“This is a common-sense ruling from the court that makes the National Marine Fisheries Service (NMFS) play by the rules,” said NAHB President Kent Conine.
The courts have consistently ruled, he said, that the Fish and Wildlife Service and the National Marine Fisheries Service “cannot just make habitat designations without basing them on sound science and providing an appropriate time for comment from affected groups.”
The Fisheries Service must now submit its habitat designation for the salmon to notice and comment. Until a new rule is in place, there is no essential fish habitat in effect for salmon in the Pacific Northwest states, and no salmon-related consultations on habitat can proceed.
Builders and developers will not be required to undergo a consultation with NMFS when seeking a federal permit, such as a wetlands permit from the Corps of Engineers, until a new habitat designation for salmon is completed.
In its decision, the court said that the essential fish habitat designation “has a significant effect in determining when consultation is required and a future effect designed to interpret the consultation policy.”
NAHB and the other plaintiffs, the court ruled, “were entitled by law to a further opportunity to comment and participate in the regulation setting forth” the designation for the salmon.
The Fisheries Service can appeal the decision to the Ninth Circuit, in which case it would have 60 days from the announcement of the ruling to do so, unless it seeks an extension.
For more information, e-mail Duane Desiderio or call him at 800-368-5242 x8146.
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