The Effect of the Endangered Species Act on Housing Construction, 33 Hastings L.J

Hastings Law Journal Volume 33 | Issue 3 Article 2 1-1982 The ffecE t of the Endangered Species Act on Housing Construction Katharine Rosenberry Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Katharine Rosenberry, The Effect of the Endangered Species Act on Housing Construction, 33 Hastings L.J. 551 (1982). Available at: https://repository.uchastings.edu/hastings_law_journal/vol33/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact wangangela@uchastings.edu. The Effect of the Endangered Species Act on Housing Construction By KATHARINE ROSENBERRY* Section 7 of the Endangered Species Act (ESA) I provides that federal agencies must ensure that their actions do not jeopardize the continued existence of designated plants or animals2 or their designated critical habitats.3 While it is difficult to estimate, federal agencies are involved to some degree in over twenty-five percent of new housing starts.4 Section 7 thus requires federal agencies involved in housing * Associate Professor, California Western School of Law. B.A.,' 1965, Northwestern University; M. Ed., 1966, University of Illinois; 1975, J.D., University of San Diego. The valuable research assistance of Joanne Birnberg and Mary Vance is gratefully acknowledged. 1. 16 U.S.C. §§ 1531-1543 (1976 & Supp. III 1979). 2. 50 C.F.R. §§ 17.11, 17.12, 222.23, 227.4 (1980). 3. 50 C.F.R. §§ 17.95, 17.96 (1980). 4. It is difficult to obtain complete statistics on new housing starts for several reasons. First, statistics on federally funded housing starts are not kept in one central location. For example, statistics on housing starts funded with block grants are kept by the Community Planning and Development Division of the Department of Housing and Urban Develop- ment, while statistics on low-income housing starts are kept by the Management Informa- tion Systems Division of the same department. Thus, to obtain accurate statistics, one must first know the federal programs that authorize funding of new housing starts and then the governmental body that administers each program. The statistics below are thus incomplete; they are based only on a sampling of federal programs funding new housing starts. Second, the loan guarantee statistics are for the Department of Housing and Urban Development's (HUD) and the Veterans Administration's (VA) loan guarantee programs only. While these two programs are the most extensive, they are not the only federal loan guarantee programs. The statistics are thus once again incomplete. Finally, one cannot add the number of HUD insured housing units to the number of VA insured units to arrive at a total number of insured units because a dwelling unit may be insured under both programs and appear in both HUD and VA statistics. Similarly, a unit may be both funded and insured by HUD and again appear twice. In fiscal year 1980, HUD funded 101,054 housing starts under the § 8 program, see 42 U.S.C. § 1437f (1976 & Supp. III 1979), 23,380 starts under the traditional public housing program, 10,676 under the Urban Development Action Grant Program, and 23,160 under the § 202 program, for a total of 158,270 units or approximately ten percent of the new housing starts for 1980. Approximately nine percent of the new housing starts in fiscal years 1978 and 1979 were funded in ,this manner. Privately-owned housing unit starts under a HUD loan guarantee program totaled [551] THE HASTINGS LAW JOURNAL [Vol. 33 construction to ensure that construction is not likely to jeopardize des- 5 ignated species. The published opinions discussing section 7 have considered the sale of federal leases, 6 rules promulgated by federal agencies, 7 and federal public works projects.8 Housing construction has not been the sub- ject of any reported decision under section 7, despite housing construction's great potential for destroying native flora and fauna. Consequently, the courts have not yet determined the degree of federal involvement in the construction of housing units necessary to invoke ESA. This Article reviews the history of Congress' regulatory efforts to protect animals and plants threatened with extinction. It next examines 141,054 in 1980, while new housing starts under the VA loan guarantee program totaled 94,743 for the year. Thus, in 1980, between 150,000 and 250,000 starts were insured under these programs, or between ten and sixteen percent of the new year's housing starts. The figures are slightly higher for 1978 and 1979; 200,000 to 300,000 new housing starts were insured under the VA and HUD programs in each of those years. Letter from Donald C. Demitros, Director of Management Information Systems Division of the Department of Housing and Urban