Court Upholds ‘No Surprises’ Rule on Habitat Plans
After a decade of litigation, the U.S. District Court for the District of Columbia on Aug. 30 upheld the validity of the U.S. Fish and Wildlife Service's “No Surprises” rule.
The federal government introduced the rule in 1994 and later codified it to encourage use of Habitat Conservation Plans, in which property owners demonstrate the steps they will take to conserve plants or animals listed as endangered species.
Expensive and onerous to produce, many property owners had balked at producing the plans because they provided no guarantee that government regulators would not impose additional requirements or revoke incidental take permits, which acknowledge that the landowner might inadvertently harm a species while taking appropriate steps to mitigate losses.
The No Surprises policy was an immediate success: while only 14 incidental take permits were filed before the rule, 379 were issued between 1994 and 2002.
Some conservationists argued that the No Surprises policy increased species losses, while others recognized it as an appropriate and cost-effective approach to development.
The court agreed with the latter view last month in its decision in Spirit of the Sage Council v. Dirk Kempthorne, which establishes the principle that incidental take permits and habitat conservation plans under the Endangered Species Act do not need to meet a "recovery" level of protection — a significant decision in the case law, according to Duane Desiderio, NAHB’s staff vice president of legal services.
The No Surprises rule provides regulatory and financial certainty to builders who enter into a plan with federal fish and wildlife agencies to conserve habitat. The rule provides for written guarantees in Habitat Conservation Plans that the property owner’s mitigation obligations will not become more burdensome in the future if the health of a species declines.
The corollary of No Surprises is the Permit Revocation Rule, which states that a permit can be revoked only in rare circumstances, such as when a development project will put a species on the brink of extinction.
“This is a sensible decision,” Desiderio said. “It gives everyone more certainty, it takes away expensive protection requirements for those who should not shoulder that responsibility and it keeps housing affordable.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.