Twelve water agencies serving nearly 3 million residents in San Bernardino and Riverside counties formally warned the U.S. Fish and Wildlife Service that they intend to sue the federal agency unless it rescinds its recent expansion of critical habitat areas for the Santa Ana Sucker.

“Water agencies are successfully conserving the Sucker, and will continue to do so,” said Douglas Headrick, general manager of San Bernardino Valley Municipal Water District. “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.”

Headrick is also scheduled to testify Friday before the House Interior Appropriations Committee on behalf of Southern California water agencies whose water supplies are threatened by the Services’ “Final Rule” involving critical habitat for the Sucker.

The federal agency dramatically increased the critical habitat area for the Sucker along the Santa Ana River in December in a move that water agencies fear will disrupt flood control, water conservation and groundwater recharge efforts affecting most of western Riverside and San Bernardino counties.

In their 60-day notice of intent to file suit, water agencies highlight the fact that the Service failed to provide factual and scientific evidence to justify the expansion of the Sucker’s habitat area, as required by the Endangered Species Act. Water agency officials assert that the studies cited by the Service to justify its decision are inconclusive at best, and at worst, contradict the Service’s arguments for expanding the critical habitat area.

In 2005, the Service announced a habitat conclusion that existing Sucker conservation efforts undertaken by local water agencies in collaboration with the State Department of Fish and Game were sufficient and that expanding critical habitat areas for the endangered fish was not essential for the conservation of the species and “would provide little benefit to the Santa Ana Sucker.”

“The Final Rule fails to provide a rational explanation of why the Service’s prior conclusion is no longer valid and why the designation of lands already protected under local conservation plans is necessary just five years later,” water agencies wrote in their 60-day notice letter.

Water agencies also reminded the Service that they have spent the past 10 years successfully developing and implementing a Santa Ana Sucker Conservation Program that is already working to recover and restore habitats for this endangered species in collaboration with the California Department of Fish and Game.

The program has produced significant research, including reproductive monitoring surveys, the development of population estimates, increased project management, habitat surveying and mapping as well as invasive species removal.

Water agencies also note that the Service has expanded the critical habitat area for the Sucker without having a recovery plan to provide guidance in the designation of critical habitat, as required by the Endangered Species Act.

In their 60-day notice, water agencies said the Service cited a 2004 study co-authored by John Humphrey, Ph.D., P.E., Wesley Blood, Ph.D., and Roy Leidy, C.F.S. as a basis for its decision to expand the critical habitat area for the Sucker by claiming that the input of gravel and cobble substrate needed for the Sucker’s survival has decreased since the construction of Seven Oaks Dam. But the study itself contradicts the Service’s claims.

This 2004 study states, “Given that the best available scientific data indicate that substrates suitable for use by the Santa Ana Sucker will continue to be amply provided for in a number of watersheds in the region, even with the Seven Oaks Dam in place, and even accounting for the impacts of urbanization, flood control, water spreading basins, and other sediment sinks, there is no factual basis for designating the main channel of the Santa Ana River, Mill Creek or City Creek or any other upstream tributary not occupied by the sucker as critical habitat based on the need for sediment transport from source areas.”

Lack of cooperation

In addition to Fish and Wildlife Service’s misquotes and misrepresentations of recent studies of Santa Ana River flows and the Santa Ana Sucker, water agency officials are deeply concerned about the Service’s lack of cooperation with state and local agencies in managing inland water resources, as required by the Endangered Species Act. “This is very disappointing,” commented Headrick, “especially in a watershed that is otherwise known for its exemplary collaboration among all government agencies involved in water.”

Water agencies reminded the Fish and Wildlife Service that the Endangered Species Act requires the Service to “ ‘cooperate with state and local agencies’ in resolving potential conflicts between the needs of endangered species and the state’s management of their water resources.”

However, prior to adopting its “Final Rule” designating an expanded critical habitat area for the Sucker, the Service merely provided state and local agencies an opportunity to submit written comments, which the Service then generally did not incorporate into the Final Rule.

Water agencies told the Service, for example, that the California Water Resources Control Board specifically considered and rejected mandating the release of water from Seven Oaks Dam to provide habitat for the Sucker and other native fishes. The Service, however, did not point to any flaw in the State Water Board’s reasoning or any data that might alter the State Water Board’s conclusions.

The 60-day notice contains numerous other examples of information that the agencies provided to the Service that ultimately was not considered or addressed in its Final Rule.

Inland communities and water agencies also objected, in their 60-day notice letter, to the Fish and Wildlife Service’s attempts to override a 2009 decision by the California State Water Resources Control Board to grant San Bernardino Valley Municipal Water and Western Municipal Water District the right to capture previously unallocated stormwater runoff from the San Bernardino Mountains and use it for groundwater recharge, storage and direct delivery to inland water agencies.

Inland water agencies served Interior Secretary Ken Salazar and U.S. Fish and Wildlife Service officials with formal notice of their intent to file suit this morning. Public agencies are required by law to provide the federal government with 60 days notice if they plan to name a federal agency in a lawsuit. In theory, the requirement gives government agencies a chance to address potential conflicts so that a lawsuit ultimately does not have to be filed.

Agencies that co-signed that 60-notice include Bear Valley Mutual Water Company in Redlands; Big Bear Municipal Water District in Big Bear Lake; City of Redlands; City of Riverside Public Utilities; 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.