Feds Loosen Building Restrictions Near Threatened Bats

Common sense claimed a victory this week when the National Fish and Wildlife Service determined that it’s “not prudent” to designate any “critical habitat” within the 32-state range of the endangered northern long-eared bat.

The decision, published in the Federal Register today, brings an end to the latest chapter of the fight to save the bat, which has been decimated by reasons having nothing to do with land development and everything to do with the spread of a disease called white-nose syndrome in their typical nesting and breeding grounds.

It’s important for members to remember the bat is still a federally protected, “threatened” species under the Endangered Species Act.

That means developers and builders cannot undertake otherwise lawful activities if the Service determines that a proposed project may result in the intentional injury, harm or death of a bat.

Furthermore, if the developer needs to apply for a federal permit, such as a wetlands permit, the Service may determine that allowing the development to take place may jeopardize the bat.

To avoid violating the law in areas with northern long-eared bat habitats, builders and developers are urged to comply with FWS NLEB 4(d) rules: specifically, that developers avoid clearing trees within a quarter-mile from where the bats are known to hibernate, or within 150 feet of a known roost tree between June 1 and July 31.

Because the bat uses so many types of trees to roost in during the summer, regulators could make no specific determination of “physical and biological features” that are “essential to the conservation of the species” – a requirement for critical habitat designations which require builders to seek a special permit before beginning any construction or development on a property.

And while bats will find locations such as caves and abandoned mine shafts to spend the winters, designating them as protected areas would only encourage bat enthusiasts to further endanger the animals by pointing out specifically where they roost, regulators decided.

Earlier this year, the National Association of Home Builders helped regulators understand that the restrictions the Service had placed on development – not allowing any within a quarter-mile of a nesting site in the summer – would pretty much shut down all home building from Maine to Montana. But the decision to loosen restrictions and add more flexibility has been met with blowback by environmental groups, who are now likely to challenge this one as well.

Threatened Bat Species Could Endanger Building Permits

The listing of the Northern Long-Eared Bat as threatened under the Endangered Species Act becomes effective May 4 – and that’s a change that will affect more than 1,750 counties in the Eastern and North Central United States, including Greenville and Pickens counties.

The action restricts the removal of trees of certain sizes and diameters between mid-April and mid-September, which is the bats’ migration season.

The 1,750 counties accounted for 53% of the building permits pulled in 2014.

Your Home Builders Association believes that the U.S. Fish and Wildlife Service (FWS) has underestimated the degree of the impact of this listing. Specifically, FWS does not understand the time-sensitive nature of home building and assumes proposed projects that may affect the bats’ summer habitat can simply wait until they start hibernating in October.

Once the listing is effective, any property with or near known hibernation or maternity roost sites will need to consult with regulators and get a permit to proceed – a process likely to delay work for several months or even years, depending on the kind of permit needed.

While NAHB will seek an exemption for our members under the 4(d) rule, projects undertaken after May 4 must comply with the ESA rulings. Learn more by reading this FAQ.

Government Affairs Result: ESA Rule will not be used to regulate climate change

When the federal government officially listed polar bears as a threatened species under the Endangered Species Act (ESA) in 2008, environmental groups sought to compel the state of California to place restrictions on residential development due to the presumed effects of climate change on polar sea ice.

Concerned that the Fish and Wildlife Service (FWS) might overstep its bounds in this way, NAHB urged FWS to proceed cautiously in developing rules for protecting polar bears and to “properly limit the scope” of its listing to that which is conferred by the governing statute. This week, our efforts proved successful when the FWS re-issued a final special rule for managing the polar bear that does NOT employ the ESA to regulate greenhouse gas emissions. Rather, the rule specifically states that activities outside the bear’s range are not subject to ESA “incidental take” prohibitions.

This issue has far-reaching ramifications because of the potential for expansion of ESA regulatory authority to include activities related to global warming — no matter how distant those activities may be from the location of the endangered species in question. Moreover, in view of the President’s comments in his latest State of the Union address in which he promised to pursue actions to limit greenhouse gas emissions, this latest decision to stay the course on a Bush-era policy that the ESA is not the appropriate federal regulatory tool for accomplishing that goal is a truly welcome development for NAHB members. Read NAHB’s official comments here

New FEMA Rules Shift ESA Consultation Requirements to Developers

The Federal Emergency Management Agency (FEMA) on Oct. 1 enacted new rules that apply to many developers in flood-prone areas that provide habitat for threatened and endangered species. The new rules, contained in Procedure Memorandum 64, were issued in response to several successful lawsuits by environmental groups against FEMA for not appropriately considering its responsibilities under the Endangered Species Act (ESA) when allowing development to take place. Now, FEMA is shifting those responsibilities to the landowners themselves.

When a project is proposed for a parcel of land within a floodplain, FEMA can issue a Conditional Letter of Map Revision (CLOMR) to state that the project, if built as proposed, would sufficiently modify the floodway, base-flow elevation and/or 100-year floodplain as shown on FEMA’s Flood Insurance Rate Maps. Similarly, a Conditional Letter of Map Revision based on Fill (CLOMR-F) is used by FEMA when the parcel or proposed structure will be elevated by fill material to be above the base, 100-year floodplain.

The change indicated by Procedure Memorandum 64, requiring private landowners to provide proof that they are complying with the provisions of the Endangered Species Act before making any requests of FEMA, will likely add time and expense to any project in which property owners need flood map revisions to move forward, because they may first need to complete the Section 7 or Section 10 permit process. The Section 7 process can take 90 to 135 days to complete, while the Section 10 permit process can take about two years.

Going forward, NAHB will be adding clarifying information on this issue to our ESA section of NAHB.org, and we are reaching out to both FEMA and the Fish and Wildlife Service to discuss the implications of FEMA’s memorandum.

Read more in Nation’s Building News, or contact Matt Watkins (800-368-5242, x8327) for more information.