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Make sure your project doesn't go extinct

Every new development project needs to comply with certain rules and regulations put forth by the federal or state government that apply to the project. Many of those issues revolve around the environment. Before you purchase the land you need, it would be advisable to be sure that it does not have any environmental issues.

With all of the environmental issues and acts that you need to keep track of, under both federal law and Georgia law, you may forget that you also need to make sure you don't violate the Endangered Species Act. This means potentially dealing with at least two more federal agencies: The U.S. National Marine Fisheries Service, which is under the U.S. Department of Commerce, and the U.S. Fish and Wildlife Service, which is under the Department of the Interior.

Will the ESA apply to my project?

Consider the fact that thousands of species fall into either the threatened or the endangered categories across the world. As of the beginning of 2013, 1,436 of those were here in the United States, and the federal government may have added more since that time. The odds that at least some of them are here in Georgia are pretty good. This means that you will need to ensure that the area you wish to develop is not in a natural habitat of one of these species. 

How does the ESA determine what goes on the list?

First, you need to know that "species" includes the varieties and subspecies of animals and plants. When it comes to vertebrates, this includes distinct segments of the population. The Fish and Wildlife Service uses the following factors to determine whether a species should be added to the list:

  • The existing protections are inadequate.
  • The scientific, recreational, educational or commercial communities may have overused the species.
  • The species' natural habitat may have suffered damage or destruction.
  • Predators or disease may have caused a decline in the number of the species.

In addition to the above factors, other manmade or natural factors may exist that caused the species to end up on the threatened or endangered list. If one or more of these species exists in the area you wish to develop, you could face an issue.

What can be done?

The best time to be sure that the land you want to use for your project is not an area protected by the ESA is before you purchase it. Even if you are working with a commercial transaction attorney, you may also want to consider adding an environmental attorney to your team. He or she could help you in your review of the potential issues the land may have, including those that deal with ESA compliance.

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