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Environmentalists Win Ruling in a Suit Against Developers (06/11/04) New York Times
Judge halts endangered species permit rule
Orders agencies to incorporate more public input
The Associated Press
Updated: 9:17 a.m. ET June 11, 2004

WASHINGTON - Private builders were irate and environmentalists ecstatic after a federal judge suspended a Clinton-era rule on endangered species and ordered federal agencies to allow more public input.

The judge ruled Thursday that the Fish and Wildlife Service and National Marine Fisheries Service must revise what are known as the "no surprises" rule, which assured industry it wouldn’t face more requirements for protecting species once a federal permit is approved.

“Now, a permit isn’t worth the paper it’s written on,” said Duane Desiderio, a vice president of the National Association of Home Builders. He described the ruling as a serious setback for his industry, especially because most species whose survival is imperiled are found on private property and near developed areas.

“The underlying thrust of the ’no surprises’ rule is, a deal is a deal. This provision was intended to strike a balance: You can’t stop all development, but you need to protect species,” Desiderio said.

Activists see species saved
But six groups that had challenged the rules, led by California-based Spirit of the Sage Council, which represents American Indians and environmentalists, hailed the judge’s ruling as a breakthrough. The rules spelled out when permits could be changed or revoked.

“This is a message by the court that these policies have to be revisited, and that a much higher emphasis has to be put on species protections,” said Eric Glitzenstein, a Washington-based attorney for the groups.

He said revising the rules with more public and scientific input “may determine whether hundreds of species survive or go extinct.”

What judge ordered
Judge Emmet Sullivan of the U.S. District Court for the District of Columbia barred at least until Dec. 10 the federal agencies from continuing to provide blanket assurances against future requirements under the “no surprises” and permit revocation rules.

The rules were adopted in 1998 to give home builders, timber and mining companies and other developers some immunity against unforeseen twists in providing species protections.

Sullivan criticized the government’s arguments supporting those rules as contradictory and said that as a result of the rules the “public has consistently been denied the opportunity ... to weigh in on decisions likely to have significant effects on public resources.”

Sullivan gave the agencies until Dec. 10 to revise their regulations with more public input. Government officials did not immediately respond to requests for comment.

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