LUBBOCK, Texas --It's one fish story that won't go away...
In mid March, the Sierra Club and the Southwest Center for Biological Diversity filed a lawsuit in New Mexico seeking to require immediate final regulatory action on the proposed U.S. Fish and Wildlife Service (USFWS) rule to list the Arkansas River shiner as an endangered species.
The plaintiffs contend that U.S. Secretary of the lnterior Bruce Babbitt violated the Endangered Species Act (ESA) by failing to take final regulatory action on the proposed rule to list the Arkansas River shiner as an endangered species by August 1995 and failing to designate "critical habitats" for the species by August 1996, as required by ESA rules.
In the lawsuit, the plaintiffs ask that the Court "enjoin the defendant to take final regulatory action regarding listing the Arkansas River shiner as threatened or endangered within 30 days of the Court's order; enjoin the defendant to issue a proposed rule regarding the designation of critical habitats for the Arkansas River shiner within 30 days of the Court's order; to take final regulatory action regarding critical habitats within 90 days of the proposed rule's publication in the Federal Register; and to grant the plaintiff its costs of litigation, including attorneys' fees, and any other relief as the Court deems just and proper."
According to the USFWS, the Arkansas River shiner is "a small fish found in the Canadian River (South Canadian) in New Mexico, Oklahoma, and Texas; and the Cimarron River in Kansas and Oklahoma."
The Arkansas River shiner was first proposed for listing as an endangered species in August 1994. At that time, the USFWS contended that it was "threatened by habitat destruction and modification from stream dewatering or depletion due to diversion of surface water and excessive groundwater pumpage, water quality degradation, and construction of impoundments," and other factors.
Public hearings were held in 1994 in Kansas. Oklahoma, and Texas to solicit testimony about the proposed listing. During the hearing in Amarillo, hundreds of people packed into the Texas A&M Research and Extension Center auditorium to protest the listing of this species as endangered.
At that meeting, the USFWS received hours of testimony from individuals, utilities, businesses, agricultural producers, and agricultural industry trade groups concerning the tremendous impact such a listing would have on the use of surface and groundwater in the High Plains and Panhandle region.
Representatives from the High Plains Underground Water Conservation District and other agencies presented testimony against the proposed listing and offered technical data showing that groundwater pumpage from the Ogallala Aquifer has no impact upon spring flow into the Canadian River above Lake Meredith.
Scientific information presented to the USFWS at this meeting showed the Arkansas River shiner was thriving rather than endangered. It was also pointed out that listing the Arkansas River shiner as an endangered species would jeopardize private property rights and public water supplies.
Shortly after the public hearing, Congress imposed a moratorium on new listings of endangered or threatened species. The moratorium prevented the USFWS from proceeding with any additions to the endangered species list. In 1996, President Clinton lifted the moratorium, allowing the USFWS to focus initially on emergency listing actions. The Arkansas River shiner was not classified in the emergency category.
A memorandum of understanding was signed in May 1997 between the Texas Parks and Wildlife Department, the Oklahoma Department of Wildlife, and the USFWS. The Texas appendix to the memorandum contains the following principles:
During the hearings and from research conducted from 1995 to 1996, new information relating to this proposal was obtained by the USFWS. As a result, the public was given another opportunity to comment on the proposed listing from December 5, 1997 to January 5, 1998.
"The High Plains Water District believes this lawsuit fails to recognize the Congressional moratorium preventing Secretary Babbitt from proceeding with any rulings," said A. Wayne Wyatt, manager. "Misrepresenting this critical fact, the plaintiffs have filed suit on an issue that is not ripe for adjudication."
The Water District's major concern regarding this latest lawsuit is that a ruling in favor of the plaintiffs could require periodic releases of surface water from Lake Meredith to sustain Arkansas River shiner habitats downstream. Given the limited amount of surface water stored in Lake Meredith, any water released downstream could reduce water availability for the 11-member cities served by the Canadian River Municipal Water Authority.
Also, use of groundwater could be severely restricted if the court's ruling directs action back to the assumptions on habitat restrictions needed by the shiner as published in the 1994 Federal Register, district officials said.
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