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 ...

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