempt state law, though the federal law must be enacted constitutionally rather than by executive fiat. But for California water, the Reclamation Act, which is governing legal authority for the Central Valley Project, requires the federal government to obtain and exercise its water rights in accordance with state law. No executive order can overturn or create exemptions to that requirement.

- Dave Owen