Final ESA Rules will Streamline the Permitting Process

In a victory for NAHB, the Trump administration today released final rules updating the Endangered Species Act (ESA) Section 7 Consultation requirements and new regulations governing the designation of critical habitat that will improve the overall efficiency of the ESA’s permitting process and make compliance less onerous for home builders and developers.

“These regulatory changes will streamline the cumbersome and bureaucratic permitting process and allow federal regulators to spend more time on species preservation rather than creating red tape,” said NAHB Chairman Greg Ugalde.

Builders and developers whose projects may affect endangered species or designated critical habitat for those species and that also require a federal permit (typically for working in wetlands) trigger the ESA’s Section 7 consultation process, which means they must first consult with the U.S. Fish and Wildlife Service (FWS) or the National Oceanographic and Atmospheric Administration (NOAA) before they start construction.This process usually results in permitting delays, project reconfiguration, and possibly the loss of buildable lots.

The final rules announced today will streamline the consultation process by encouraging FWS and NOAA to agree upon a set of general requirements that permittees must meet when the impacts on species will be minimal rather than requiring the federal agencies to perform an individual analysis for each proposed activity, thus shortening the wait for approvals.

The rule also requires FWS and NOAA to clearly specify what information the developer or builder must supply so the agencies can complete their review. These regulatory changes should help eliminate some of the uncertainties and time-consuming and often unnecessary permitting delays that have plagued the Section 7 consultation process since its inception.

The other significant rule change concerns the regulatory definition of “destruction or adverse modification” of critical habitat. Here, the administration removed the controversial language that held developers and builders responsible if federal regulators determined their construction activities could delay the development of habitat features that species need -- even if those habitat features were not found on their property. This change will better ensure that any habitat that is protected is actually of use to the species.