Building on Vacant Land: Will Protected Species or Habitats Affect Your Plans?

If your construction will affect endangered or protected plants and animals, expect extra permitting requirements and government oversight.

You’d like to build on an undeveloped piece of land that you own or plan to buy. The land is beautiful, with a variety of flora and fauna adding inestimable value to its appeal as a building site.

But with that variety of habitat comes the likelihood of government protections for endangered species, both animal and plant, and their habitats. You will need to be sensitive to the possibility that federal, state, or local regulations may affect if, and how, you can build on your land.

How Federal Regulation of Endangered Species and Habitats Affect New-Home Building Plans

The federal government protects a number of endangered species and their habitats. Some, like the bald eagle, are famous; others, like grey wolves, have engendered contention where farmers and ranchers fear that uncontrolled wolf populations may threaten their herds.

The U.S. Fish and Wildlife Service publishes maps that locate federally protected endangered species near you, as well as the kinds of protections that the government will enforce (for example, limits on numbers of the species that can be “taken”, or minimum distances between the endangered habitat and any new construction).

The news isn’t always bad; the federal government offers grant or loan programs to finance the protection of endangered species and their environments that may be threatened by new construction. Often, property improvements that protect endangered habitats can also improve storm drainage or reduce damage from soil erosion.

How State Regulation of Endangered Species and Habitats Affect New-Home Building Plans

Many states protect a far greater number of endangered species than the federal government. For example, the Massachusetts Endangered Species Act lists as endangered, threatened or “special concern” species a total of ten types of fish, four types of amphibians, 15 reptiles, 19 birds, 14 mammals, a variety of invertebrates including six snails, six mussels, and seven crustaceans, 22 dragonflies and 46 butterflies and moths, as well as more than 150 plants.

Each state’s list is specific to its own geography; Louisiana’s list of protected species is dominated by the kinds of animals, birds, and insects that inhabit low-lying, swampy, or marshy wetlands, while Colorado’s list features species that predominate in high, mountainous environments.

Virtually all states publish lists of their endangered species and habitats, together with detailed maps showing the likely location of those species.

As with the federal government, many states have grant or loan programs that will defray, if not completely cover, the cost of protecting any endangered species on your land.

How County or Local Regulation of Endangered Species and Habitats Affect New Home Building Plans

It’s rare to find a county or local government that enforces a level of protection for endangered species that is more restrictive than the federal government's or a state government's. Even so, if you are persuaded that the land you want to build on contains animals or plants that are protected by the federal or a state government, it’s wise to also check with the Town Clerk or the Conservation Commission in the town or district where your land is located.

How to Comply With Applicable Federal, State, and Local Requirements

Almost all government agencies enforce their endangered species regulations by granting or denying permits that are specific to proposed construction or other activity. If your land is home to an endangered species, you may need to obtain one or more permits before going ahead with your project. The permits may limit the location of new construction or require special protections, like hay bales, during construction.

However, building without approval on a piece of land that contains an endangered species or its habitat is an invitation to disaster. If you have the slightest doubt about whether your plans are legal, consult an environmental engineer or an environmental biologist.

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