Environmental Issues Update - Endangered Species 1

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 3

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 5 **There has been nearly a 20% increase in the number of species listings expected between due to recent closed door listing settlements between FWS and environmental groups.

Recent Changes under Section 4: FWS – WildEarth Guardian Settlement 6

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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 8

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 10

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 12

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 13

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:  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! 15