November 15, 2012

A "bear" of a decision for water users

By Damien M. Schiff Senior Attorney
Seven Oaks Dam, on the Santa Ana River

Last month, Judge Selna of the Central District of California rejected, in Bear Valley Mutual Water Co. v. Salazar, a challenge to the critical habitat designation of the Santa Ana Sucker, a “threatened” fish protected under the Endangered Species Act.  The plaintiffs, a collection of local governments, water districts, and flood control agencies, challenged the 9,000-acre designation on several grounds, among them that the Fish and Wildlife Service had failed to collaborate with local government before issuing the designation.  The plaintiffs also argued that the Service had given no reasonable explanation for its decision to rescind an earlier version of critical habitat which excluded the Santa Ana River watershed from the designation.

The plaintiffs’ principal position, supported by a Pacific Legal Foundation amicus brief, relied on two provisions of the Endangered Species Act designed to protect local governments and their constituents from high-handed federal regulation.  Section 2(c)(2) of the Act states: “It is . . . declared to the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.”  Similarly, Section 7(a)(2) of the Act requires that federal agencies consult with the Service if a proposed federal project may have an impact on the critical habitat of protected species, “after consultation as appropriate with affected States.”  The plaintiffs contended that these provisions required the Service to collaborate with them before designating critical habitat for the sucker.

PLF filed an amicus brief to support the plaintiffs.  Our brief argued in part that the court should interpret these provisions to impose a special obligation on the Service to confer with local water agencies, especially given recent cases where the Service had essentially ignored local interests, to disastrous effect.  We highlighted the justly maligned water cutbacks imposed because of the Delta smelt.  We also noted the burdens to flood control agencies caused by the Valley elderberry longhorn beetle.

Unfortunately, the district court rejected these arguments.  The court reasoned that these statutory provisions do not apply to critical habitat.  The court also held that these provisions are, at most, unenforceable policy; they do not impose legally binding requirements.  Finally, the court noted that the Endangered Species Act already contains adequate “notice and comment” opportunities for state and local governments as part of the critical habitat designation process.

If and when the plaintiffs appeal this precedent-setting decision, you can be sure that PLF will be there to support the ability of local governments and their constituents to adopt reasonable water and flood control policies, free of wrong-headed federal regulation.

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