Threatened Sucker Fish, Strangles Water Supplies

Published November 30, 2015

The Santa Ana sucker, a small, bottom-feeding fish residing in California’s Santa Ana River, is playing havoc with the region’s water supply, resulting in a group of cities and water districts asking the United States Supreme Court to require the U.S. Fish and Wildlife Service (FWS) to conduct a National Environmental Policy Act (NEPA) analysis when it takes regulatory actions under the Endangered Species Act (ESA). 

In 2010, the FWS expanded the threatened fish’s critical habitat by 1,000 acres. The newly added habitat included long established dams and water diversion facilities created to manage floods and provide irrigation and drinking water. The plaintiffs complain the suckers expanded habitat limits their ability to draw water, manage floods and requires the release of large amounts of water in an attempt to move gravel and rocks downstream to improve the sucker’s habitat, water that petitioners argue is needed by local residents. 

Does the National Environmental Policy Act Apply?

The petitioners in Bear Valley Mutual Water Company v. Jewell argue the FWS should have considered the critical habitat designation’s impact on the human environment under the National Environmental Policy Act, or NEPA. 

While NEPA calls on agencies to analyze the environmental impact of every major federal action significantly affecting the human environment, FWS contends that critical habitat listings under the Endangered Species Act do not require a NEPA analysis. The Ninth Circuit Court of Appeals sided with FWS, prompting the water districts’ appeal to the Supreme Court. 

Attorney Greg Wilkinson, who is representing the petitioners, says FWS should be required to conduct a NEPA analysis when designating critical habitats. “We’re just asking that this agency comply with NEPA like every other federal agency is obliged to comply,” Wilkinson said.  

Wilkinson notes that San Bernardino alone could lose up to 25,000 acre-feet of water annually due to FWS’ actions. He says a NEPA analysis could have resulted in better resource management, for instance alternative ways of transporting that gravel without using valuable water. “They’ve never looked at any alternatives. They never looked at, for example, habitat restoration. They never looked at the possibility of physical transport in trucks of gravel and rocks. Instead, they just want to use the water to push rocks and gravel downstream.” Wilkinson says such considerations, as well as the impact on humans, would be considered under a NEPA analysis. 

Reverse NEPA?

Some commentators are calling the case a “reverse NEPA” lawsuit, as NEPA is most commonly used to promote environment protection efforts, not limit them. But Wilkinson says the characterization is misleading. 

“There’s nothing reverse about this,” he says. “It’s NEPA. It’s what NEPA requires. There aren’t two different standards under NEPA — one that applies if you’re building something that the Sierra Club doesn’t like and another that applies if it’s something the Sierra Club promotes.” 

“These agencies ought to be held to the same standards that other federal agencies are held to,” says Wilkinson. 

Courts Split on NEPA

Notably, not all courts agree with the Ninth Circuit. In a separate case, the Tenth Circuit has ruled ESA actions require NEPA analysis. As a result, there is split in the courts, resulting in what Wilkinson calls a “patchwork quilt of application of the National Environmental Policy Act” for critical habitat designations and different legal standards from state to state. “It very much depends on where you live in terms of what protections you get, and that is not the way the law is supposed to work in this country.” Such splits in lower courts’ rulings often garner a review by the Supreme Court.

Collaboration with Local Agencies

In addition to their NEPA claim, petitioners charge FWS failed to cooperate with local agencies in resolving water issues, violating the ESA requirements, “that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.” 

Wilkinson sees the language as a recognition by lawmakers that the ESA could impair state and local water management. “There’s no other provision in the ESA like that, and this was directed specifically at the subject of water resources,” he says. Yet, the Ninth Circuit called the ESA language a mere policy statement failing to create substantive rights.

Ann N. Purvis, J.D. ([email protected]) writes from Dallas, Texas.