California Issues Strong Coastal Plan

The California legislature is currently debating one of the most important issues it has ever confronted: the proposed California Coastal Plan.¹ The outcome of this legislative fight may determine not only the future of the 1100-mile California cast, but also the national destiny of comprehehensive resource management and innovative developmental controls.

Within the last 30 years California's population has trebled to 20 million persons, 85 percent of whom live less than 30 miles from the coast; the rate of growth within five miles of the coast is twice that in the rest of the state. This population surge, coupled with the dispersion of planning and zoning powers among 200 coastal jurisdictions, has resulted in an unrestrained, haphazard pattern of development that is a nightmare for those seeking to preserve the coast's environment. To remedy this situation the California Coastal Plan forcefully proposes the objectives of quality development coupled with preservation, enhancement, and restoration of natural and man-made coastal resources. In addition, the Plan would grant priority to public and coastal-dependent over private and non-coastal dependent uses, concentrate growth near already developed areas, and maximize access to the coast.

Statutory Requirements

Development of the Coastal Plan was mandated by the California Coastal Conservation Act of 1972 (the Act), a citizen initiative popularly known as Proposition 20.² By avoiding the usual legislative process and the compromises it inevitably imposes, the Act was able to include strong declarations that:

the California coastal zone is a distinct and valuable natural resource belonging to all the people and existing as a delicately balanced ecosystem; that, … in order to promote the public safety, health, and welfare, … if is necessary to preserve the ecological balance of the coastal zone and prevent its further deterioration and destruction; that it is the policy of the state to preserve, protect, and, where possible, to restore the resources of the coastal zone….³

To implement this policy, the Act established the California Coastal Zone Conservation Commission (the Commission) and six regional commissions, composed of both private citizens and public officials, with directions to prepare, with maximum public participation, a comprehensive plan for the long-range conservation and management of the coastal zone. Funding came in large part from the federal government under the Coastal Zone Management Act of 1972.⁴

The Act defines the coastal zone as the land and water area from Oregon to Mexico, extending seaward to the outer limit of state jurisdiction and extending inland to the highest elevation of the nearest coastal mountain range, except for Los Angeles, Orange, and San Diego counties where five miles inland from the mean high tide line is used if shorter. The Act also specifies that the Plan must be consistent with certain objectives, including maintenance, restoration, and enhancement of the overall quality of the coast, orderly utilization and preservation of all living and nonliving coastal resources, and avoidance of irreversible and irretrievable commitments of such resources. The Plan was required to contain sections on specific topics including transportation, energy, and recretation, and to present proposals for its own implementation. To avoid irreparable harm while the plan was being prepared, all development proposals after February 1, 1973, less than [6 ELR 10084] 1000 yards inland from the shoreline have been subject to review by the regional commissions, which have authority to deny projects with substantial adverse environmental effecits.⁵

Multi-faceted Planning for Controlled Growth

The proposed Plan ranks among the most ambitious and comprehensive land use plans yet developed in the United States and lives upon to its mandate to conserve as well as manage coastal resources. At the heart of the Plan are its extensive findings and policy recommendations covering the areas of marine environment, land environment, appearance and design, development, energy, transportation, public access to the coast, recreation, scientific and educational resources, restoration, public acquisition, and further planning. The Plan attempts a unified management approach by frequent cross-references among these areas and by requiring that any development be consistent with all policies contained in the Plan.

Each of the planning elements is introduced by a brief description of the resource and its economic as well as environmental importance. The element's current status is reported with special attention given to adverse impacts, usually from some form of human activity. Beneficial impacts are also noted. Mention is made of current management or regulation measures with a brief evaluation of their effectiveness in light of current resource needs. Finally, alternatives possibly having less adverse environmental effects are noted.

After listing these factual considerations, the Plan recommends specific policies for each planning element, stressing two primary objectives — protection of natural resources and controlled, quality development. Orderly growth is allowed, subject to the overriding concern for preservation of coastal resources, whether living or non-living, natural or man-made; permitted development would have to be accompanied by mitigation of adverse effects to the greatest extent possible, regardless of economic factors. The Plan also proposes to expand existing agency authority to deny development inconsistent with comprehensive resource management programs, and contains detailed guidelines specifying priorities among competing use of the coastal zone. New development would be allowed only upon a showing that present facilities are being used most efficiently and that no environmentally less damaging alternatives exist.

Marine Environment

Description of the Plan's marine environment element provides a useful illustration of the comprehensive approach used in the Plan. To offset a recent substantial decline in marine resource productivity, the Plan recommends an ocean resources management program to protect against overharvesting and a water quality resource management program to deal with the impact of water pollution on marine resources. Special treatment would be required for heated and cooled discharges, runoffs, and oil and toxic spills, and discharges into bays and estuaries would be phased out. Stict liability for polluters would be instituted and a $100 million oil spill liability fund would be established, financed by a two cent per barrel tax on oil entering California.

