Endangered Species Law & Policy

In a decision with important implications for the intersection of water rights and the Endangered Species Act (ESA), the federal district court in Santa Ana, California upheld the designation of critical habitat for the Santa Ana Sucker (catostomus santaanae) in Southern California. (A .pdf copy of the court's decision is available here.) The ruling is the latest in a decade-long fight over critical habitat for the fish that some have dubbed Southern California’s delta smelt. Louis Sahagun, Court Upholds Habitat Protection for Santa Ana Sucker, Los Angeles Times (Oct. 24, 2012).

The court rejected a broad challenge to the critical habitat brought by a group of Southern California water districts and municipalities. Among other challenges, the plaintiffs claimed that the Fish and Wildlife Service violated section 2(c)(2) of the ESA that requires the Service to cooperate with state and local agencies to resolve water resource issues in concert with the conservation of endangered species. The court held that section 2(c)(2) is a non-operative statement of policy that does not create any special procedural requirements.

For many years, water rights holders have argued that section 2(c)(2) imposes heightened obligations on the federal wildlife agencies to coordinate with water agencies to resolve conflicts between water rights and endangered species conservation. This decision is the first case to interpret section 2(c)(2). If affirmed on appeal, the decision will effectively eliminate the ability of water agencies to use this section to challenge ESA decisions.

The court rejected other claims that the critical habitat designation conflicted with federal laws governing flood control on the Santa Ana River. The court held that the claim was not ripe because the critical habitat rule did not impose any particular operation of flood control facilities.

The court also held that the Service’s decision not to exclude the Santa Ana River from the critical habitat designation under section 4(b)(2) was not reviewable, because the decision not to exclude area from critical habitat is committed to the Service’s discretion. The court held that while decisions to exclude areas from critical habitat are reviewable, Service decisions not to exclude areas from critical habitat are not reviewable.

Finally, the court rejected claims that the critical habitat designation violated the ESA's "best available science" requirement.