Development, to Katharine Rosenberry (Feb. 17, 1981, and June 4, 1981) (relying on the 1978, 1979, and 1980 Statistical Abstract of the United States); Letter from Albert W. Glass, Director of Loan Guaranty Service, Veterans Administration, Wash- ington, D.C., to Katharine Rosenberry (June 2, 1981); Letter from William Bowman, Com- munity Planning and Development Division of the Department of Housing and Urban Development, to Katharine Rosenberry (July 27, 1981); Letter from Thomas E. Bacon, Jr., Communication Services, Office of Public Affairs, Department of Housing and Urban De- velopment, to Katharine Rosenberry (July 6, 1981). Copies of all letters cited in this Article are on file with the Hastings Law Journal. 5. Section 7 is not the only provision of the Endangered Species Act (ESA) that can affect housing construction. Housing developments also may be affected by § 9, which pro- hibits any person from "taking" a listed endangered animal. 16 U.S.C. § 1538(a)(l)(B) (1976 & Supp. III 1979). See discussion of "taking" in note 26 infra. Section 9 probably does not expand the responsibilities of federal agencies beyond those already imposed by § 7. Section 7 and its regulations already require federal agencies to ensure that their actions will not jeopardize the continued existence of a listed species or adversely modify its critical habitat. Section 9, however, also applies to actions by private individuals; one may not inten- tionally or negligently harm or harass a protected animal. Section 9's effect is limited by the fact that private individuals are not similarly prohibited from harassing plants. No published decision fully explores the possible effect of § 9. For example, a court holding that a person may not develop his or her property because to do so would harass or harm a listed animal would be faced with a taking issue. The landowner would argue that the federal government had inversely condemned his or her property. Thus, while there is presently a dearth of cases dealing with § 9, the potential for litigation is significant. 6. Eg, North Slope Borough v. Andrus, 486 F. Supp. 332 (D.D.C. 1980). 7. E.g., Connor v. Andrus, 453 F. Supp. 1037 (W.D. Tex. 1978). 8. E.g., TVA v. Hill, 437 U.S. 153 (1978) (construction of a dam); Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976) (construction of a dam); National Wildlife Federa- tion v. Coleman, 529 F.2d 359 (5th Cir.), cert. denied, 429 U.S. 979 (1976) (construction of an interstate highway). January 1982] ENDANGERED SPECIES ACT the Endangered Species Act and its procedures. Finally, the Article examines several types of federal involvement in housing construction, and discusses the extent to which each type of involvement may be controlled by ESA. History of the Endangered Species Act Previous Protective Acts • Congress passed the first comprehensive act for the conservation of endangered fish and wildlife in 1966.9 The 1966 Act was designed to establish "a program for the conservation, protection, restoration and propagation of [endangered] species" and "to consolidate, restate and modify" the existing collection of authorities protecting various species.' 0 The 1966 Act provided protection by controlling activities that could occur on federal lands within the Federal Wildlife Refuge Sys- tem." It also authorized the Secretary of the Interior to designate species of endangered native fish and wildlife and to acquire land and accept funds for the protection of these species. 12 The 1966 Act served merely as a policy statement, however, rather than as a vehicle for controlling federal actions. First, the 1966 Act affected only lands located in the Wildlife Refuge System. Second, it required the Secretaries of the Interior, Agriculture, and Defense to protect endangered species only "insofar as [was] practicable and con- sistent with the primary purposes" of their departments,' 3 and en- couraged federal agencies to exercise their authority in furtherance of the 1966 Act only "where practicable."' 14 Thus, the 1966 Act did not control the effects of federal agencies on endangered species and their habitats. 9. Endangered Species Act of 1966, Pub. L. No. 89-669, 80 Stat. 926. The 1966 Act was repealed in 1973, except for §§ 4 and 5, which appear as amended at 16 U.S.C. §§ 668dd-668ee (1976 & Supp. III 1979). Congress had passed acts protecting particular species prior to 1966. See, e.g., Land and Water Conservation Fund Act of 1965, Pub. L. No. 88-578, 78 Stat. 897 (codified as amended at 16 U.S.C. §§ 4601-4 to 4601-11 (1976 & Supp. III 1979)); Black Bass Act of 1926, ch. 346, 44 Stat. 576 (codified as amended at 16 U.S.C. §§ 851-856 (1976)); Migratory Bird Treaty Act of 1918, ch.

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