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Obama Memo Restores Costly, Lengthy ESA Consultations
A March 3 memo from President Obama to federal agency leaders brings an early end to a decision by the parting Bush Administration to streamline Section 7 of the Endangered Species Act so that funding and staff resources could be concentrated on larger projects and the most threatened species.
The memo has asked the Interior and Commerce secretaries to determine whether a new rule is needed on how federal agencies should consult with each other when a parcel of land may fall under multiple regulations, particularly the Endangered Species Act, which is called “one of the Nation’s profound commitments.”
In the meantime, the memo requests the federal agencies to follow the consultation procedures that were in place before the new rule was announced on Dec. 16.
Unfortunately, said NAHB analysts, the memo will not result in additional protection for endangered species, but will only add confusion to the regulation of greenhouse gases, which should not be under the purview of the Endangered Species Act in the first place.
Agencies are once again being required to conduct consultations that they are not equipped or staffed to effectively complete, said NAHB, and this will result in significant delays and additional expenses in procuring federal permits.
A report last year from the U.S. Government Accountability Office noted that the U.S. Fish and Wildlife Service — which is responsible for consultations on endangered animals and fish — has missed 40% of its own consultation deadlines, delaying decisions on construction projects by as long as two years.
The memo also does not settle the debate on the regulation of greenhouse gases, which some environmental groups believe should include extending the reach of so-called critical habitat provisions beyond the actual physical habitat of the species in question.
“A move to stop a particular housing development in Southern California because of its contributions to global warming is one issue, but tying it to the potential effects on polar bears and shrinking ice caps through the Endangered Species Act is another,” said NAHB Chairman Joe Robson.
“We’re all worried about the effects of climate change, but the Endangered Species Act was passed 36 years ago. While it reflects the very real concerns of that time and our time over species conservation, the Endangered Species Act was not written with climate change issues in mind,” Robson said.
“If we need to protect polar bears in their native habitat, we should use the regulations contained in the Endangered Species Act. They aren’t endangered in Southern California, so there’s no way to use those regulations there without stretching the act way out of proportion,” he said.
“Home builders support the goals of the Endangered Species Act and have been protecting the habitat of endangered species since the legislation’s inception in 1972. The bald eagle — once a protected species and now much more abundant — is just one example of the successes in which we were proud to play a part,” Robson continued.
“Unfortunately, through the years, it’s become a regulatory nightmare. It’s difficult and confusing for both regulators and land owners. It’s very expensive and time-consuming to do the proper scientific and economic studies to determine what land needs to be conserved to protect the species in question, so there’s a tendency to throw the baby out with the bathwater — putting too much land in critical habitat, and that drives up the cost of homes without providing any benefit to species,” he said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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