|
Streamlining Proposed for Endangered Species Act
The U.S. Department of the Interior last week released a proposal that would update and streamline regulations in the Endangered Species Act that most affect home builders and developers.
The proposal includes changes to Section 7 of the act, which governs the duties of other federal agencies under the ESA and clarifies when these agencies are required to consult with the Fish and Wildlife Service (FWS) or the National Oceanographic and Atmospheric Administration (NOAA) on the protection of threatened or endangered species.
Builders and developers are subject to Section 7 regulations when their proposed construction projects affect federally protected species or their habitat, making a permit necessary.
Typically this regulation occurs when a developer or builder seeks a federally issued wetlands permit for such a project. During the “consultation process,” the issuing federal agency must discuss the project with either FWS or NOAA, depending on which agency has jurisdiction over the species in question.
This process results in permitting delays, and can also force changes in the proposed project as well as mitigation for the species or its habitat.
By clarifying the consultation process, Interior Secretary Dirk Kempthorne said that his agency can make it “less time-consuming and a more effective use of our resources.”
The action comes after the Interior Department listed the polar bear as “threatened” because of the effects of climate change on its native habitat.
The Administration has repeatedly stated that the Endangered Species Act should not be used as a general tool to regulate the effects of climate change, which, it says, should be addressed by Congress and an international effort to reduce greenhouse gas emissions.
Kempthorne’s proposal is “a stop-gap measure to provide guidance to federal agencies and the regulated community and prevent the potential abuses of the ESA’s sweeping regulatory provisions” now that the listing of the polar bear under the ESA has opened the door to the possibility of more species being protected from the presumed effects of climate change, said Ernie Platt, chairman of the NAHB Environmental Issues Committee.
“We are not being good stewards of our resources when we pursue consultation in situations where the potential effects to a species are either unlikely, incapable of being meaningfully evaluated, wholly beneficial or pose only a remote risk of causing jeopardy to the species or its habitat,” said Dale Hall, director of the Fish and Wildlife Service.
The proposal is also in line with a U.S. Supreme Court ruling two years ago in NAHB v Defenders of Wildlife that the Endangered Species Act was not designed to automatically take precedence over the Clean Water Act and other federal laws when federal agencies are required by Congress to perform vital functions such as providing federal funding or transferring regulatory authority from federal to state agencies.
“If the tactic employed by environmentalists under the NAHB v. Defenders lawsuit had prevailed, it is likely these same groups would now be suing under the guise of climate change to halt other vital federal and state permitting programs that support residential development. That’s not the purpose of this act,” Platt said.
Meanwhile, confusion remains over the actual regulatory standards federal agencies should use to judge the impact of residential projects occurring in so-called “critical habitat.”
Since 2003, FWS has stated its intension to reform the act’s “adverse modification” standard, which defines the extent to which a property may be changed before the development becomes adverse for a species. This makes the law’s enforcement difficult and confusing for both regulators and land owners. The Kempthorne proposal does not address this standard.
“Until FWS and NOAA comprehensively address the problems with the adverse modification standards, builders and developers have no idea what standard their projects in critical habitat are being held to. That is simply bad government, and NAHB is absolutely right to continue to push for reform,” Platt said.
Along with other stakeholders interested in protecting endangered species while rectifying the shortcomings of the ESA, NAHB participated in a series of national “Cooperative Conservation” hearings held by the Interior Department and Environmental Protection Agency.
“Our members testified in more than 30 of these hearings and shared our concerns,” Platt said. “We support the goals of the ESA. We embrace species conservation, but we need to protect the species that are truly endangered. Environmental groups, business groups — all of us agree that the act needs to be streamlined to do its job.”
The new Interior Department proposal will be open for public comment through mid-September.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
|
