Habitat Boost for Santa Ana Sucker Endorsed

PASADENA, Calif. (CN) - Federal regulators need not defend their designation of several thousand acres in California as "critical habitat" for the Santa Ana sucker, the Ninth Circuit ruled Thursday.

A 3-inch-long fish whose large lips and small mouth makes it adept at leeching algae and invertebrates from river bottoms, the Santa Ana sucker has been designated "threatened" by the U.S. Fish and Wildlife Service since 2000.

Since regulators had initially excluded certain areas from its conservation plans for thee sucker's critical habitat, their decision to add 9,000 thousand acres to the habitat in 2010 quickly drew protest from several municipalities and water districts.

Contending that the move would hamper water conservation and undercut their efforts to curb flooding in the Santa Ana River, these groups accused regulators of not cooperating with the state, acting arbitrarily and capriciously, and not preparing an environmental impact statement in violation of the National Environmental Policy Act.

With the U.S. District Court ruling for the state, a three-judge panel of the Ninth Circuit affirmed Thursday.

Rejecting claims that the government did not sufficiently cooperate with state and local agencies on water-resource issues, the court noted that the pertinent statute "is a non-operative statement of policy that 'does not create an enforceable mandate for some additional procedural step.'"

The government's inclusion of land already covered by local conservation plans furthermore is a decision that is "always discretionary" and not subject to judicial review, the court found.

Nor was the government's designation arbitrary and capricious, because the Fish and Wildlife Service "fully considered" the local conservations plans as a "relevant impact," according to the panel's 36-page opinion.

"Its conclusion that designation of critical habitat was nevertheless warranted is, consequently, permissible," Judge Barrington Parker wrote for the court.

Parker also sidelined the districts' reference to the government's own "No Surprises Rule" - which keeps the Fish and Wildlife Service from increasing the cost of agreed-upon conservation measures.

Parker found as well that the government gave the district adequate opportunity to comment on its scientific citations for the habitat designations, and that regulators were right to designate "critical" areas unoccupied by the sucker, since those areas provide the necessary sources of water and coarse sediment for the fish.

Fish and Wildlife Service did not need to prepare an environmental impact statement for the designation because NEPA does not apply to "critical habitat" designations, the ruling states.

Neither side could be immediately reached for comment on Thursday.

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