At issue was a challenge to the Commission’s authority to participate in Habitat Conservation Plans (HCPs) and Natural Community Conservation Programs (NCCPs). When the drama ended on January 10, it appeared that ground had been neither gained nor lost, though perhaps some new pathways for resolving perceived conflicts were opened.

Last fall, the Commission tried to get federal approval for a “simple” procedural change in the regulatory permit process. It was meant to assure that the Commission could provide timely review, for consistency with California’s coastal management program, of such HCPs and NCCPs as might affect coastal resources. This move was met with vehement opposition from the development and extraction industries. In the end, the Commission reluctantly backed down, at the strong suggestion of Secretary of Resources Mary D. Nichols, who brought bad news from Washington.

Fogged in by bureaucratic verbiage and obscured by wrangling over procedures, the flare-up was, in the view of the Commission’s executive officer, Peter Douglas, and its chair, Sara Wan, the result of a major attack on the Commission’s ability to carry out its mandate for protecting the coast.

Habitat conservation planning is a process intended to accommodate growth and development while also protecting endangered species (see Winter 1996-97 issue of Coast & Ocean). It allows for the destruction of some habitat, with “incidental take” of the listed species, in exchange for setting up “reserves” of more sustainable habitat elsewhere for the same species.

An HCP is negotiated among local governments, landowners and developers, U.S. Fish and Wildlife Service (FWS), Department of Fish and Game (DFG), and other agencies. The FWS issues an Incidental Take Permit (ITP), which exempts the landowner from provisions of the federal Endangered Species Act on the specified property. Once an HCP is in place, federal law provides that the property owner is immune to further federal intervention on behalf of any endangered species covered.

HCPs are increasingly popular, as are Natural Community Conservation Programs (NCCPs), landscape-sized plans that take an ecoysystem approach. They have support both in the development community and among conservationists, but critics fear they can become wolves in sheep’s clothing. They are not meant to supplant existing laws but, without proper safeguards, could undermine them.

Was Wolf in Sheep Clothing At Large?

Taking note of “a new trend emerging in which NCCPs and HCPs are used to supersede Coastal Act habitat compliance,” Douglas last September proposed a paper step to streamline the process and make sure the Commission was not blindsided or cut out.

The Commission was alerted by a plan of the City of Carlsbad, in northern San Diego County, for a municipal golf course extending into the coastal zone. It proposed to compensate for loss of coastal habitat by establishing a “reserve” that would extend outside the coastal zone. The Coastal Act does not permit such a trade-off. Commission staff had learned by reading the Federal Register that Carlsbad had applied for an ITP. The Commission stepped in to review the proposed ITP for consistency.

This was the first time the Commission was challenging an ITP for a habitat conservation plan. It has authority to review federal actions for consistency and routinely gets notice of 16 types of federal licenses and permits that it must certify as consistent.

The Commission may also review other federal permit and license activity that is “reasonably expected to affect the coastal zone.” But that is a cumbersome process. It must notify federal agencies and project applicants, and ask approval from the Office of Coastal Resources Management (OCRM) of the National Oceanic and Atmospheric Administration (NOAA) in the Commerce Department. This the Commission had to do in the Carlsbad case. OCRM agreed.

Knowing that many more HCPs and NCCPs were in the works, Douglas proposed to ask that the ITPs be added to the list of 16 permits it routinely reviews. At least ten states have these permits listed, including Texas and Oregon, and OCRM indicated that the request was reasonable. The Commission invited public comment, anticipating no problems.

To everyone’s surprise, a flood of opposition from development, extraction, and agricultural interests poured in to state and federal authorities, accusing the Commission of a power grab and asking that the OCRM extend the public comment period. On October 11, Secretary Nichols requested a delay, saying that she and Robert Hight, director of DFG, had “been contacted by various members of the public who have expressed great concern.”

Congressmen Rob Packard, Duncan Hunter, Brian Bilbray, and Randy “Duke” Cunningham wrote to NOAA administrator James Baker warning that “the proposed change could be problematic for habitat conservation planning in our state.”

Paper Tigers?

A move that had seemed small and reasonable “took on a life of its own,” as one commissioner put it. Soon the Commission and its allies began to see the stakes as being high. Most of the attention focused on its jurisdiction over activities outside the coastal zone that bear on coastal resources. These would include offshore oil leases outside the three-mile limit, mining leases, toll roads and development in upper watersheds.

The Commission has exercised its jurisdiction over such federal activities numerous times. It did so in the case of the Los Padres Dam on Carmel River, for example, which is 16 miles inland from the coastal zone, because sand flow affects the coast. It recently entered the fray over the Navy’s plan to practice bombing in Fort Hunter Liggett (see Coastal Viewpoint). It was not seeking to expand the authority it already had, yet that was the charge being levied against it.

Before year’s end the Commission learned that its request for the ITP listing had been moved up to the level of the Secretary of Commerce, Norman Y. Mineta, and that it would not be granted unless it came from the State of California rather than just from the Commission. It was to come with a Memorandum of Understanding (MOU) among FWS, DFG, and the Commission on their mutual roles regarding the ITPs. Secretary Nichols undertook to broker this MOU.

The drama turned into a cliffhanger in the waning days of the Clinton Administration. On December 19, a marathon session was held in Nichols’ office. When it ended, late at night, Douglas came away believing that the path had been cleared. But more surprises were in store.

By the time the Commission met in Los Angeles on January 10, ready to make its request to the OCRM, George W. Bush had chosen Mineta as Secretary of Transportation. Secretary Nichols advised the Commission it would be wise to “peremptorily withdraw the letter filed,” rather than have the Commerce Department deny it. “We are in a different situation than when the item was put on the agenda,” she explained.

In the end, after long and emotional discussion, the Commission voted 6–5 to table its request.

In a recent interview, Secretary Nichols said that much had been learned from this experience. She expected the habitat conservation planning process to improve as a result, and expected agencies involved in the process to work together. “The Coastal Commission is the final authority over the coastal zone,” she said. “Commission staff needs to be included early on” in habitat conservation planning “in the coastal zone and beyond the coastal zone to the extent that there is a direct link to the coastal zone.”

In perspective, this was the latest tug-of-war in the ongoing struggle to defend the Coastal Commission, which administers the toughest coastal protection law in the nation, against efforts to weaken its authority. There is enormous citizen support for the coast and direct challenges have often backfired. Bureaucratic tangles are much harder to see through, but may be just as significant.