Federal Judge Yanks 'No Surprises' From Habitat Conservation Plans - 6/14/2004 - Attorney Lawyer Legal Building Codes Zoning

Federal Judge Yanks 'No Surprises' Certainty From Habitat Conservation Plans

On June 10, Judge Sullivan ordered the U.S. Fish and Wildlife Service (FWS) to stop issuing Section 10 Incidental Take Permits (ITPs) with No Surprises assurances — the primary incentive for builders and developers under the HCP program — until the agency completes its work on the Permit Revocation Rule (PRR).

The PRR specifies that the Service would only be able to revoke the take permits if it finds that the permitted development activies would reduce the likelikhood of survival and recovery of a species in the wild.

"Builders and developers should be cautious when applying for Section 10 ITPs or finalizing an HCP over the next six months," said NAHB President Bobby Rayburn. "Without 'No Surprises' assurances, ITPs and HCPs are more susceptible to litigation by reactionary groups opposed to the rule."

Judge Sullivan moderated the effect of his order by setting a deadline of Dec. 11 for the FWS to finalize the PRR. The judge could possibly lift the order sooner if the agency completes its work on the rule prior to the deadline.

FWS reproposed the PRR on May 25, opening public comment on the rule, its relationship to the "No Surprises" rule and the revocation standard that should apply to Incidental Take Permits. NAHB plans to submit comments on the proposed rule.

Fortunately, the agency is not seeking comments on the “No Surprises” rule itself, reducing the chance that it could be weakened or overturned in this latest rulemaking process. A vital component of Habitat Conservation Plans, “No Surprises” provides builders and developers with certainty that the government will not renege on the plan that has been agreed upon.

“The No Surprises and Permit Revocation Rules are explicitly linked and integral to the business of builders who develop Habitat Conservation Plans,” said NAHB President Bobby Rayburn. “The HCP program must be preserved, and incentives for builders and developers to support and participate in species conservation efforts must continue if we are to make real progress.”

Last December, Federal Judge Emmet Sullivan vacated and remanded the Permit Revocation Rule back to the agency for reconsideration.

“We must ensure that the new Permit Revocation Rule limits the circumstances under which the FWS can reopen already-issued permits in order to preserve the flexibility and certainty builders need to plan and develop long-term housing projects,” said Rayburn. “And through this certainty, builders can continue to keep costs down and housing affordable for all consumers.”

For additional information, e-mail Duane Desiderio or call him at 800-368-5242 x8146, or contact Christopher Galik,  x8663.