The Santa Ana Sucker, a Southern California native fish that's listed as Threatened under the U.S. Endangered Species Act (ESA), got a bit of a break this week in U.S Federal Court in its namesake city, as a judge tossed out a lawsuit on Monday by several Inland Empire water agencies who wanted protections for the fish overturned.
The suit by Riverside County Flood Control & Water Conservation District, the San Bernardino Valley Municipal Water District, and ten other agencies sought to have an expansion of designated critical habitat for the fish thrown out, claiming that the modest protection afforded by the designation would cause catastrophic economic damage to the Inland Empire area.
The Santa Ana sucker is a smallish, olive-drab fish six inches long at most that eats algae in rocky pools on Southern California rivers. Originally found throughout the Santa Ana, San Gabriel, and Los Angeles River watersheds, it's now found in just a few stretches of stream -- mainly on the Santa Ana River, but also in some stretches of the San Gabriel River and Big Tujunga Creek.
The sucker is in trouble because we've radically altered the streams it lives in and the watersheds that support them. The fish evolved to cope with the highly seasonal flows of Southern California streams, which can nearly dry up in summer and fall to become dangerous torrents in the rainy season. Many freshwater fish have trouble coping with such irregular flows, which can scour out habitat and then strand fish in declining pools. Santa Ana suckers have lived for millennia in these conditions that would prevent other fish from thriving.
Not unlike trout in more constant streams, suckers spawn in gravel beds under clear-flowing stretches, grow through their larval stages in stream channels shaded by vegetation, and shelter as adults in deep pools on the upstream sides of boulders. Flood control dams and channelization destroy the natural stream cycles that have maintained sucker habitat in Southern California streams, and the fish's population has crashed as a result: the species' numbers are now around 5% what they were in the 1970s.
One of the biggest blows to the Santa Ana sucker was the construction in the 1990s of the Seven Oaks Dam, a flood control project on the Santa Ana River in the foothills of the San Bernardino Mountains. That dam dried up seasonal flooding on the river downstream, devastating the sucker's habitat.
The sucker was listed as Threatened by the U.S. Fish and Wildlife Service (USFWS) in 2000. USFWS suggested designating more than 20,000 acres in Southern California as critical habitat for the fish in 2004, but slashed that to 8,305 acres in 2005 under pressure from developers and water agencies. The environmental group Center for Biological Diversity (CBD) filed suit in 2007 to expand that designation, and USFWS and CBD reached a settlement in 2010 to add a bit more than 1,000 acres to the fish's designated critical habitat. It's that settlement that water agencies sued to overturn in 2011, and it's that 2011 suit that was tossed out by U.S. District Judge James V. Selna on Monday in Santa Ana.
It's worth taking a look at this point at just what it was the water agencies were objecting to. Under the ESA, federal agencies can designate critical habitat for species listed as Endangered or Threatened in order to enhance the possibility of recovery of the species. critical habitat includes areas thought to be crucial to the continued existence of the species, and may include areas where the species does not currently exist.
Despite frequent complaints from industry about overreaching in critical habitat designation, the agencies drawing up critical habitat for a species -- USFWS for terrestrial and most freshwater species, and NOAA Fisheries for marine and anadromous species -- are required by law to consider economic impacts as they draw their maps.
Though opponents often describe critical habitat designation as the federal government "locking up land," the protections designation offers are actually rather meager. Critical habitat designation has no effect whatsoever on projects with no federal involvement -- that is, projects on private or non-federal public land that aren't being paid for with federal funds. As Fish and Wildlife says in a fact sheet on critical habitat:
Only activities that involve a Federal permit, license, or funding, and are likely to destroy or adversely modify the area of critical habitat will be affected. If this is the case, we will work with the Federal agency and, where appropriate, private or other landowners to amend their project to allow it to proceed without adversely affecting the critical habitat. Thus, most Federal projects are likely to go forward, but some will be modified to minimize harm to critical habitat.
In other words, critical habitat designation doesn't impede developers or their allies from increasing their bank balances to the detriment of endangered species: it merely puts some limits on how easily they can use your federal tax dollars to help them do it.
Reaction to the dismissal from the water agencies was swift. "We are obviously troubled by the court's decision, which appears to give free reign to federal agencies to interpret scientific information how they see fit, regardless of the inconsistencies, contradictions, omissions or gaps in the data they use to support their arguments," said Douglas Headrick of the San Bernardino Valley Municipal Water District. Headrick criticized the decision as support for USFWS' kowtowing to CBD -- ironic given that CBD's role essentially consisted of restoring less than a tenth of the acreage cut in the USFWS' kowtowing to water agencies.
The water agencies are concerned that they may be "forced to maintain stream flows" to support the Santa Ana sucker's habitat. That complaint is telling. You could just as easily phrase that as "prevented from taking quite so much water away from the fish in the first place."
It's worth noting that the Orange County Water District (OCWD), which occupies the downstream end of the Santa Ana River and accounts for more than 700 acres of the Santa Ana sucker's critical habitat, didn't join in the lawsuit challenging the minor critical habitat expansion. "We've been able to work collaboratively with the Fish and Wildlife Service," Greg Woodside of OCWD's planning and natural resources department, told the Orange County Register's Pat Brennan last year. "We did not see this as a problem for us."
The O.C. is hardly a hotbed of radical environmentalism, and its water companies are not above proposals to take water away from wildlife for us in lawn sprinkling. And thus the San Bernardino Valley Municipal Water District and its 11 fellow litigants might consider this: when you stake out a position on an environmental issue that puts an Orange County water agency on more or less the same side as the Center for Biological Diversity, you are most definitely doing it wrong.
Chris Clarke is an environmental writer of two decades standing. Director of Desert Biodiversity, he writes from Joshua Tree regularly at his acclaimed blog Coyote Crossing and comments on desert issues on KCET weekly. Read his recent posts here.
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