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Bear Valley Mutual Water Co. v. Jewell

ELR Citation: 45 ELR 20121
Nos. 12-57297, (9th Cir., 06/25/2015)

The Ninth Circuit upheld a 2010 FWS rule designating critical habitat for the threatened Santa Ana sucker, a small freshwater fish native to several California rivers and streams. In 2004, FWS approved a habitat conservation plan that encompassed nearly 1.26 million acres and provided participating agencies with a 75-year permit for the incidental taking of 146 protected species, including the sucker, in exchange for implementing conservation measures. In a subsequent 2005 rule and in a 2009 proposed rule, FWS excluded certain areas covered by local conservation plans from critical habitat designation. But in the 2010 rule, FWS changed course and designated as critical habitat several thousand acres of land that had previously been excluded. In response, several municipalities and water districts filed suit against FWS, arguing that FWS failed to cooperate with state and local agencies on water resource issues in violation of ESA §2(c)(2), that the critical habitat designation was arbitrary and capricious, and that FWS failed to prepare an EIS in violation of NEPA. But a district ruled in favor of the Service, and the Ninth Circuit affirmed. ESA §2(c)(2) does not create an independent cause of action. It is a subsection of the ESA's declaration of purposes and policy, and such declarations do not create substantive or enforceable rights. In addition, the critical habitat designations were proper. The 2010 rule fully addresses the impact on conservation plans and local partnerships, and it explains the changed circumstances requiring designation and articulates the reasons why the benefits of inclusion outweigh the benefits of exclusion. Nor does the designation violate the "No Surprises Rule" since it does not require permittees to undertake any additional acts for conservation. And because NEPA does not apply to the designation of critical habitat, FWS did not violate the Act by failing to prepare an EIS.