In response to litigation brought by NAHB, the federal government has withdrawn a costly Endangered Species Act (ESA) rule that had the potential to have an adverse impact on builders and developers nationwide.

At the heart of the case was an opinion issued by the solicitor general of the Interior Department in March of 2007, which re-interpreted the definitions of an endangered and threatened species.

Under the opinion, small segments of a species that would not otherwise be entitled to ESA protection were deemed eligible for it.

For example, while the common grey squirrel is far from being an endangered species, under the opinion, grey squirrels found on Manhattan might be entitled to ESA protection if the government determined that their numbers on the Island were shrinking.

This nonsensical approach extending federal protections to segments of species triggered NAHB's involvement.

In May of 2009, the association filed a federal lawsuit challenging the opinion on the grounds that the government failed to solicit required public comments on the rule and based it on an incorrect interpretation of the ESA.

NAHB asked the court to invalidate the opinion.

With the facts on NAHB’s side, the government on May 4 chose to voluntarily withdraw its opinion instead of going to court.

Since the opinion was issued in 2007, the U.S. Fish and Wildlife Service had cited and applied the opinion more than 27 times, resulting in costly and unnecessary mitigation requirements for developers.

If the opinion had remained in effect, NAHB members would have continued to face the imposition of millions of dollars of burdensome ESA regulatory costs year after year.

For more information, email Jeff Augello at NAHB, or call him at 800-368-5242 x8490.