In court documents submitted last month to the U.S. District Court in the District of Columbia, the National Marine Fisheries Service (NMFS) agreed to rescind its critical habitat designation for 19 West Coast salmon and steelhead.

The original lawsuit was filed by the filed by the National Association of Home Builders (NAHB), the Building Industry Association of Washington (BIAW), Oregon Building Industry Association (OBIA), Tice Ranch, L.P., The Kitsap County Association of Homebuilders (HBA) and 12 other Pacific Northwest-based building groups and local governments. The agreement marks a major victory for not only builders but for property rights advocates nationwide.

The settlement calls for NMFS to craft a new designation based on sound science and an analysis of the economic impacts of its designations. In return, NAHB agreed to dismiss its Endangered Species Act (ESA) suit against the federal agency.

“We applaud the government for doing the right thing,’’ said Bruce Smith, NAHB’s Immediate Past President and a builder from Walnut Creek, Calif., who is active in the association’s ESA reform efforts. “This proposed agreement marks a major turning point in how we protect threatened and endangered species under the ESA. From day one, NAHB has said that environmental protection of salmon should be based on three key elements: the law, sound science, and a consideration of the economic impacts.’’

In the lawsuit, which was filed in June of 2000, NAHB and 16 other groups that included the Kitsap County HBA, charged that the areas designated as critical habitat by NMFS are, “excessive, unduly vague, not justified as essential to conserve the listed species, and not based upon a required analysis of economic impacts.’’

In the lawsuit, which was filed in June of 2000, NAHB and 16 other groups that included the Kitsap County HBA, charged that the areas designated as critical habitat by NMFS are, “excessive, unduly vague, not justified as essential to conserve the listed species, and not based upon a required analysis of economic impacts.’’

NAHB also asserted that “the critical habitat designations are not justified by fact or law because NMFS designated every possible habitat area and adjacent or connected non-habitat to avoid the necessary work of determining what areas are actually occupied by, and essential to, the conservation of the listed salmon and steelhead.’’ NAHB also argued that NMFS did not determine that these areas were critical to salmon or steelhead.

In what could have been viewed as a “smoking gun,” NAHB uncovered a 1998 inter-agency memo in which a former high-level NMFS employee based in the Northwest openly admitted that designating as much area as possible to avoid doing the work to determine what areas were in fact critical, was standard operating procedure for the agency. The memo stated that, “When we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat is needed for a salmon population.” The official added that no analysis of habitat need was performed, “because we lack information.’’

The critical habitat designation has enormous regulatory impacts on the use of land and water because the ESA prohibits any federal project, permit, or federally funded action from, “adversely modifying’’ critical habitat. Federal critical habitat designation is also a key trigger for many state and local land use restrictions.

The designation challenged by NAHB encompasses a geographic region spanning 150 watersheds, river segments, bays and estuaries throughout Washington, Oregon, California and Idaho.

Smith added that, “With this agreement on our mutual obligations under the ESA, NMFS concurs with NAHB on the need for salmon protection that uses better scientific data. NMFS also agrees with NAHB on the need for salmon protection that considers the economic impact on communities in Washington, Oregon, Idaho and California. This agreement gives us a chance to work together and create a more balanced approach. Ultimately, we think we can come up with more science-based salmon protection and environmentally sensitive land use while still meeting housing demand in these communities.”

More information on the agreement is available at www.kitsaphba.com.