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Fish and Wildlife Service Issues Proposed Rule to Revise Invalidated Critical Habitat for Peninsular Bighorn Sheep

By: Robert D. Thornton, Paul S. Weiland
10/16/07

On October 10, 2007, the U.S. Fish and Wildlife Service issued a proposed rule to revise the previously designated critical habitat for the peninsular bighorn sheep in Riverside, Imperial, and San Diego Counties.  The rule proposes to designate 384,410 acres as critical habitat for the bighorn sheep.[1]  Interested parties must submit requests for public hearing regarding the proposed rule by November 26, 2007, and comments regarding the proposed rule by December 10, 2007.  The final rule revising critical habitat is likely to result in a substantial reduction in critical habitat for the bighorn sheep vis-à-vis the prior rule, but it will nevertheless have substantial implications for development in Coachella Valley and beyond.

 

In 2001, the Service issued a final rule designating 844,847 acres of land in Riverside, Imperial, and San Diego Counties as critical habitat for the bighorn sheep.  The Service issued the final rule less than one year after it released a Recovery Plan for the species.  In 2005, on behalf of the Agua Caliente Band of Cahuilla Indians, Nossaman filed a complaint in federal court challenging the final rule.  After the federal government informed the court that it did not intend to defend the legality of the rule, parties to the litigation entered into a court-approved consent decree in 2006 that, among other things, required the Service to undertake a new rulemaking.

 

The proposed rule to revise the critical habitat for the bighorn sheep would reduce the amount of land designated as critical habitat by more than 450,000 acres or more than 50 percent relative to the 2001 final rule.  In addition, the proposed rule indicates the Service's inclination to exclude the 4,512 acres of lands of the Agua Caliente Band of Cahuilla Indians that were included in the proposal in consideration of an Executive Order and a Secretarial Order regarding relations between the federal government and a recognized tribe.  And the proposed rule indicates that the Service is evaluating whether to exclude 19,211 acres of private lands that were included in the proposal because those lands are in the Plan Area for the Coachella Valley Multiple Species Conservation Plan.

 

Publication of the proposed rule coincides with efforts to implement two regional habitat conservation plans that would protect a substantial portion of bighorn sheep critical habitat.  On September 10, 2006, the Coachella Valley Association of Governments adopted the Coachella Valley Multiple Species Habitat Conservation Plan.  Other parties to the Plan, including the County of Riverside and eight Coachella Valley cities, are in the process of deciding whether to adopt the Plan, which is a first step toward obtaining federal and state permits and implementing the Plan.  And on October 12, 2007, the Fish and Wildlife Service issued a notice of availability of the Draft Environmental Impact Statement for the Agua Caliente Tribal Habitat Conservation Plan.

 

A copy of the proposed rule is available here.

 

Robert Thornton has practiced environmental law for over twenty-eight years.  He represents landowners, resource developers, and public agencies on a variety of environmental matters and is nationally recognized as an expert on the Endangered Species Act and regional habitat conservation plans.  He can be reached at (949) 833-7800 or rthornton@nossaman.com.

 

Paul Weiland counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act and National Environmental Policy Act.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or pweiland@nossaman.com.



[1] The rule also proposes to alter the taxonomic status of the species from a designated population segment (DPS) of a species to a DPS of a subspecies.  This taxonomic change does not have material regulatory implications.

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