NAHB Settlement Clarifies ‘Critical Habitat’ for Endangered Species

Filed in Codes and Regulations, Environmental, Legal by on March 20, 2018 0 Comments

barbed wireNAHB and three other national trade associations have reached a major settlement agreement with the U.S. Fish and Wildlife Service and National Marine Fisheries Service, committing the Services to reconsider two rules finalized by the previous Administration that made sweeping and unlawful changes to long-existing Endangered Species Act (ESA) regulations.

The rules at issue govern the designation of public and private land as “critical habitat,” and determine whether federal actions cause “adverse modification” of land designated as critical habitat.

NAHB was joined by the Utility Water Act Group, National Rural Electric Cooperative Association and American Petroleum Institute.

The coalition’s complaint detailed how the changes to the critical habitat regulations went far beyond the limits Congress specified in the ESA, resulting in burdensome and costly implications for a wide range of commercial activities on private, state and federal lands and waters.

The Services have committed to reconsider the rules and submit any new proposed rules amending the challenged regulations to the Office of Management and Budget within the next 60 days.

This settlement resulted from the coalition’s challenge to the unlawful regulations in Utility Water Act Group, et al. v. National Marine Fisheries Services, et al., No. 1:17-cv-00206-CG-MU (Southern District of Alabama, May 11, 2017).

The coalition’s complaint explains how the regulations violate the law. For example, the rules allow the Services to designate areas as critical habitat even when they are not actually occupied by a listed species.

To do so, the Services can consider any potential changes to the habitat and whether those changes might result in the species using that area in the future. Those changes could make the property “essential for the conservation of the species.”

In turn, that would allow project-altering — if not project-halting — adverse modification findings based on the risk that an impact to an area could potentially become a critical habitat.

The confusing rules impose substantial new burdens, including costs and delays on our members, negatively affecting housing affordability.

The coalition filed the lawsuit to ensure that NAHB members’ essential and time-sensitive projects can continue without increased and disproportionate regulatory burdens and costs, particularly since the regulations fail to provide any demonstrated benefit to the species in many cases.

A group of 20 states likewise challenged the rules on the same or similar grounds. As part of the settlement, the coalition has agreed to voluntarily dismiss its lawsuit, but retains the right to refile should the Services fail to address the coalition’s concerns in future proposals.

For additional information, contact Tom Ward.



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