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NAHB recently filed a complaint in federal court against the Department of the Interior for a new initiative by the U.S. Fish and Wildlife Service (FWS) to list animal and plant species in portions of their range that are found to be significant even if their population in general is not threatened with extinction. The agency has misinterpreted the Endangered Species Act, NAHB says, and it has implemented this new regulation without allowing for required public comments.
“The ESA is critically important to NAHB and its members due to its impacts on land development and use,” NAHB said in its complaint.
“In essence, it gives FWS the authority to list the Central Park gray squirrel as endangered, even though the gray squirrel population as a whole is not endangered,” said NAHB staff counsel Jeff Augello.
The Fish and Wildlife Service has already listed the Preble’s Meadow jumping mouse in Colorado even though it does not qualify as a separate species, subspecies or distinct population segment and is not likely to become endangered in the foreseeable future throughout the balance of its range.
Listing members of species in portions of their ranges triggers federal permitting requirements for home builders, undermines habitat conservation planning efforts and generally increases the costs of doing business for home builders nationwide, NAHB contends, unlawfully subjecting their land use activities to federal regulation.
It is “arbitrary and capricious because it conflicts with the plain language of the ESA, and Congress’s intent that the secretary list populations of vertebrate fish and wildlife sparingly.” In addition, it was made without public notice and comment, which is required before an agency can issue any rule that has legal consequences.
In a motion filed in late July, the Department of the Interior asked the district court to dismiss NAHB’s complaint, and NAHB will be responding to that motion by the end of this month.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.