Watch On The Environment
David W. Claycomb
Copyright 1997 Claycomb
California has a reputation for creating a regulatory nightmare for business owners and project proponents. As a practicing environmental planner, I can attest that the reputation is well-earned. Every project's discretionary review process, no matter how simple or wide-ranging, is extremely complex and burdensome. Is this regulatory maze somehow a desirable situation that, in fact, results in the long-term protection and conservation of our natural resources? Several people I've spoken with hold this concept to be true; i.e., the longer we hold off project proponents and their engineers and contractors with our lengthy, redundant regulatory reviews and lawsuits, the better chance we have of conserving our resources. Are we in fact buying critical time as our precious resources dwindle? Do the "ends justify the means" in this case?
In my opinion, the environmental planning and regulatory processes are not achieving their goals in southern California. Sensitive wildlife habitat is being lost while new regulations are piled onto the process in an attempt to halt or direct the losses. The positions of the development community (including both private, profit-motivated project proponents as well as public and quasi-public infrastructure project proponents) and those who regulate their activities are extremely polarized. In some cases, resource agency staff are seen as the "enemy" by my clients - both private and public, and vice versa. Lawsuits, the threat of lawsuits, disdain and mistrust abound. Meanwhile, our natural resources are being consumed and the process that we've created has increased our cost of living, whether it be for general or special taxes, housing, schools or the water flowing through our taps.
I think that we will come a lot closer to reaching the goal of long-term, effective natural resources conservation if we use our available resources (both people and money) to work together toward common goals as opposed to reaching a middle ground via the current adversarial approach. The money that we are spending to fight each other, to write meaningless reports, to attend endless meetings, and to respond to frivolous lawsuits could be used to purchase valuable open space, clean our air and water and generally improve our quality of life. The concepts of endangered species and sensitive habitat protection and substantial reduction of a project proponent's regulatory burden by overhauling (and even altogether eliminating) certain laws, policies and regulations are not mutually exclusive. I have a few thoughts on how we might improve the current situation.
Eliminate Overlapping Responsibilities
The overlap of responsibilities for each participant in the environmental regulatory process must be eliminated, or at least considerably reduced. This doesn't necessarily mean eliminating employment positions, just more narrowly defining and focusing existing job descriptions and responsibilities. Examples of unnecessary overlap in the San Diego region abound. For example, any project in the jurisdiction of the City of San Diego involving a previously undeveloped parcel of land must be reviewed by a private biological consultant who must prepare a findings report. The biological technical report is subject to review and informal approval at the City staff level by the project's assigned lead planner, an environmental planner, one of several City biologists and other staff members who choose to take an interest in the project. I have had to defend a biological report's conclusions on a single, simple project to all of these participants. The City planners should defer to the objective technical specialists and the resource agency biologists.
Beyond the local jurisdiction's review process, and only related to a project's biological resources issues, a project proponent in southern California must seek and receive approval from a multitude of agencies. Depending upon a project's geographical setting and site's resources, regulatory participants in the biological resources discussions may also include the San Dieguito River Park, California Department of Fish and Game (CDFG), the staff of the regional and state Coastal Commissions and Coastal Conservancy, the U.S. Fish and Wildlife Service (USFWS), U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (ACOE) and the National Marine Fisheries Service (NMFS). I recommend that local, state and federal regulators divide and clearly define, via memoranda of understanding, each others' roles and responsibilities. It is of no benefit, for example, to have more than one agency oversee the protection of a particular sensitive wildlife habitat type. We have to give something up to gain ground on the endless, costly spiral of redundant responsibilities and continually mounting regulations.
