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Bush Administration's Regulatory Rollbacks Could Destruct State-Federal Cooperation

Apparently emboldened by political success in the mid-term election, the Bush administration has become more aggressive in its efforts to alter strict Clinton-era environmental protection policies. In California, strong state laws and a political scene still dominated by Democrats could hold the line on many issues, especially protection of wetlands and endangered species. But on issues in which active federal involvement is crucial, such as water and public lands policy, a major conflict could be arising. Indeed, California is likely to provide a stern test for the Bush administration's stated philosophy of returning power to state and local governments. Although rural counties, landowners, and farmers will no doubt welcome the Bush approach, the state government's strong pro-environment stance could serve as a controversial counterpoint. There is little question that the latest moves leave behind perhaps permanently the state-federal cooperation on natural resource issues that has flourished for more than a decade. In fact, many of the state-federal efforts now being rolled back were initiated during the first Bush administration, from 1989 to 1993, when both the president and the governor of California were Republicans. Since the election, the administration has taken several significant steps that indicate a more aggressive approach to environmental policy. Here are a few highlights: The administration has issued a new rule that essentially turns regulation of isolated wetlands -- including small streams and vernal pools -- over to state governments. This rule interprets a 2001 U.S. Supreme Court wetlands ruling extremely broadly. The administration has issued a new rule that will make it easier for state and local governments to move forward with claims to take over wilderness roads on national forest and Bureau of Land Management property. This rule could permit San Bernardino County, among others, to take possession of thousands of miles of wilderness roads that provide access to isolated areas. The Pentagon is moving forward with new plans to ask Congress for relief from environmental laws on military bases. A similar request failed last year, but with an Iraq war in the offing and all of Congress now in Republican hands, a different reception seems likely. The administration continues to starve Cal-Fed financially, arguing that the massive state-federal effort to restore the ecological health of the San Francisco Bay-Delta region requires federal budget reauthorization. It is difficult to know how much of a target California is in these efforts or whether the administration has a political goal in mind for the state. The conventional wisdom is that California is lost to Republicans, even at the presidential level, for the foreseeable future. And state environmental policy is likely to take up much of the slack. At the same time, however, Californians will likely play an important role in determining how the administration's efforts play out, particularly on water policy. Anne Veneman of Modesto is the secretary of Agriculture. The Interior Department's point person on Cal-Fed is Jason Peltier, who as director of the Central Valley Project Improvement Association was one of the leading opponents of the 1992 legislation that loosened valley farmers' grip on California water. And the wild card perhaps one the administration wishes it did not have is Rep. Richard Pombo, a Republican from San Joaquin County who recently leapfrogged over several more senior House members to become chairman of the House Resources Committee. Pombo has been an ardent opponent of environmental protections, especially those regarding endangered species. His hard-edged style is in keeping with the House leadership but does not reflect the Bush approach, which generally masks strident policy action in gentle, or even no, rhetoric. The new wetlands rule, advance notice of which was issued on January 10, provides insight into the administration's approach to interpreting the U.S. Supreme Court's ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (see CP&DR Legal Digest, February 2001). The Supreme Court ruled that the use of an isolated wetland by migratory birds cannot be the sole basis for federal jurisdiction over the wetland. Under the new proposed rule, the Bush administration has instructed field staff from the Army Corps and the Environmental Protection Agency not to assert jurisdiction over wetlands that are either located in a single state or isolated from a navigable waterway. The ruling is likely to have less impact in California than elsewhere because of overlapping regulations. Many wetlands projects are also subject to state regulations, including state endangered species laws. For example, vernal pools the seasonal puddles located mostly in the Central Valley that have complicated development of many projects, including the new University of California campus in Merced would still be subject to considerable scrutiny because of the presence of fairy shrimp, a federally listed endangered species. The Pentagon's action could have a more significant effect, given the fact that federal military bases are not subject to state law. Congressional debate last year focused on Camp Pendleton, a Marine training base in southern Orange County that has also served as a key component in the regional efforts to protect the California gnatcatcher and a variety of other endangered birds -- an effort that has taken place mostly under the auspices of the California Endangered Species Act. Most of Pendleton, as well as land at Miramar Marine Corps Air Station in San Diego, could eventually be designated as critical habitat. Under the Pentagon's legislative proposal, military bases would be exempt from critical habitat designation under the Endangered Species Act, provided they are covered by natural resources management plans prepared under the Sikes Act, a separate federal law that permits the Pentagon and the Department of the Interior to work together on such plans. Environmental groups such as the Natural Resources Defense Council claim the Sikes Act's provisions are not stringent enough and will likely oppose the Pentagon's efforts again this year. Then there's Cal-Fed, the ongoing multi-agency effort to improve the San Francisco Bay-Sacramento Delta water system. Dating back to the Wilson-Clinton days, when state and federal resource managers began working cooperatively, Cal-Fed remains an effort of more than 20 different state and federal agencies. However, the Bush Administration has cut Cal-Fed funding from $30 million to $15 million in the current budget year. Despite efforts by both Republican and Democratic members of Congress from California, Congress has not reauthorized the Cal-Fed program. This has led to criticism from groups such as Taxpayers for Common Sense, an advocacy group that has called the Cal-Fed appropriations a pork barrel that needs to be re-examined so that it is "not just a rehash of outdated water storage projects from years past." So most of the Cal-Fed burden will apparently fall on the state, which has authorized a wide variety of Bay Delta-related improvements in recent bond issues, especially Proposition 50, which passed in November and contains more than $300 million for Bay-Delta projects. What remains to be seen is whether the state-level regulatory and spending programs can hold together the efforts that have been undertaken jointly with the federal government during the last decade. From Cal-Fed to Southern California habitat preservation planning, state-federal cooperation lay at the core of many of efforts. With the Bush administration, the Pentagon and perhaps Congress pulling out of the partnership and the state facing a budget crisis environmental advocates in Sacramento may not be able to hold the dike.
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