Why did the U.S. Fish and Wildlife Service reverse its 2005 decision and double the critical habitat area for the Santa Ana Sucker in the Final Rule the agency issued late last year?
Was it a political decision rather than one based on the best available science, as required by the Endangered Species Act (ESA)?
Did Service employees worry over the realization that its Final Rule failed to comply with the National Environmental Policy Act (NEPA), the federal law that requires environmental protection agencies to consider the impact of their decisions on humans?
Answers to these and other questions could be contained in emails, memorandums and other documents in the Service’s possession.
Inland water agencies filed a Freedom of Information Act (FOIA) request with the Service on Dec. 29th 2010 in an effort to obtain these documents. But, the Service has continued to withhold responsive documents since late March of this year, and has refused to provide a final response as required under FOIA, despite the agencies’ repeated requests to produce the remaining documents.
“It all smells fishy,” stated Patrick Milligan, president of the San Bernardino Valley Municipal Water District. “Either the Service is woefully disorganized and cannot respond to Freedom of Information Act requests in a timely manner or the agency has documents it doesn’t want to reveal.”
Valley District has joined other Inland water districts in amending their Aug. 23 lawsuit pending in federal district court, which alleges the Service violated the ESA, NEPA and other federal laws when it doubled the critical habitat area for the Sucker. The amended lawsuit, filed Monday, alleges the Service has also violated the FOIA by refusing to release emails, memorandums and other public documents involving the decisions leading up to the issuance of its Final Rule for the Sucker.
Monday's action is the latest salvo in an ongoing legal battle between the Service and Inland water agencies, which allege that the doubling of Sucker habitat could threaten water supplies for 3 million residents of San Bernardino and Riverside counties.
The federal agency dramatically increased the critical habitat area for the Sucker along the Santa Ana River in December in a move water agencies fear will disrupt flood control, water conservation and groundwater recharge efforts affecting most of western Riverside and San Bernardino counties.
Water agencies have alleged that the Service failed to provide factual and scientific evidence to justify the expansion of the Sucker’s habitat area, as required by the ESA. Water agencies also 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.”
Water agencies reminded the Service in their lawsuit 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 noted in their complaint 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.
Agencies that are suing the Service over its Final Rule for the Sucker 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.