Fairy Shrimp Habitat|Not a Done Deal Yet


     (CN) – The government and three California developers must provide more information to determine whether a rule designating 57 acres of critical habitat for the endangered Riverside fairy shrimp will stand, a federal judge ruled.
     Riverside fairy shrimp are tiny freshwater crustaceans native to Southern California and Baja California in Mexico that typically grow to ½ inch to almost one inch long. Identified as a new species in 1985, these rare shrimp are found in vernal pools, temporary wetland ponds that fill up after rainfall or snowmelt in spring.
     Adult fairy shrimp have 20 body segments, two sets of antennae, 11 pairs of swimming legs, and a flexible exoskeleton. They swim “upside down” and use their legs to scrape algae from surfaces and collect organic particles like protozoa and bacteria from the water.
     Male fairy shrimp die hours after mating, while female fairy shrimp can produce several clutches of 10 to 150 eggs during a lifetime. Eggs can tolerate extreme temperatures and dryness, going dormant until exposed to water. Some have been hatched in a lab after 15 years in the mud.
     Found only in five areas in Riverside and San Diego counties and two pools in northern Baja California, habitat loss and degradation from urban sprawl, off-road vehicle use and overgrazing of livestock pose the biggest threats to the species, which was listed under the Endangered Species Act in 1993.
     In December 2012, the U.S. Fish and Wildlife Service promulgated a rule that designated 1,724 acres of critical habitat for the Riverside fairy shrimp. Fifty-seven acres of this land in San Diego County belong to developer Otay Mesa Property, which wants to build a recycling facility and landfill to “address projected landfill capacity issues” in the county, according to the 62-page ruling by U.S. District Judge Ketanji Brown Jackson.
     The land at issue includes a vernal pool approximately one acre long, as well as a small stream and 56 acres of adjacent watershed. Though the service previously declined to include the land in past critical habitat designations for the Riverside fairy shrimp, it changed course in 2012 after refining the criteria for the physical and biological features necessary for species’ survival.
     During the public comment period on the proposed rule, plaintiffs Otay Mesa and fellow developers Rancho Vista Del Mar and Otay International complained their land should not have been designated as critical habitat because Fish and Wildlife had offered “no evidence that Riverside fairy shrimp were present” on the parcel when the species was designated as endangered in 1993.
     The developers also noted the stock pond on the property was only wet two to three weeks out of the year – not enough time for the fairy shrimp to develop – and that their remaining 56 acres had no pools and therefore no shrimp at all.
     Fish and Wildlife adopted the rule anyway, prompting the developers to sue claiming the designation of their land as critical shrimp habitat was arbitrary because the land does not qualify as such under the Endangered Species Act.
     The developers also claimed the service’s economic analysis was flawed and that it improperly neglected to formally study the environmental impacts of the rule under the National Environmental Protection Act, or NEPA.
     In rebuttal, the service claimed the developers lacked standing to sue, that it properly declined to conduct NEPA analysis, and that the property does qualify as critical shrimp habitat.
     Judge Jackson in the District of Columbia declined to award either party summary judgment, dismissing their motions without prejudice. Though she found both party’s arguments compelling, she ruled on Nov. 13 that the administrative record contains insufficient evidence to decide the matter and ordered both sides to submit additional briefs.
     Jackson rejected the service’s argument that Otay Mesa could not demonstrate imminent harm from the Riverside fairy shrimp habitat designation. Since the designation will tack on additional costs to its planned recycling and landfill project, it clearly “has a personal stake in this matter and, thus, has constitutional standing to seek review of the 2012 final rule,” Jackson wrote.
     Though Otay Mesa’s injuries are of an economic rather than environmental nature, it still has standing under NEPA because the “quality of the human environment” aspect of NEPA’s implementing regulations applies to the construction of the planned recycling facility, the ruling stated.
     Nevertheless, Jackson held that the service’s designation of the vernal pool and surrounding watershed as critical habitat was neither arbitrary nor capricious.
     Surveys taken by the service indicate that thousands of Riverside fairy shrimp live in the vernal pool during the wet season, and a large number of eggs and cysts were found in soil samples from the pool confirming that it is “occupied” under the Endangered Species Act. The service also submitted plenty of compelling evidence showing that surrounding watersheds are crucial to keep vernal pools filled and regulate their chemistry, according to the ruling.
     Even if the vernal pool did not meet the Endangered Species Act’s “occupied” criteria, the service properly determined that the pool also qualifies as “unoccupied” habitat essential to preserving the shrimp that already live there because its features – wetland habitat, local watershed, and topography that supports pond formation – are crucial features to the conservation of the species, the ruling stated.
     Otay Mesa’s argument that the service cannot simultaneously designate the pond as “occupied” and “unoccupied” fails because these determinations are not mutually exclusive under the statute, the ruling stated.
     “This court has concluded that it was entirely reasonable for the Fish and Wildlife Service to apply its scientific expertise to the know facts and thereby deem the vernal pool and surrounding watershed as ‘critical habitat’ for the Riverside fairy shrimp,” Jackson wrote.
     Arguments that the economic analysis was flawed because it did not account for the social impacts of “scuttling” the recycling center and landfill project fail because the service need not take social impacts of the “missed opportunity” into consideration, the ruling said.
     The service’s use of the baseline method rather than the co-extensive methodology it has used in the past was proper here because “there are existing constraints on development of these lands due to the presence of the Riverside fairy shrimp” that would exist without the critical habitat designation, and the baseline method excludes such preexisting costs, Jackson wrote.
     Though the Circuit is split on whether NEPA analysis applies to critical habitat designation, Jackson sided with the Ninth Circuit and found it unnecessary in this case because establishing critical habitat protects the environment without altering or interfering with it.
     However, she determined that the service did not provide enough topographical evidence supporting its conclusion that the remaining 56 acres qualify as watershed for the vernal pool on Otay Mesa’s land.
     Though the service expounded on its methodology and mentioned topographical maps supporting its conclusions, those maps are not in evidence and the record is “otherwise completely silent regarding the specific hydrology” of that land, the ruling said.
     The judge ordered the parties to submit additional briefing to enable the court to assess the service’s rationality for designating the other 56 acres of the land as critical habitat for the Riverside fairy shrimp.
     A spokesperson with the service’s California office told Courthouse News that the agency is “putting together our response as per the court’s request.”
     The defendants were represented by Nancie Marzulla, who did not immediately return emailed comment requests sent Monday morning.

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