Dredging and filling of estuaries and wetlands, the majority of which have already either been destroyed or severely altered by such activities, would be drastically limited. Where dredging and filling were allowed, replacement of the resource would be required by creation of an area nearby of similar or greater biologic productivity, or payment of an in-lieu fee to an appropriate public agency to finance purchase and protection of similar resources elsewhere. The latter device illustrates the Plan's forceful protection measures; the in-lieu fee would have to be sufficient to purchase an area of equivalent productive value and agency receiving the money would have to purchase the site and begin restoration before the dredging or filling could proceed. Finally, the Plan would limit construction of shoreline structures to insure maintenance of adequate beach area.

Land Environment and Development

The coastal land section of the Plan similarly ties development to assessment and protection of present water quality and maximum mitigation of any adverse effects of growth. Recommendations include drafting of comprehensive watershed management programs stressing conservation, correlation of local water supplies with such a program, special protection for anadromous fish streams, control of soil erosion, maintenance and restoration of coastal air quality, prohibition of mining in sensitive or highly scenic areas, and buffer zones with later restoration where mining is allowed.

The Plan's proposals for natural habitat protection illustrate its attempt to insure resource protection through land use controls. While relying on a regulatory mechanism similar to traditional use zoning, the guidelines are based on the novel but sensible assumption that environmental degradation is inimical to the public health, safety, and welfare and thus forms a valid criterion for use zoning. Areas identified as significant natural areas would be preserved by public acquisition or conservation easements, while ecologically fragile areas, such as tidepools, would be protected by buffer zones and could be used only for activities directly dependent on them, and then only if no significant environmental damage will occur. Development in adjacent areas would be carefully controlled so as to provide a natural buffer zone.

The Plan would strongly discourage subdivision of prime agricultural land through stringent land use regulations and tax assessment based on agricultural value. Use of forest resources for timber would be allowed to the extent long-term productivity and environmental quality of the surrounding habitat is protected. In order to encourage sustained yield, a timber harvest tax is recommended to replace the present tax on standing timber value.⁶

[6 ELR 10085]

The Plan's section on development attempts to establish a comprehensive land use policy by specifying and enforcing priorities among competing uses New development would be channeled where possible into urbanized areas to conserve open spaces, and regulated to avoid overloading existing public facilities and roads. Expansion of such facilities would be allowed only to the extent that the development it would eventually attract will be consistent with other coastal plan policies.

The Plan advocates restoration of degraded coastal resources wherever possible by giving priority to development that includes substantial restoration of significant coastal resources and by requiring projects that degrade important natural coastal resources to restore the area or pay for restoration of an equivalent area. In rural areas, an assessment would be made to determine whether agriculture or preservation as open space, such as in highly scenic areas, would be the best use. The next priority would be recreational use, with residential building allowed only if better uses are not feasible. One possible loophole, however, is Policy 62 of the Plan, which would impose a balancing test of economic benefit versus environmental disruption in determining whether to permit coastal-dependent development.

Aesthetic Environment

The Plan attempts to preserve and restore the California coast's outstanding visual resources by requiring a design review of all proposed development projects. Disruption of the ocean view would not be allowed; major developments, such as shopping centers, would have to be built back from the shoreline. New billboards would be banned and removal of existing ones required within ten years.

Energy and Transportation

The energy section of the Plan advocates substantial reduction of energy consumption through conservation and proposes standards to aid the State Energy Commission in developing its statewide energy conservation program. Because most of California's fossil fuel and nuclear power plants are located in the coastal zone, the Plan gives special attention to plan siting and design. It recommends strongly that the State Energy Commission's jurisdiction be extended to include statewide authority over siting and design for power plants and all other major energy facilities, and that the Commission draft a coordinated list of approved inland and coastal sites for all types of energy facilities. The Plan further proposes criteria for refineries, liquified natural gas facilities, and the use of tankers, but its proposal to prohibit disruptive offshore drilling may well be a futile attempt to override exclusive federal control.⁷

Despite these strengths, the Plan's transportation policies seem destined to continue the disappointing pattern of California's love affair with the automobile. The proposal for development of mass transit in the coastal zone evokes skepticism as does the procedure whereby the remaining capacity of existing coastal roads would be allocated according to use. Rather than directly face the automobile use issue, the Plan relies primarily on developmental controls eliminating the need for new roads; when impacts from a new road would be inconsistent with the plan, such as opening up a rural area to development, the road would not be permitted.

Beach Access and Recreation

The Plan recommends strong enforcement of the public right to coastal access guaranteed in the California Constitution.⁸ Where necessary to prevent deterioration of natural resources, though, access could be restricted. New coastal developments would be required to dedicate permanent access routes or pay for acquisition of public access elsewhere. Recreational uses of the coast, while generally encouraged, are required to be compatible with protection of coastal resources.

Implementation

Primary reliance for development of plans for implementing the Coastal Plan is placed on local governments, which would control development through a permit process similar to the current interim procedure. Such bodies would have three years to bring their general plans,⁹ zoning regulations, and ordinances into conformity with the Coastal Plan, at least for areas within their jurisdiction identified as Coastal Resource Management Areas (CRMA's). CRMA's are defined as those areas containing any significant coastal resources, such as beaches or potential recreation areas near urban centers, and areas where development could directly or cumulatively affect access to coastal recreation areas.

