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Fish and Wildlife Service Issues New Final Rules Designating Critical Habitat for Coastal California Gnatcatcher and San Diego Fairy Shrimp

By: Paul S. Weiland, Robert D. Thornton
12/19/07

The U.S. Fish and Wildlife Service (Service) has issued final rules revising critical habitat for the coastal California gnatcatcher and San Diego fairy shrimp. The Service substantially reduced the acreage designated as critical habitat for both species, principally as a result of public and private conservation planning efforts – including habitat conservation plans (HCPs) and Department of Defense integrated natural resource management plans (INRMPs) – that obviate the need for designation of critical habitat.

In October 2000, the Service published final rules designating critical habitat for both the San Diego fairy shrimp and the coastal California gnatcatcher. Both rules were successfully challenged in federal court by numerous parties, including a group of public and private entities represented by Nossaman. Though the United States District Court for the Central District of California granted the Service’s request for remand of the rules, the Court left the legally deficient rules in place until publication of revised final rules for the species by the Service. In April 2003, the Service published proposed rules to designate revised critical habitat for both the San Diego fairy shrimp and the coastal California gnatcatcher and solicit public comment. On behalf of several interests, Nossaman submitted extensive comments on the proposed rules arguing that land covered by HCPs and other conservation plans should be excluded from critical habitat. Thereafter, the Service did not act to finalize the revised rules until a group of parties that challenged the October 2000 rules filed a motion asking the Court to step in.

The revised rule designating critical habitat for the coastal California gnatcatcher reduced the critical habitat by more than 60 percent, from 513,650 acres under the October 2000 rule to 197,303 acres. The final rule designates critical habitat in Los Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura Counties. Among the areas excluded from the revised rule are lands subject to HCPs and INRMPs, including all lands within the Orange County Central/Coastal and Southern Subregion HCP/NCCPs, Western Riverside Multiple Species HCP, San Diego Multiple Species Conservation Plan (or MSCP), and San Diego Multiple Habitat Conservation Program.

The revised rule designating critical habitat for the San Diego fairy shrimp represents a 25 percent reduction from the original 4,025 acres in the October 2000 rule. The final rule now designates as critical habitat 3,082 acres broken into five units in Orange and San Diego Counties. Among those areas excluded from the revised rule are lands within the Orange County Central/Coastal and Southern Subregion HCP/NCCPs and the Marine Corps Base Camp Pendleton INRMP. Notably, lands within the San Diego MSCP were not excluded from the revised rule due to the fact that a federal court enjoined the Service’s incidental take permit associated with the MSCP with respect to land use activities that affect vernal pool habitat.

A copy of the revised rule for the San Diego fairy shrimp is available here, and a copy of the revised rule for the coastal California gnatcatcher is available here.

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