The Effect of the Endangered Species Act on Housing Construction

Section 7 of the Endangered Species Act provides that federal agencies ensure that their actions do not jeopardize the continued existence of designated endangered plants or animals or their critical habitats. Although federal agencies are involved to some degree in over twenty-five percent of new housing starts in the United States, the courts have not yet determined the degree of federal involvement in the construction of housing units that will suffice to invoke the protection of the Endangered Species Act. This Article traces the history of the regulatory efforts by Congress to protect scarce plants and animals. After examining the Act itself, the Article reviews several types of federal involvement in housing construction, and rates the probable sufficiency of each type of involvement to justify invoking the Act.

The Article concludes that substantial involvement in housing construction may provide a basis for broad application of section 7.