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More Effective Approach to Species Protection Advocated
 NAHB has thrown its support behind current efforts on Capitol Hill to update and improve the Endangered Species Act, which costs millions of dollars to enforce, delays home construction and threatens housing affordability even in areas it does not directly affect.
Meanwhile, the legislation has done a poor job of recovering endangered or threatened species, the goal for which it was created more than 30 years ago.
All agree that the act needs to be fixed. The question is how. NAHB leaders believe that a balanced approach is best: Encourage affected property owners to protect endangered plants and animals while still making room for homes.
NAHB wants regulatory certainty so property owners know exactly what their responsibilities will be, and also wants to be sure that the potential economic impact of restricting development — for example, higher home prices — is always taken into account.
Some Background
Since Congress passed it in 1973, the Endangered Species Act has allowed the federal government to regulate endangered and threatened species and their habitats. It defines an endangered species as “in danger of extinction throughout all or a significant portion of its range.” A threatened species is one “likely to become an endangered species within the foreseeable future.” Species can be protected regardless of whether their population has decreased or the species has always been rare.
The act covers the bald eagle and grizzly bear, and also mice, snails, clams, beetles, spiders and a fly, not to mention more than 20 different kinds of cacti. Species are protected, or “listed,” after the federal government decides they are endangered or threatened based on scientific evidence. Once listed, the government can place a host of restrictions on activities that might affect the species, including home building. The government is also required to devise a plan to recover the species.
The act’s impact on housing affordability has been increasing across the country as more restrictions are placed on available land. One reason is the growth in the number of listed species. A little more than 100 species were originally on the list. Today, there are more than 1,260, with nearly 300 additional species labeled as candidates. Many developments in high-growth areas such as California, Florida, Texas and Hawaii have been especially hard hit.
Effect on Home Builders and Buyers
A number of federal regulatory provisions are triggered when a species is listed. Home builders and developers often run into the Endangered Species Act when applying for a federal permit, such as a wetlands permit. Often, they must modify or delay their project because of the possibility that grading or other activities might result in the death of a listed species, even inadvertently. If they don’t, violations can result in criminal fines of up to $50,000 and one year in prison.
Some of the act’s regulatory provisions, such as the designation of critical habitat, have become targets of litigation and symbols of the law’s outdated approach to species conservation. In 2002, for instance, 1.2 million acres outside Tuscon, Ariz. were proposed as critical habitat for just 18 endangered pygmy owls, effectively giving each some 66,000 acres on which to roam.
Other provisions, like habitat conservation plans, have recently emerged as win-win alternatives to the antiquated command-and-control approach. For example, Clark County, Nev. developed Multi-Species Habitat Conservation Plans to protect the desert tortoise, southwestern willow flycatcher and 77 other species with help from home builders, local governments, federal agencies, ranchers and mining interests. Between 4,000 and 7,000 new residents move to the area every month, and as the county worked to keep up with housing and other infrastructure, it also wanted to protect native desert plants and animals. The county assessed a $550 per acre fee to builders and developers to pay for long-term protection measures for endangered species as well as long-range planning to facilitate economic growth for the entire region.
How the Act Can Change
Last fall, Rep. Richard Pombo (R-Calif.) introduced "The Threatened and Endangered Species Reform Act," or TESRA. NAHB supports this legislation because it is clear that there are provisions in the ESA that are too confusing, expensive or limiting and must be fixed. Most importantly, the provisions have failed to recover species.
TESRA eliminates critical habitat from the act and, in exchange, gives greater prominence to recovery plans and the recovery planning process. At the same time, the legislation increases protection of private property rights, includes compensation provisions for taking property and includes other features that clarify language and eliminate duplication. For instance, it requires approved recovery plans to be consistent with local comprehensive plans, which otherwise might create confusion for local governments and go against the wishes of area residents.
Importantly for builders, TESRA also codifies “no surprises” for habitat conservation plans. Once the government approves a landowner’s plan to invest money or land to help save endangered or threatened species, the government can’t return to demand more land or money later. Clark County’s plan would not have been successful without the active participation of the home builders working to provide housing for the new residents streaming into the greater Las Vegas area. Home builders were willing participants because their responsibilities were clearly spelled out — and they knew the county would not return to the well.
NAHB strongly supports appropriate protection of the nation’s endangered species and advocates solutions that are cooperative and that balance the needs of future generations, available resources and costs. TESRA eases the ability of all interests to work together toward conservation goals while continuing to allow the needed construction of American homes.
For more information on endangered species, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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