The White House Office of Management and Budget released a final Endangered Species Act (ESA) rulemaking on Friday that could make it more difficult for developers and builders to obtain federal wetland permits.

NAHB is particularly concerned about how these rules could increase the size of future critical habitat designations. Once adopted, these ESA regulations will dramatically expand what types of habitat qualify as suitable for listed species.

Historically, federal regulators focused on areas occupied by the species and areas with specific physical or biological features to support the species.

This new rule would allow federal regulators to designate habitat that does not include the species nor any important physical or biological features, provided these areas could eventually develop such features or be used by the species.

The rules will be jointly administered by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration and become enforceable 30 days after being published in the Federal Register, which is expected within a week.

Once finalized, these regulations will make it extremely difficult for landowners and states to refute a federal determination that their properties or state lands should be designated as critical habitat.

These ESA rules, when combined with the expanded definition of ‘waters of the U.S.’ under the Clean Water Act, will significantly and unnecessarily increase the areas regulated by the federal government while providing little added environmental protection.

For additional information, contact Mike Mittelholzer.