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Appeal asks the high court to sort out the intersection of the nation’s endangered species and environmental policy laws.

RIVERSIDE, Calif. - Two cities and 10 water agencies will file a petition for writ of certiorari in the U.S. Supreme Court on Tuesday, asking the high court to sort out the intersection of the nation’s endangered species and environmental policy laws. The petition by Best Best & Krieger LLP, which is serving pro bono as lead attorney on behalf of the petitioners, stems from a Ninth U.S. Circuit Court of Appeals decision over the designation of the so-called "critical habitat" for the threatened Santa Ana sucker — a small species of fish residing in the Santa Ana River. The lower court sided with the U.S. Fish and Wildlife Service in June, finding that adoption of a 2010 rule under the Endangered Species Act that doubled the size of the habitat of the fish, without consideration of the impacts of the designation on the human environment, did not violate the National Environmental Policy Act.

The agencies argue in the petition that the rule violates NEPA because the designation, itself, causes environmental impacts that were never examined by the FWS, including impaired water rights, reduced local water supplies, potential impairment of flood control efforts along the Santa Ana River and imposes greater pressure for increased exports from the Sacramento-San Joaquin Delta. In addition, the petitioners argue, the FWS failed to "cooperate with state and local agencies" to "resolve" water resource and species protection issues "in concert" in developing the habitat designation as required by the ESA and, for that reason, also violated the terms of that statute.

The petition asks the Court to answer two questions:

1. Whether the provisions of the ESA "displace" the provisions of NEPA or otherwise render NEPA analysis unnecessary, thus eliminating the requirement of environmental review when the FWS adopts a designation of "critical habitat" that has the potential to significantly affect the human environment.

2. Whether Section 2(c)(2) of the ESA is a meaningless, non-operative statement of policy that fails to create any substantive or enforceable rights regarding cooperation by FWS with state and local governmental agencies to resolve water resource issues arising from administration of the ESA in concert with conservation of endangered species.

The bottom-feeding freshwater fish found only in California was listed as a threatened species in 2000. In 2010, the FWS reversed a 2005 critical habitat designation that had excluded areas along the Santa Ana River that are unoccupied by the species or are already protected by the Western Riverside County Multi-Species Habitat Conservation Plan and, instead, included unoccupied areas below Seven Oaks Dam near Mentone, as well as areas covered by the MSHCP, to create thousands of acres of new critical habitat areas along the River. Much of the acreage is dry the vast majority of the time and is already protected through local efforts, and the designation dramatically limits the ability of local water agencies and municipalities to use locally captured runoff to recharge groundwater aquifers. Instead, the intent of the designation is to use precious local water supplies to simply push rocks and gravel to downstream areas actually occupied by the fish. The petitioners believe the environmental impacts of this wasteful use of local water supplies should have been considered by the FWS — but, were not — before the designation was adopted. They also argue that the FWS should have — but, did not —cooperate with local water suppliers in the designation process, as the ESA requires.

The BB&K team includes Gregory Wilkinson, Charity Schiller and Kira Johnson. The case is Bear Valley Mutual Water Co., et al v. Sally Jewell, et al, case number 12-57297, in the U.S. Court of Appeals for the Ninth Circuit.

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.BBKlaw.com or follow @BBKlaw on Twitter.