Transcript Endangered Species Act Update

Environmental Issues Update Endangered Species
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Why should builders we care about the
ESA?
 Approximately half of all federally listed species
have roughly 80% of their habitat on private land.
(USFWS, 2008)
 Presence of a listed species on private land puts
restrictions on land use and additional regulatory
requirements on the landowner when there is a
federal nexus. For example:
Mitigation measures for possible impact
 Expensive impact studies
 Smaller/lost lots to allow for conservation easements
 Restrictions on land grading
What ESA Programs and Actions Impact
Landowners?
Listing, delisting, change in species listing
status, Critical habitat designation (Section
4 of ESA)
Consultation
Habitat Conservation Plans
Incidental Take Permits
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Section 4: Listing/Delisting of Species and
Critical Habitat Designations
 How species are listed
 How critical habitat is designated
 Procedures for consideration of species protection
petitions
 Special Rules applying “take” prohibitions for listed
species
 Recovery Plans for listed species
Species Currently Listed under the ESA
**There has been nearly a 20% increase in the number
of species listings expected between 2011-2016 due to
recent closed door listing settlements between FWS and
environmental groups.
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Recent Changes under Section 4:
FWS –
WildEarth Guardian Settlement
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Recent Changes to Section 4
Programmatic Change
At the time of listing, FWS is now releasing proposed critical
habitat designations.
Rule finalized in 2013
Economic Analysis for Critical Habitat Designations:
Requires economic analyses for the proposed critical habitat
released at the time of critical habitat designation
Requires smaller scope of economic costs included in analysis
(only federal costs, not local or business economic costs)
Allows for a qualitative approach rather than a quantitative
approach
i.e. FWS can look at reports regarding a habitat rather than
conducting actual research when making a designation
determination
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Section 7: ESA Consultation Program
 Requires all federal agencies to carry out programs for the conservation
of endangered and threatened species
 Requires that the federal agencies to work toward those goals “in
consultation with and with the assistance of” the Services (FWS &
NMFS)
 Requires agencies to avoid/minimize jeopardizing listed species or
adversely modifying their designated critical habitat.
 2 Types of Consultations
 Informal (~30 days):
occurs when activity may affect but is not likely to adversely
affect listed species or critical habitat.
 Formal (~135 days):
When an activity is likely to adversely affect a species or if the
Services disagree with the action agency’s decision that an
activity is not likely to adversely affect listed species.
Proposed Change to Section 7
 On September 4 FWS proposed a modification to the
rule governing Incidental Take Statements under the
Section 7 Consultation Program to:
Allow the use of “surrogates” to express the amount/extent of
anticipated take in an incidental take statement (ITS)
 “surrogates” are replacement measures to establish the impact of a take
on the species
 “Surrogates” would include: habitat, ecological conditions, or a similar
affected species
Modify ITSs for “programmatic” federal actions
 No longer include specific amount of anticipated take
 Define “Programmatic incidental take statement” to identify ways to
minimize the impacts of an anticipated take and the thresholds of a take
that may trigger re-initiation of consultation
Comments due November 4
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Section 9 and 10: Take Provisions
 Section 9 Take Prohibitions
“Prohibited acts” for endangered species include “taking” as well as
the import, export, possession and interestate shipment.
“Take” means persons cannot harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture or collect a protected species
 Section 10 Incidental Take Permit (ITPs) and Habitat
Conservation Plans (HCPs)
Establish procedures for development of habitat conservation plans
for protection of listed species and/or designated critical habitat
and authorizes issuance of incidental take authorizations for
participants in an HCP
Recent ESA Changes: What are the Impacts
to the Residential Construction Industry?
New Species, critical habitat and regulations will
result in:
Increased number of species listed as endangered and
threatened
Increased number of lands designated as critical habitat
Increased oversight
Increased delays
Increased mitigation requirements
Increased costs
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What Can Builders Do?
Get involved!
Participate in public comment periods
Send NAHB your ideas/concerns for proposed rules impacting
your
Create your own comment letter
Get your local government to respond to proposed listings
and policy changes that will adversely impact the local
economy
Entertain the possibility of adopting habitat conservation
plans
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NAHB Tools
1. Species Listing Tracking
Currently available: NAHB Species Finder Tool
Web address: Nahb.org/SpeciesFinder
Settlement species data identified to the county level
Links to other pertinent information
2. ESA Web Portal
 Web address: www.nahb.org/esa
 Provides background information on the ESA and the
regulations that most impact the residential construction
industry
 Track listing decisions that impact multiple states
Thank you!
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