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California Vernal Pool Critical Habitat

Date Filed: 11/01/2006
Case Status: Active

Butte Environmental Council v. U.S. Fish and Wildlife Service (Eastern District of California)

Consolidated lawsuit in which Defenders challenged the Fish and Wildlife Service and Army Corps of Engineers' critical habitat exclusions for 15 vernal pool species in central California, while also intervening to defend FWS's designations from a challenge brought by developers.

Species Background:

Vernal pools are seasonally flooded wetland depressions. Naturally formed on impermeable 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 U.S. 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 August 2003, in response to an earlier Defenders' lawsuit, FWS issued a final rule designating approximately 1.7 million acres of critical habitat for the fifteen vernal pool species. In 2005, however, FWS issued rules excluding nearly 1 million acres of habitat, much of it private land within the path of rapid development in the Central Valley, as well as public lands including National Wildlife Refuges and the Carrizo Plain National Monument.

In December 2005, the conservation organizations returned to court to challenge FWS's exclusions, while also intervening the defend the designation from legal challenges brought by building industry groups. These cases were then consolidated and heard together.

In November 2006, the District Court upheld Defenders’ challenge to the exclusions, finding that FWS had not adequately considered their value to the recovery of the vernal pool species, while also rejecting all of the home builders’ arguments claiming that the designation should be invalidated. FWS then redesignated critical habitat for the species, reducing significantly the acreage excluded in the original rule. The building industry groups again challenged the designation and lost in district court and before the U.S. Court of Appeals for the Ninth Circuit.

The case is still not over, however, as the Home Builders Association of Northern California and other industry groups have asked the Supreme Court to review the case. Defenders and our conservation partners filed a brief in opposition in January 2011. The Court has not yet decided whether to take the case.