Protection Of Fish Habitat Challenged By Local Water Agencies

Inland Empire water agencies Thursday notified the U.S. Fish and Wildlife Service that they will appeal the Oct. 23 decision of U.S. District Court Judge James V. Selna that approves the doubling of critical habitat area for the Santa Ana Sucker fish in Riverside and San Bernardino counties.

Judge Selna’s decision will be appealed to the Ninth Circuit Court of Appeals.

The Riverside County Flood Control & Water Conservation District along with 11 other local agencies, including Western Municipal Water District, which serves Elsinore Valley Municipal Water District, contend expansion of the critical habitat area for the Santa Ana Sucker will interfere with water allocation, water use and recharge efforts along the Santa Ana River, which they say is the principal source of local water for the area.

The 12 water agencies filed suit against the U.S. Fish and Wildlife Service in 2011 arguing that the decision to expand habitat was based on flawed science and without any attempt by the Service to comply with its obligations under a Multi-Species Habitat Plan for Riverside County or to “cooperate” with local agencies to resolve water resource issues “in concert with” the protection of endangered species, as required by federal law.

The water agencies also argued the USFWS failed to properly consider the effects on the human environment created by its decision in violation of the National Environmental Policy Act and that it failed to explain why an expansion of critical habitat is needed when the federal agency raised no issues with the existing Multi-Species Habitat Conservation Plan, which provides habitat protections for the Santa Ana Sucker and other endangered species.

"We continue to be troubled by the court's decision, which, if unchallenged, could set a legal precedent for federal agencies to ignore their prior commitments to land owners and local governments and regardless of the inconsistencies, contradictions, omissions or gaps in the science they use to support their arguments,” said Pat Milligan, president of the San Bernardino Valley Municipal Water District. 

Citing a 2004 study, the USFWS declared gravel and cobble substrate required for the endangered fish's survival had been drastically reduced since dam construction. Federal officials want higher volumes of water released to promote algae growth for the benefit of Sucker habitat.

The Tucson, Ariz.-based Center for Biological Diversity has been a driving force behind federal action.

The nonprofit sued the USFWS in 2007, arguing that the agency had failed to extend critical habitat to encompass stretches of the Santa Ana River and its tributaries where the fish population was plummeting.

A Wildlife Service spokeswoman said the critical habitat designation will not hinder agencies from drawing water from the Santa Ana or other areas where the Sucker spawns; rather, the designation provides an "additional layer of review" before developers or municipalities can proceed with making any changes along channels recognized as critical to a threatened species. --City News Service contributed to this report.