Return to Old ESA Rules Expected to Delay Approvals
Rescinding modifications made to the Endangered Species Act (ESA) at the end of last year, the Obama Administration has reinstituted a 1986 rule requiring federal agencies to consult with the Fish and Wildlife Service or the National Oceanic and Atmospheric Administration before moving forward on projects that may affect endangered species.
The move represents a return to more government bureaucracy in the approval process, but adds no protection for threatened and endangered species, said NAHB.
In 2005, the U.S. Government Accountability Office found that the ESA consultation process was so ineffective that the agencies missed up to 40% of their deadlines, delaying some projects for two years or more.
In December, NAHB hailed the Bush Administration’s decision to limit the scope of the consultation process and to eliminate it entirely in more routine cases.
That policy change was implemented after a 60-day review period for private landowners, environmental advocacy groups and others and the subsequent opportunity for public comments. However, no public input was provided in the decision to revert to the old consultation requirements.
“This action is regrettable,” said NAHB Chairman Joe Robson. “The Administration is rushing to revoke a legally issued federal rule without public notice and comment.” An unpopular and obscure provision added to the recent omnibus appropriations bill allowed the ESA regulation to be changed in this manner, he noted.
“The appropriate way to make significant changes to a federal regulation is to allow for notice and comment," he said. "Instead, the secretaries of Commerce and Interior were given the authority to unilaterally change the law. That's hardly an argument for consensus or transparency."
On the positive side, Robson said, the Administration did not address whether the ESA should take into account the effects of global climate change when determining “critical habitat” for endangered species.
A number of environmental advocates would like to see the ESA used to regulate the emission of green house gases. Activists, for instance, have lobbied for development and transportation emission restrictions in Southern California to help protect the far-away Arctic habitat of polar bears.
NAHB has long contended that the ESA was never intended to be a vehicle to address global warming.
“The changes to the Endangered Species Act consultation regulations made by the Bush Administration made headlines because they occurred toward the end of the President’s second term — but not all those changes were controversial,” Robson said.
“In fact, many were consistent with findings presented by the General Accountability Office to Congress on the challenges federal agencies face in administering this cumbersome regulatory program, on the extensive permitting delays it imposes upon the regulated community and — worst of all — on the inadequate job it is doing in protecting species. Now, we’re back to square one.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.