Judge Orders Action on Fish Habitat

A federal judge has ruled that the U.S. Fish and Wildlife Service violated the Endangered Species Act by refusing to designate critical habitats for the endangered tidewater goby.

The judge gave the service 120 days to designate land considered critical for the survival of the tiny gray-brown fish.

One habitat is San Onofre Creek, which flows through the area where the controversial Foothill South toll road would be built. But no one could say with certainty Monday whether the ruling would affect planning for the $644-million highway in South County.

The tidewater goby, found only in California, lives in salt marshes, coastal lagoons and estuaries from the state’s northern border south to Camp Pendleton in San Diego County. While the fish once flourished in more than 100 spots along the coast, its population has been reduced sharply by development, with only 40 to 50 populations remaining statewide, experts said.

Acting in a lawsuit by the Natural Resources Defense Council, U.S. District Judge Carlos Moreno in Los Angeles rejected the government’s argument that it should not be required to designate protected habitats for the tidewater goby.

Government lawyers said the designations are not warranted because the Fish and Wildlife Service may soon seek to remove the tidewater goby from the endangered species list.

They also contended that the Fish and Wildlife Service lacks funds to establish critical habitats for the fish. But Moreno disagreed and set the 120-day deadline.

He cited the Fish and Wildlife Service’s preliminary draft recovery plan for the goby, prepared in 1996, which recommended that the fish not be removed from the endangered species list for at least 10 years. The tidewater goby was declared an endangered species in 1994.

Moreno’s decision is being applauded by some environmentalists and scientists who say the service too often drags its feet or simply never designates habitat for failing plants and animals.

“This seems to be a pattern where the service has a hard time getting its stuff done,” said Camm C. Swift, the fish expert who petitioned for federal protection for the goby in the early 1990s. Swift, a biologist at Mt. San Antonio College and emeritus associate curator at the Natural History Museum of Los Angeles County, estimates that the fish has been disappearing at a rate of about one population a year since the 1930s.

Swift said coastal development and water pollution has contributed to the decline of the goby.

The fish, which is just 3 inches long and semitransparent, lives one year and spends much of its life preparing to produce the next generation.

Several of the streams still containing gobies run through the U.S. Marine Corps base, including San Onofre Creek, which contains a healthy population, Swift said.

But wildlife ecologist Dan Holland, principal investigator with a private research organization studying wildlife at Camp Pendleton, said, “Things are bad and getting worse. In the last 10 years, we’ve lost the two largest populations in Southern California.”

Toll road opponents say the judge’s decision demonstrates once again why that road could be environmentally damaging.

Lisa Telles, spokeswoman for the Transportation Corridor Agencies, which would build the road, said Monday she had not yet seen the judge’s decision.

If some land within the highway study area is deemed critical for the fish, Telles said, “we’ll study it just as we would any other critical habitat and develop a mitigation plan.”

The Endangered Species Act provides for the protection not just of species but of their habitats as well. Once a habitat is designated as critical, the federal government is barred from carrying out or permitting any activities that could harm the area.

Private landowners are not affected by Moreno’s ruling unless they need to seek a federal permit to alter their property. For example, filling in a wetlands area requires a permit from the Army Corps of Engineers. An applicant also would have to comply with regulations protecting the tidewater goby.

Jane Hendron, a Fish and Wildlife spokeswoman, said, “We haven’t seen the ruling, so we can’t comment on it.”

Joel Reynolds, senior attorney at the Natural Resources Defense Council, hailed Moreno’s ruling Monday, saying that it provides added protection from “unrelenting development pressures” that threaten the California coast.

The council said it would wage a court fight to block any attempt by the Fish and Wildlife Service to remove the goby from the endangered species list.

“We don’t believe there is any biological basis for removing the tidewater goby from the endangered species list at this time,” said Andrew Wetzler, an attorney for the Natural Resources Defense Council. “The federal government ought to be spending its limited resources protecting species, not taking their protection away.”

Times staff writer Gary Polakovic in Ventura County contributed to this report.