Home Builders Ass'n v. United States Fish & Wildlife Service

Home Builders Association of Northern California and other industry groups (collectively “Home Builders”) challenge the designation by the U.S. Fish and Wildlife Service (“FWS”) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species. In the district court, Butte Environmental Council and other conservation groups (collectively “Butte Environmental”) intervened as defendants in support of the designation, and they have participated in the appeal. The district court upheld the designation, and Home Builders appeals, raising five technical challenges to FWS’s procedure. We conclude that none of those challenges have merit, and we affirm.

BACKGROUND

Vernal pools are a “unique kind of wetland ecosystem” that exists only temporarily. 68 Fed.Reg. 46,684, 46,685 (Aug. 6, 2003). The pools typically appear in spring — that is, vernally — following fall and winter rains before drying up until the following year. Id. Since the pools’ existence depends on rainfall, pool size and location can vary from year to year. Id. at 46,685-86. To survive years in which no pool develops due to low rainfall, vernal pool species have developed…