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Week of November 17, 2003

Front Page

Housing and Economics

* Spotlight on: Jacksonville

Business Management

* Put Processes in Place to Reduce Your Punch Lists

Legal Issues

* Ask the Lawyer — About Vested Development Rights

Environment

* Court Ruling Casts Habitat Conservation Plans in Doubt

Smart Growth

* Awards Recognize Smart Growth Development in Northeast Ohio

Seniors Housing

* Conference Explores Facets of 50+ Market
* Builders Increasingly Responding to ‘Aging in Place’ Housing Issues
* Market-Rate Rental Communities for 'Not-So-Poor' Seniors a Potential Growth Area

Small Builders and Remodelers

* Is It Time to Remodel Your Reputation?

Housing Finance

* Industry Forum Set for Florida Air Force Housing Privatization Project

Building Systems

* Achievements in Systems-Built Housing Recognized

Research

* Cutting-Edge Green Building Products Named the Top-10 for 2003

Building Products

* Exterior Doors Open to Zen Masterpiece

Building News Coast To Coast

Association News & Events

* Bob the Builder Activity Books Are Back in Stock
* February Is National Designation Month
* NAHB President Conine Reappointed to Texas Housing Board
* Fire Relief Fund Announced by Southern California Builders
* Calendar of Events

NBN Back Issues

 

Court Ruling Casts Habitat Conservation Plans in Doubt

A recent ruling by a U.S District Court judge on the "No Surprises" clause in incidental take permits issued by the Fish and Wildlife Service (FWS) has put the future of innovative habitat conservation plans (HCPs) in doubt.

On Sept. 30, without explaining his reasoning, Judge Emmett Sullivan issued a one-page order in which he challenged the validity of the Service’s “No Surprises” clause, which is a vital component of an incidental permit through which a landowner or developer may inadvertently harm an endangered species in exchange for undertaking other conservation and mitigation actions outlined in an agreed-upon habitat conservation plan. Mitigation requirements are determined on a case by case basis.

The “No Surprises” clause is a landowner’s guarantee that he will not be liable for any additional conservation and mitigation costs should unforeseen circumstances arise.

NAHB President Kent Conine called the habitat conservation plans “a national model for cooperation and communication between builders and many environmental organizations that support species conservation on private lands.”


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The recent ruling, Conine said, “muddies the waters on the future of these programs.”

Following the judge’s initial order, the Service quickly froze the issuance of HCP-related permits. However, on Nov. 4 it said in a memo that it would resume issuing the permits, but that the assurance of “No Surprises” would not apply should the rule be invalidated.

In the interim, NAHB had contacted the Fish and Wildlife Service to express its concern and to convey its view that suspending the permits was not warranted by the judge’s order. As a way of moving forward, NAHB suggested the possibility of including the “No Surprises” clause in permits on an individual basis instead of including it automatically in all habitat conservation plans.

As all of the stakeholders await a final ruling from Judge Sullivan, the future of the "No Surprises" clause remains in doubt.

NAHB plans to meet with FWS officials to discuss the economic and policy implications of an invalidated "No Surprises" rule, and to discuss ways to avoid future misunderstandings about the permitting program.

For more information about habitat conservation plans and the ruling, e-mail Christopher Galik or call him at 800-368-5242 x8663.


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