Water Suppliers Take Habitat Fight to SCOTUS

     (CN) – Twelve Southern California water suppliers have petitioned the U.S. Supreme Court for judgment in their case claiming that federal regulators’ designation of 9,000 acres as critical habitat for endangered species could adversely affect local water supplies.
     The suppliers claim that the U.S. Fish and Wildlife Service’s 2010 addition of the acres to the critical habitat for the Santa Ana sucker – a 3-inch-long fish that has been designated “threatened” since 2000 – will hamper water conservation and undercut their efforts to curb flooding in the Santa Ana river east of Los Angeles.
     They also accuse the regulators of not cooperating with the state and not preparing an environmental impact statement in violation of the National Environmental Policy Act (NEPA).
     A federal judge found for the government, and the decision was upheld in June by the Ninth Circuit, who ruled that the state “fully considered” local conservation plans as a “relevant impact,” and that “its conclusion that designation of critical habitat was nevertheless warranted is, consequently, permissible.”
     Now the suppliers are taking their case to the Supreme Court, petitioning for a writ of certiorari.
     In their petition, the suppliers say that “the Ninth Circuit has rendered a decision regarding the applicability of NEPA to the designation of critical habitat by the Fish and Wildlife Service under the Endangered Species Act that is in conflict with a decision on the same matter by the 10th Circuit.”
     The case they refer to is Carlton County Board of Commissioners v. U.S. Fish and Wildlife Service, in which the 10th Circuit held that “we do not believe that the ESA procedures have displaced NEPA requirements.”
     Greg Wilkinson, who represents the petitioners, said in a phone interview that the Ninth and 10th Circuits are “split” on the issue, and for that reason, he said “we think this is the kind of case the Supreme Court ought to be looking at.”
     The petition says that the case “raises an important issue of law concerning the enforceability of mandatory obligations set forth in statutory declarations of policy, generally, and the enforceability of the federal government’s obligation to cooperate with the states and with local government agencies to resolve water resource issues arising in connection with administration of the ESA.”
     Wilkinson said that there is a section of the ESA in which the intent of Congress was that federal agencies should cooperate with local agencies to conserve local resources in concert with the federal protection of endangered species.
     “The Ninth Circuit read that out of the act to say it’s a meaningless statement of congressional policy,” he said.
     According to the government’s own economic effect statement, Wilkinson said, the habitat designation stands to affect about a quarter of a million people.
     “If the Supreme Court takes it, it’ll be a horse race,” he said of the case. “There are a lot of issues in here about the relationships between various levels of government.”
     The government could not be reached for comment on Monday evening.

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