ENVIRONMENT: Santa Ana sucker case appealed to Supreme Court

From the Press Enterprise

ENVIRONMENT: Santa Ana sucker case appealed to Supreme Court

BY JANET ZIMMERMAN / STAFF WRITER

Published: Sept. 22, 2015 4:00 p.m.

The 12 Inland water providers that have petitioned the high court to reduce the amount of critical habitat designated for recovery of the Santa Ana sucker, a fish threatened with extinction, are:

Bear Valley Mutual Water Company in Redlands; Big Bear Municipal Water District; City of Redlands; City of Riverside; City of San Bernardino Municipal Water Department; East Valley Water District in Highland; Riverside County Flood Control and Water Conservation District; San Bernardino Valley Municipal Water District; San Bernardino Valley Water Conservation District; Western Municipal Water District in Riverside; West Valley Water District in Rialto; and Yucaipa Valley Water District.

A dozen Inland water providers that have long fought federal habitat protections for a small, algae-eating fish – the Santa Ana sucker – petitioned the United States Supreme Court on Tuesday to hear their case.

The agencies contend the U.S. Fish and Wildlife Service violated two federal environmental laws when it doubled the acreage of critical habitat – land considered crucial for recovery of a species – in 2010. The fish is threatened with extinction.

The habitat designation jeopardizes numerous water capture and groundwater recharge projects planned for the Santa Ana River, from its upper reaches at the Seven Oaks Dam near Highland to Prado Dam near Corona, they said. A critical habitat designation does not prohibit development, but it can restrict it.

One of the laws in question, the National Environmental Policy Act, known as NEPA, “requires you to look at the needs of everything – water, people – to try to find a balance. We believe that this decision in 2010 was not balanced,” said Doug Headrick, general manager at the San Bernardino Valley Municipal Water District, one of the agencies that filed the petition.

In 2010, the wildlife service designated 9,331 acres along the river in both counties and a few waterways in Los Angeles County as critical habitat. The water districts appealed the decision in federal court, but were denied.

Last year, the agencies asked the U.S. Ninth Circuit Court of Appeals to order the wildlife service to consider the impact of its decision on the human environment, to re-evaluate the needs of the fish using the best available science, and to cooperate and collaborate with state and local agencies on that evaluation.

The appeals court ruled against them in June, saying NEPA does not apply to the wildlife service.

Lawyers for the water agencies say that contradicts a ruling by the Tenth Circuit Court of Appeals in Denver, which has said the wildlife service must comply with NEPA.

“As a result, residents of Cheyenne, Wyo., Santa Fe, N.M., and Denver, Colo., all of which are within the Tenth Circuit, can compel the Fish and Wildlife Service to comply with NEPA when critical habitat is designated, while residents of Riverside or San Bernardino — or anywhere else in the western U.S. within the Ninth Circuit, cannot,” said Greg Wilkinson, an attorney representing water agencies with their petition. “This unequal application of the law is overdue for correction.”

The Supreme Court will decide whether to consider the case.

The water agencies also are focusing their case on an Endangered Species Act amendment that requires federal agencies to cooperate with local agencies to resolve water resource issues while saving species.

Water officials have objected to the critical habitat designation, saying many parts of the river never sustained the fish.

Environmentalists say expanding protected areas better ensures survival of the fish by pushing rocks and gravel the sucker needs for reproduction to downstream areas where it lives. The species exists primarily in a three-mile stretch of river south from Highway 60 in Riverside.

Ileene Anderson, a biologist with the Center for Biological Diversity office in Los Angeles, said she doubts the Supreme Court will agree to hear the water agencies’ case.

“Clearly the court’s rulings to date have been in favor of the critical habitat standing as designated. This is the last gasp in sending it to the Supreme Court where they don’t have to take up the matter at all,” she said. “It seems like the time would be better spent trying to recover the species rather than fighting it in court.”

Anderson’s group sued the wildlife service in 2002 for not designating critical habitat for the sucker as ordered by a court in 2000, when the species was listed as threatened.

Despite the lawsuit, the water districts and federal scientists are moving ahead with a habitat conservation plan to gain scientific knowledge and better protect the sucker. They conducted population studies in the river in Riverside last week.

Contact the writer: jzimmerman@pe.com or 951-368-9586