Court Rejects Endangered Species Permit Revocation Rule
Rules by the Fish and Wildlife Service (FWS) enabling builders, developers and other landowners to acquire permits for activities in endangered species habitats will be reconsidered by the agency next year following a ruling by the U.S. District Court for the District of Columbia.
On Dec. 11, in the 1998 case of Spirit of the Sage Council v. Norton, federal judge Emmet Sullivan scrapped a rule allowing Section 10 permits received under Habitat Conservation Plans to be revoked if it turns out that development activity is appreciably reducing the survival and recovery of a species, finding that the rule was rushed into effect, depriving the American public of the opportunity to comment on it.
He said that a second Fish and Wildlife regulation, the “No Surprises” rule, should remain intact. That rule ensures that the FWS cannot alter the terms of an agreement with landowners to mitigation, conservation easements and other measures to preserve habitat.
“The judge was correct in saying that the public should have an opportunity to comment on significant public policy decisions under the Endangered Species Act,” said NAHB President Kent Conine. “In leaving the ‘No Surprises’ rule intact, however, the court sent a strong signal that a deal is still a deal, and the rules governing Habitat Conservation Plans will continue to benefit builders and developers.”
The permit rules provide predictability and fairness and are essential to ensuring that species recovery goals under the Endangered Species Act are met, according to the nation’s home builders.