`No Surprises' Rules Revived for Development Despite Endangered Species
The Bush administration said Friday it will allow developers to complete construction and other projects even after belated discoveries that the work could endanger protected species.
The new rules from the Interior Department's Fish and Wildlife Service restore a Clinton-era initiative known as "no surprises." It will let federal agencies give blanket assurances to home builders, timber and mining companies and other developers that they won't have unforeseen requirements to protect rare species once a project has begun.
A federal judge had blocked the rules last June, telling the government it needed to hear more ideas from the public about the changes. The administration gathered the extra comment and moved ahead Friday in a victory for business over environmentalists.
Bobby Rayburn, president of the National Association of Home Builders, said the rules strike "a fair balance between two important priorities: protecting endangered species and building adequate, affordable housing."
Six groups led by California-based Spirit of the Sage Council, which represents some American Indians and environmentalists, had challenged the rules from the Fish and Wildlife Service and the Commerce Department's National Marine Fisheries Service, which enforce the Endangered Species Act.
Eric Glitzenstein, a Washington-based lawyer for the groups, said the rules remain "a legally and scientifically bankrupt policy that can only drive species closer to extinction."
The rules had been halted in June by U.S. District Judge Emmet G. Sullivan, who ordered the Fish and Wildlife Service to get more public input and re-evaluate the rules within six months. He said the government had violated the Administrative Procedure Act by denying the public a chance to weigh in on the rules and their consequences.
The Fish and Wildlife Service said it had received about 250 comments since June to comply with the judge's order, mostly from people who felt the rules were appropriate. Some told the government it should have more of a free hand to revoke permits, or that it should create a new government fund to pay for restoring habitat in cases where permits and the developers' conservation plans prove harmful.
A rule in effect from 1998 until this past June offered some immunity during development. In 1999, the Clinton administration adopted a second rule spelling out narrow circumstances under which permits could be revoked.
Under the twin rules, landowners and developers must develop plans for dealing with species' habitats if they want to obtain a permit that lets them off the hook for killing, injuring or harassing rare plants and animals.
Any such harm to species on the government's threatened and endangered list must be during "otherwise lawful development or land use activities," Fish and Wildlife officials said in a statement.
The government reserves the right to revoke a permit, if killing a plant or animal "will reduce the likelihood of (its) survival and recovery in the wild, ... and the Service cannot find a remedy to prevent this situation," the statement said.
So far, no permits have been revoked, said Fish and Wildlife spokesman Mitch Snow.
Revoking a permit "is not going to solve the fundamental problem because the failure of these political deals will only become apparent after the permit is no longer needed," said John Kostyack, senior counsel for the National Wildlife Federation, a conservation group. "The destruction happens up front; conservation happens later."
On the Net:
Fish and Wildlife Service: http://www.fws.gov
Spirit of the Sage Council: http://www.sagecouncil.com/
National Association of Home Builders: http://www.nahb.org