Can we conserve California's threatened fisheries through natural community conservation planning?

• Jurisdiction: United States
• Date: 22 September 1997
• Author: Gaffin, John M.

1. INTRODUCTION

   1. Recent History of the Coho Crisis

      Before the coho salmon was listed under the Endangered Species Act (ESA), the Resources Agency of California (Resources Agency) convened a policy committee for the development of the "Coastal Salmon Initiative" to protect the fish with voluntary measures.(3) From the outset, the Resources Agency clearly intended for the Natural Community Conservation Planning (NCCP) process to serve as a "model" for the initiative.(4) The policy committee was composed of state, federal, local, and tribal government officials as well as environmental and economic stakeholders.(5) Unfortunately, after nearly a year of monthly sessions, the environmental habitat restoration and fishing interests felt compelled to leave the process, unhappy with the dishonest and partial manner with which the Resources Agency facilitated the Process. Those who left the process found the Resources Agency unwilling to hold affected landowners accountable for compliance with reasonable measures to protect coho.(6) Similarly, the representative landowners indicated no willingness to commit to voluntary protection measures proposed by the committee. Those organizations committed to the recovery of the fisheries concluded that in the absence of a listing of the coho under the ESA, attempts to negotiate in good faith were both a waste of time and potentially counterproductive. This prelisting effort to protect coho fell apart in February, 1996.(7)

   2. What is Natural Community Conservation Planning?

      In 1991, the California legislature approved the Natural Community Conservation Planning Act.(8) The stated intention of the Act is to provide a means for voluntary, cooperative conservation planning that provides for both protection of wildlife and allowances of appropriate growth and development.(9) The Act gives the Resources Agency the authority to prepare guidelines for natural community conservation plan development, and to approve plans if they meet the California Department of Fish and Game (CDF&G) standards for natural community conservation.(10) The only substantive standard with which plans developed pursuant to NCCP must comply is to "provide comprehensive management and conservation of multiple wildlife species," without any further definition of terms.(11)

      However, the two elements of plan development and plan approval are not guided by any mandatory guidelines or standards. The CDF&& may "prepare nonregulatory guidelines"(12) for plan development, followed by a list of possible guidelines.(13) However, CDF&G has not issued any guidelines for general NCCP development; the only development guidelines that exist are specific to the Southern California NCCP.(14) Similarly, standards for approval of plans are to be established by the CDF&G,(15) but this task has never been addressed either. The extraordinary lack of specificity in the authorizing statute, combined with CDF&G's failure to issue implementing regulations for development and approval of NCCP plans, make it difficult to understand how the Resources Agency can so persistently present the program as a meaningful substitute for listing species as endangered or threatened under the ESA.

      The NCCP process has been fully implemented only once. In 1991, it was initiated as a purely voluntary program with the goal of averting a listing of the California gnatcatcher under the California Endangered Species Act.(16) The results were disappointing. In 1993, the California gnatcatcher was listed federally on the southern California coast(17) Secretary of the Interior, Bruce Babbitt, linked the federal listing with the implementation of the faltering NCCP by formally adopting the Orange County NCCP under section 4(d) of the ESA. Babbitt stated, "this Orange County plan will serve as a model for the nation."(18) Doug Wheeler, Secretary of the California State Resources Agency, has since waged a steady campaign touting his perception of the virtues of NCCP as a substitute for federal listings, steadfastly ignoring the failure of the program to make any gains until the federal listing had occurred.(19)

2. Will a Northern California NCCP Process Provide for the Protection and Recovery of California Coho Population?

   With coho salmon now listed as threatened in all of its California range, can Natural Community Conservation Planning (NCCP) be expected to provide the basis for recovery of coho and the fisheries in general? Given the considerable ambiguity of the NCCP Act, it is difficult to speculate on what the exact effects of implementing a NCCP program on the north coast of California will be. The following discussion considers NCCP in the context of the southern California experience and the draft Memorandum of Understanding (MOW) between the Resources Agency and the National Marine Fisheries Service (NMFS),(20) which provides a very general idea of how a northern California coho NCCP might look An analysis of the NCCP process reveals several serious shortcomings that must be critically addressed if NCCP planning is to play a positive role in protecting wildlife and achieving the goals of the Endangered Species Act (ESA). These shortcomings and potential problems with the present NCCP process are discussed below.

   1. Trust

      Unfortunately, many natural resource advocates in northern California hold the Resources Agency of California (Resources Agency) in low esteem. Advocates feel that for many years, the Resources Agency has persistently failed to meet its responsibility to protect the natural resources of the state.(21) Naturally spawning coho salmon in California have declined from annual runs of 200,000 to 500,000 in the 1940's to approximately 30,000 today.(22) Powerful economic interests have consistently been provided the benefit of agency discretion, while the public trust has been ignored. For example, the California Fish and Game Code gives the Resources Agency authority that could have been used to prevent the precipitous decline of coho fisheries.(23) The politically appointed Fish and Game Commission, in conjunction with the Department of Fish and Game (CDF&G), has the authority to list endangered species under the California Endangered Species Act.(24) However, not until late 1996 was a small portion of the coho's range listed.(25) Fourteen years ago, the Board of Forestry committed itself to a review of the Forest Practice Rules for their effectiveness in protecting the "beneficial uses" of watercourses.(26) Today, that review is stalled, with just a tentative pilot program to monitor effects of timber harvest on fisheries. By default, the judicial process has provided the only real opportunity to persuade the Resources Agency and its subordinate departments to implement and enforce laws protecting the natural resources of California Nonetheless, the judicial process is only a partial remedy in the face of agency discretion.(27)

      During the recent efforts to develop the Coastal Salmon Initiative, an incident occurred of the sort that destroys the credibility...