California Vernal Pool Critical Habitat

Butte Environmental Council v. Fish and Wildlife Service and Army Corps of Engineers


Species Background:


Vernal pools are seasonally flooded wetland depressions. Naturally formed on impermeable clay soil layers, vernal pools retain water much longer then the surrounding uplands but are typically shallow enough to dry up each season. Vernal pools provide unique habitat for numerous rare plants and animals that can survive and thrive in alternating wet and dry conditions; many species spend the dry season as seeds, eggs, or cysts, and then grow and reproduce when the ponds are filled with water. Protein-rich invertebrates and crustaceans, as well as the roots and leaves of vernal pool plants provide an important seasonal food source for migratory birds; 19 percent of all wintering waterfowl in the continental United States take respite in vernal pools.

Beginning in 1978 and continuing through 1997, the Fish and Wildlife Service (“FWS”) listed as endangered under the Endangered Species Act fifteen species of plants and animals that live in vernal pool environments. The fifteen species are four crustaceans (the Conservancy fairy shrimp, the longhorn fairy shrimp, the vernal pool fairy shrimp, and the vernal pool tadpole shrimp) and eleven plants (the Butte County meadowfoam, Contra Costa goldfields, Hoover’s spurge, succulent or fleshy owl’s clover, Colusa grass, Greene’s tuctoria, hairy Orcutt grass, Sacramento Orcutt grass, San Joaquin Valley Orcutt grass, slender Orcutt grass, and Solano grass). These fifteen species are distributed in vernal pools throughout southern Oregon, California, and parts of northern Mexico.

Though vernal pools once proliferated in southern California and California’s Central Valley, more than 90% of California's vernal pools have already been lost to land development.

Case Background:

In 1995, a coalition of environmental groups intervened in a lawsuit with the Department of Interior (“Interior”) to support the endangered and threatened listing of four shrimp species found in California’s vernal pools. At the time, the Building Industry Association was attempting to remove them from protected status through the courts.

In August 2003, following a 2001 lawsuit compelling the designation of critical habitat for the fifteen vernal pool species in central California, the Fish and Wildlife Service (“FWS”) issued a final rule designating approximately 1.7 million acres of critical habitat. The final designation, however, excluded more than 500,000 acres found on federal, state, military and tribal lands. Moreover, another 500,000 acres were excluded in the 11th hour based on alleged economic impacts, eliminating all critical habitat in Butte, Madera, Merced, Sacramento, and Solano Counties.

In January 2004, Defenders and conservation groups successfully challenged the 2003 rule and the Eastern District Court of California ordered FWS to reconsider its exclusions. In August 2005, FWS issued its new final rule again excluding nearly 900,000 acres of wetlands habitat.

In December 2005, the conservation organizations returned to court to challenge FWS's exclusions. In November 2006, the District Court issued a major ruling overturning FWS’s decision to omit 900,000 acres in 11 counties from its 2005 final rule. The Court also rejected a separate industry attempt to overturn the protections for more than 800,000 acres that FWS did protect as critical habitat. In sending FWS back to the drawing board, the Court accepted the central argument of the conservation organizations that in excluding vernal pool critical habitat within 11 California counties, FWS continued its long history of failing to consider the essential importance of such designation to the ultimate recovery of the vernal pool species.

The court has ordered FWS to reconsider its exclusions and issue a new critical habitat rule in 120 days. The current critical habitat designation of more than 800,000 acres of vernal pool grasslands remains intact.

Related Documents:

Court decision

Status:


Closed

Co-filers:


Butte Environmental Council, California Native Plant Society