Adozen water agencies serving nearly 3 million Southern California residents have gone through with their threat to sue the U.S. Fish and Wildlife Service (FWS) over the expansion of critical habitat areas for the Santa Ana Sucker, a small fish that lives in several areas of the Santa Ana River.
And where does one file such a suit? In federal court in Santa Ana, of course
"The expanded critical habitat area for the Sucker is unnecessary and will assuredly lead to increased water costs for our customers," says Patrick Milligan, president of San Bernardino Valley Municipal Water District, in a statement from Santa Ana Sucker Task Force, which is what the water agencies are calling themselves. "The decision was based on sloppy science and a flagrant disregard for the requirements of the Endangered Species Act and other federal laws."
Specifically, the task force alleges in its suit that the Fish and Wildlife Service (FWS) critical habitat decision for the Sucker that was released in December 2010 violates the Endangered Species Act (ESA). The complaint includes specific impacts of that decision on local water, conservation and flood control agencies throughout western Riverside and San Bernardino counties.
But, as the Weekly reported in April, it was a lawsuit from those hell-bent on protecting the Santa Ana Sucker that led the FWS to implement the habitat expansion. The FWS established a critical habitat area in 2005 but, after being sued two years later by the Center for Biological Diversity (CBD), which also alleged violations of the ESA, the federal agency began a process that would result in a doubling of the previous habitat.
The Santa Ana Sucker Task Force acknowledges this in its release but also accuses FWS of failing to work "cooperatively" with state and local water agencies as required by the ESA and of basing "its decisions on unscientific survey data, unpublished reports that have not been peer reviewed as well as published reports that, ironically, contradict the Service's arguments." The task force also questions the apparent need of the FWS "to pacify" the Arizona-based CBD, which--as near as the water agencies can tell--has not been actively involved in efforts to conserve or protect the Sucker.
"As far as we know, the Center for Biological Diversity has never been an active participant in conservation efforts involving the Sucker, which makes their motives highly suspect," Milligan says in the statement, adding there is no record of CBD representatives participating in Santa Ana Sucker Conservation Team meetings that have taken place during the past decade.
If the Santa Ana Sucker habitat stands, the FWS will not be alone in a sort of conservation Catch-22. The task force says restrictions on pumping Southern California water will come at a time the agencies are under pressure to reduce their dependence on imports from the Sacramento-San Joaquin Delta, whose supplies are constrained due to federal protection of the Delta smelt.
The task force also claims the designation threatens an inland water recycling system dubbed the "Clean Water Factory" that the cities of Colton and San Bernardino are collaborating on. "The Service could require us to continue discharging so much into the Santa Ana River that we cannot economically use our recycled water for groundwater recharge," says Stacey Aldstadt, general manager of the City of San Bernardino Water Department, in a second task force statement. "This would be a tragedy because this is water we need to recharge our groundwater basins. So in their effort to improve habitat for the Sucker, the Fish and Wildlife Service could end up forcing us to import water from 500 miles away. It makes no sense."
The task force claims its lawsuit is the latest in a series of legal complaints "about the Service's failure to do its job," reads yet a third statement distributed by Douglas Headrick, general manager of the San Bernardino Valley Municipal Water District . The task force notes the FWS "is frequently sued by environmentalists, developers and other government agencies for making arbitrary decisions and failing to do its homework."
The statement includes many for-examples, including the 2006 Center for Biological Diversity vs. Bureau of Land Management case that challenged a FWS decision to exclude certain areas from a critical habitat designation for Peirson's milk-vetch. "The court concluded that the exclusion was arbitrary and capricious because it was based on an erroneous interpretation of the ESA. The court also concluded that critical assumptions made by the Service were not based on the factual record," reads the statement.
The task force includes 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.
ORIGINAL POST, APRIL 13, 7:16 A.M.: A dozen water agencies serving nearly 3 million Southern California residents have formally warned the U.S. Fish and Wildlife Service (FWS) that if the federal agency does not want to be sued, it must rescind the recent expansion of critical habitat areas for the Santa Ana Sucker, a small fish that lives in several areas of the Santa Ana River.
Unfortunately for the FWS, it was a lawsuit from those hell-bent on protecting the Santa Ana Sucker that led to the habitat being expanded.
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As Bart Simpson says, "You're damned if you do, and you're damned if you don't." Only in this case "dammed" works, too.
Douglas Headrick, general manager of the San Bernardino Valley Municipal Water District and member of the Santa Ana Sucker Task Force, tells the Weekly in an e-mail about the catch-22 the water agencies find themselves in.Southern California water agencies are struggling to improve "self-reliance and lessen dependence on water imports from the Sacramento-San Joaquin Delta," where restrictions are in place to protect the Sacramento River Delta smelt, Headrick says. So the agencies try to improve and utilize Santa Ana River water and, he fumes, along comes the FWS pressure to protect the Santa Ana Sucker in the form of the daunting-sounding "Final Rule."
"We estimate that the service's 'Final Rule' could result in a net loss of 125,800-acre-feet of San Bernardino Mountain water each year," Headrick writes. "That's enough water for more than 500,000 people."
Headrick claims the agencies "are successfully conserving the sucker and will continue to do so. Ironically, the Fish and Wildlife Service is hindering this positive environmental progress while destabilizing regional water supplies and the economy of much of inland Southern California, which depends on reliable, affordable water."
He is scheduled to testify Friday before the House Interior Appropriations Committee on behalf of the agencies, which include his water company and Bear Valley Mutual Water Co. in Redlands; Big Bear Municipal Water District in Big Bear Lake; the City of Redlands; the City of Riverside Public Utilities; the City of San Bernardino Municipal Water Department; East Valley Water District in Highland; Riverside County Flood Control and Water Conservation District; San Bernardino Valley Water Conservation District; Western Municipal Water District in Riverside; West Valley Water District in Rialto; and Yucaipa Valley Water District.
Their 60-day notice of intent to file suit alleges FWS failed to provide factual and scientific evidence to justify the expansion of the sucker's habitat area and to provide a recovery plan as required by the Endangered Species Act. The feds are further accused of ignoring reports on the habitat by various state and local water agencies.
The agencies are relying on a report of their own submitted by a Redlands economist who claims the habitat expansion "will literally shut down a good deal of the inland area's economy if allowed to stand."
John Husing, who has studied the region for 47 years, claims inland water providers could be forced to spend at least $2.9 billion in ratepayer money over the next 25 years for additional imported water from the Sacramento-San Joaquin Delta. Public documents issued by the FWS estimate the Inland Empire will lose only $12 million over 25 years.
Interior Secretary Ken Salazar and U.S. Fish and Wildlife Service officials received the formal notices of the intent to file suit Tuesday morning. By law, public agencies must do so 60 days before filing a lawsuit, under the theory that the federal agencies can address potential conflicts so suits do not have to be filed.
The FWS gets it in court from both sides. The Santa Ana sucker habitat was expanded after the Tucson, Arizona-based Center for Biological Diversity "repeatedly engaged in litigation to compel the U.S. Fish and Wildlife Service to designate critical habitat for the Santa Ana Sucker," reports the center's web site.
The federal agency had initially granted 21,000 acres of habitat but later slashed the area when it decided the impact to developers warranted removal of protections. A suit the center filed against the FWS in 2007 led the agency last year to protect a total of 9,331 acres, including the sucker's namesake river, the mighty Santa Ana.