Eliminate Overlapping Regulations and Institute Concurrent Processing
In addition to the requirements of the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), substantial overlap in regulations can be seen within local agencies. For example, the City of San Diego has general plan, community plans, specific plans, framework plan, regional park plans, Resource Protection Ordinance (RPO), Hillside Review (HR) ordinance, local coastal programs, interim habitat loss permit and draft Multiple Species Conservation Program (MSCP) regulatory layers to conserve important open space areas. This redundancy is unnecessary. Also, it often seems as though state and federal resources agencies unofficially participate at the local level, knowing that they will get an opportunity to exact mitigation or project design changes later in a project's review process. Project proponents very often have to redesign a project many years into the regulatory process based on an 11th hour request, a changed rule or a newly issued regulation by a federal or state reviewing agency which had numerous opportunities to participate earlier in a project's review process. Within the past several months alone the ACOE's Nationwide Permit Program has been modified substantially and a new local species of relative abundance (according to nearly every practicing field biologist that I've spoken with) has been added to the federal endangered species list under threat of lawsuit by a special interest organization. To indirectly quote a member of the USFWS local staff, it's sometimes easier to "list" a species than it is to fight a lawsuit. Is this sensible environmental planning? The species in question (the San Diego fairy shrimp) and the vernal pool habitat that it occupies are already protected by a variety of regulations. The overlap does nothing to protect the species - it simply protracts the process, in my opinion. I recommend that overlapping policies be searched out and eliminated and that project reviews be conducted concurrently by all reviewers.
The MSCP cited above covers a large portion of San Diego County and is currently about six years and many millions of dollars into its life. The efforts to date have yielded a draft MSCP policies document and maps which identify core biological areas and connecting wildlife corridors. Other maps identify areas to be set aside in perpetuity to protect the habitats of many of the state- and federally listed species in the region. This is a wonderful concept, with participants at the negotiating table that include the federal agencies cited above plus private landowners, agricultural interests and several special interest groups. I have heard and read, however, that several of the direct participants in the development of the MSCP will legally challenge its implementation. In addition, final adoption of the MSCP could be years away. Despite this, all projects currently passing through the City's CEQA and development review processes are judged for conformance to the draft MSCP as well as all of the other regulations cited above. One of the stated goals of the MSCP is to provide an "economic benefit by reducing constraints on future development and decreasing costs of compliance with federal and state laws protecting biological resources." Yet I've heard state and federal agency staff at MSCP meetings publicly state their reluctance to surrender their authority to the local jurisdictions. I doubt that the City's discretionary actions under the MSCP will ever take place absent the written consent of the CDFG and the USFWS. I'm skeptical that this particular goal of the MSCP will ever be realized. If not, the MSCP will simply add another layer to the already cumbersome process.
Restore the Trust
Eliminating the overlapping responsibilities and regulations cited above and ceasing the "win at all costs" actions by parties on both sides will further the cause of effective environmental planning. My experience is, sadly, that the landowners, project proponents and regulators don't trust the consulting biologists or each other. Land owners and project proponents conspire to overturn laws and find loopholes to exploit. Regulatory staff conspire at multiple governmental layers with special interest groups to intentionally impede the progress of perceived undesirable projects. A project's rejection or slow death are often seen as victories by supposedly objective reviewers. Project proponents should not need to spend countless hours and dollars pushing unreasonable and overstated goals, knowing that ultimately compromise may be reached somewhere in the middle. The fight by project proponents to minimize any and all mitigation measures to offset project impacts would not be nearly as intense as it is today if the rules of the game were clear and effectively administered. Trust and cooperation must be re-introduced to the environmental planning process in the San Diego region. If this is achieved, we'll be in a true "win-win" situation.
David W. Claycomb, AICP, is President of HELIX Environmental Planning, Inc He has more than 18 years experience in the environmental planning field, which has been primarily in the private sector. Prior to forming HELIX in 1991, he was a Principal/Vice President of Keller Environmental Associates and a Group Manager/Senior Project Manager with WESTEC Services/ERC Environmental based in San Diego. He served as Chairman of the City of Arcata Planning Commission while attending graduate school at Humboldt State University, and has worked internationally in Mexico and Thailand.