“Putting People Over Fish” Update: Trump’s New Executive Order on California Water and Challenges for Endangered Species Act

On January 24, 2025, following President Trump’s trip to tour the recent fire damage in Los Angeles, the administration issued a new executive order (EO) framed as a response to those fires. The EO, “Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas,” directs “[t]he Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Secretary of Commerce, the Secretary of the Interior, and the Secretary of Agriculture … to ensure adequate water resources in Southern California” by increasing water flows from Northern California to Southern California.

This new executive order came on the heels of Trump’s first-day memorandum, “Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California.” That memorandum directed the Secretaries of Commerce and the Interior to develop a plan to direct more water from the Sacramento-San Joaquin Delta in Northern California to the Central Valley. (You can read more about this memorandum in our Blog post.)

This is not the first time that water supply in California has attracted President Trump’s attention. The Eastern District of California enjoined the implementation of a similar initiative by the prior Trump administration in 2020 in response to a challenge brought by California’s then-Attorney General, Xavier Becerra. Following President Trump's 2018 version of the “Putting People over Fish” memorandum, entitled "Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water in the West,” the National Marine Fisheries Service and the U.S. Fish and Wildlife Service in 2019 issued biological opinions enabling additional water exports from the San Joaquin Delta. The U.S. Bureau of Reclamation adopted the 2019 biological opinions in an Environmental Impact Statement in December 2019 and then a Record of Decision in early 2020. Becerra’s lawsuit challenged the legality of the 2019 biological opinions under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA).

On December 20, 2024, at the tail-end of the Biden administration, and following negotiations with the state of California, the U.S. Bureau of Reclamation issued a new Record of Decision entitled “Long-Term Operation of the Central Valley Project and State Water Project.” This plan to manage the Central Valley Project (CVP) and San Joaquin Delta facilities of the State Water Project (SWP) focused on balancing water delivery for human use with environmental concerns, including the protection of endangered fish species.

Together, the January 20, 2025 memorandum and the January 24, 2025 executive order seek to roll back the rules finalized at the end of the Biden administration. Specifically,  the new EO directs the Secretaries of the Interior and Commerce to “immediately take actions to override existing activities that unduly burden efforts to maximize water deliveries” including “those consistent with the ‘No Action Alternative’ in the Final Environmental Impact Statement issued November 15, 2024, by the Bureau of Reclamation on Long-term Operation of the Central Valley Project (CVP) and State Water Project (SWP).” The directive explicitly contemplates expediting “any exemption under the Endangered Species Act of 1973” and, for each water project implicating the ESA and NEPA, to “develop a proposed plan … to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden such projects.”

Although the January 24, 2025 EO is new, this is hardly the first clash between water management projects in California and the imperatives of environmental laws, including the ESA and California Endangered Species Act. In those instances, courts have consistently found that the requirements of the ESA must prevail. For example, protections for the delta smelt’s habitat in the Sacramento-San Joaquin Delta have resulted in the diversion of less water for agriculture and urban use.

While the Trump administration has yet to develop any specific plans in response to Trump’s new EO, on January 31, 2025, the U.S. Army Corps of Engineers did open two dams in central California which released roughly 2.2 billion gallons of water from those reservoirs. News outlets covering this release point out that the additional water neither serves agricultural interests due to the timing of the release, nor the interests of Southern California as the water is not expected to reach the region.

Of course, any final actions to alter the management of the CVP and SWP or otherwise to implement the new EO likely will be challenged in court by the state of California or non-state parties. As always, you can stay tuned to Arnold & Porter’s Environmental Edge for future updates on California’s water wars and its wider implications.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.