As reported by HGTV Pro today, the National Association of Home Builders (NAHB) filed a complaint in federal court against the Department of the Interior because of a new pro-animal initiative by the U.S. Fish and Wildlife Service. The initiative seems to bypass all normal rules and regulation filing procedures and seeks to identify low species population in particular areas – even if the species isn’t endangered in general. As you can imagine – this is resulting in all manner of increased costs and headaches for commercial and residential builders across the country.
The NASB position is that the US Fish and Wildlife Service has completely misinterpreted the Endangered Species Act. In addition, they are pointing out that they have essentially implemented a brand new regulation without allowing for the required public comments (typical when an agency is issuing a rule that has legal consequences.)
To us, it just seems like another grab for animal rights and at a time when the industry is already reeling from a housing-bubble-induced recession.
“The ESA is critically important to NAHB and its members due to its impacts on land development and use. 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.”
– NAHB staff counsel Jeff Augello.
HGTV gives an example of a current regulation that has resulted in a conflict:
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.
The new regulation seems oddly loose and subject to misinterpretation on a number of levels. In addition, the endangered species law is designed to list populations of vertebrate fish and wildlife sparingly so as to be reasonable and just in the use of the law with regards to preventing growth and development. In addition, it was made without public notice and comment.
The Department of the Interior has, unfortunately, already asked the district court to dismiss NAHB’s complaint, and NAHB will be responding to that motion by the end of this month. We hope they win this one as we don’t want to start counting tree frogs on our properties before pulling permits anytime soon.
