Trump Administration Plans ESA Reform

Filed in Codes and Regulations, Environmental by on December 28, 2017 0 Comments

The Trump administration intends to solicit comments on two new draft regulations designed to reform the Endangered Species Act (ESA) and make compliance less onerous for home builders and developers.

Proposed reforms to the ESA’s Section 7 Consultation requirements and new regulations governing the designation of critical habitat would affect landowners whose projects require a federal permit because they either impact endangered species or their designated “critical habitat.”

While the precise content of these regulations won’t be known until they are published in the Federal Register in early 2018, the intent to reform and streamline them is a move in the right direction and, in part, the result of NAHB initiatives.

Earlier this year, NAHB submitted comments urging administration officials to rescind changes to the designation of critical habitat put in place in 2016 during the Obama administration in response to President Trump’s executive order on Enforcing the Regulatory Reform Agenda. The adminstration’s proposals are consistent with NAHB’s recommendations.

These changes included a new regulatory definition of “geographical areas occupied by the species” to designate private property as critical habitat even if that property lacked the endangered species in question and was incapable of supporting the endangered species.

Once a property has been designated as critical habitat, any activity requiring a federal permit, such as a federal wetlands permit, triggers the ESA’s Section 7 Consultation process, allowing federal regulators to impose restrictions or additional requirements upon developers and builders.

The Fish and Wildlife Service has already agreed to reopen a regulatory policy on compensatory mitigation under the ESA and specifically take public comment on the appropriateness of requiring mitigation to set a “net conservation benefit” for the species or habitat being impacted by the proposed activity.

NAHB had opposed this policy when it was proposed by the Obama administration as being inconsistent with existing ESA requirements. For additional information, contact Michael Mittelholzer at 800-368-5242, x 8660.

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