The Plan deals with the problem of splintered jurisdiction by requiring those agencies involved, with the aid of the coastal agency or the Commission, to jointly prepare subregional plans where the cumulative impact of development over time has the potential for adversely affecting coastal resources or access. Such plans would analyze current patterns of development and propose alternatives consistent with the Plan's policies.

The interim permit program would continue except that the Plan, rather than the Act, would become the standard for permit approval. Once the local plan had been certified by the state and regional commissions, the local government would be responsible for controlling development within its jurisdiction subject to limited appeal of local decisions to the state agency. The Plan envisages the creation of a state coastal agency to assist local governments and issue permits for public [6 ELR 10086] works and major watershed projects. This body would ideally then grow into a comprehensive land use planning and resource management agency.

Legislative Proposals

Because the Act specifies that the coastal commissions will expire on December 31, 1976, substantial pressure has been generated for legislation this year adopting the Coastal Plan. In opposition, proposals have also been advanced to permanently prohibit the Plan's implementation.¹⁰ Of the several implementing bills currently pending before the California legislature, the most important is SB 1579, the proposed California Coastal Conservation Act of 1976.¹¹ This bill does not adopt the entire Coastal Plan, but it does include those parts generally felt necessary for coastal preservation, along with a declaration that all public agencies, federal as well as state "shall" consider and be guided by the Plan's provisions. Sponsors feel that these measures will insure substantial compliance with the Plan yet avoid greater managerial complexity and political opposition that might occur if the Plan were adopted verbatim. The bill provides for submission of local government coastal plans to regional commissions by January 1, 1979, and certification by 1981. One significant difference between the Plan and SB 1579 is that the latter would require a permit program either within the current 1000 yard permit area or the CRMA, whichever is smaller.

Conclusions

The California Coastal Plan consistently stresses the twin objectives of protection of natural resources and quality development. While other resource management programs have reflected both these objectives inter alia, the Plan is unique in assigning maximum priority to these particular values.

In addition, the Plan has three notable features as compared to most other environmental statutes. First, its approach is comprehensive; appropriate agencies would assess the carrying capacity of all land within the coastal zone in establishing CRMA's and would focus on protecting a wide range of resources, rather than just one. Secondly, a great degree of protection is provided for coastal resources, since the State of California would actually acquire the threatened environmentally-sensitive areas wherever possible, and even where it did not, would not allow any significant adverse environmental impact on the protected resources.

Thirdly, the Plan makes it a duty of state and local governments to achieve its objectives, rather than just stating broad policies or procedural requirements as most present statutes do. Local governments are required to change their general plans and ordinances to conform with the Coastal Plan's guidelines on resource management and, under the permit program, to deny most projects adversely affecting a CRMA. The greatest flaw in the Plan's resource management approach may be its failure to extend this protection to resources not within CRMA's, since such development would not require a permit.

The Plan's second primary objective is balanced, quality growth within the coastal zone. While most attempts to plan and control growth still evoke strong oppositon, the Ninth Circuit's recent upholding of the Petaluma Plan¹² portends an increasingly favorable reception to comprehensive planning.

The Coastal Plan not only embraces the goal of controlled growth but specifies stringent and innovative guidelines to insure quality in the growth that is allowed. Novel requirements to achieve quality development include visual harmonization of development with the surrounding environment, establishment of priorities among competing coastal zone uses, and maximum possible mitigation of adverse environmental effects, a standard that significantly does not include economic factors in determining adequate compliance.

Such stringent measures have not been met with silence. Opponents are already charging that the Plan advocates economic stangation, creates one more unnecessary state bureaucracy, and unilaterly takes private property without compensation. In response, supporters of the Plan argue that the restrictions are merely traditional zoning regulations to restrict property use not in the public interest and that what might be taken is not property but the developer's constitutionally unprotected expectation of speculative profit.

The California Coastal Plan represents a vital step toward recognition that rational allocation of scarce and non-renewable resources, such as California's coast, can take place only through comprehensive controls. Though most of the battle remains to be fought over both the desirability of adopting such controls and their exact content, publication of the Plan provides a strong impetus for the eventual adoption of nationwide comprehensive land use and resource management pregrams. It is to be hoped that this momentum will not become lost in the legislative corridors of Sacramento.

1. California Coastal Zone Conservation Commission, California Coastal Plan (Dec. 1975) [hereinafter cited as Plan]. Copies of the Plan may be obtained from: Documents and Publications Branch, P.O. Box 20191, Sacramento, CA 95820. Price: $4.50.

2. Cal. Pub. Res. Code §§ 27001-650 (West Supp. 1975). The California Constitution reserves to the people of the state the power to make laws. Calif. Const., art. IV, §§ 1, 22. An initiative proposal, approved by a majority of voters, becomes law the day following the election. Id. § 24 (P1). For background on Proposition 20, see Commont, Some Recent Developments in Coastal Protection, 4 ELR 10138 (Sept. 1974): Adams, Proposition 20 — Citizens' Campaign, 24 Syracuse L. Rev. 1019 (1973).

3. Cal Pub. Res. Code § 27001 (West Supp. 1975).

4. 16 U.S.C. §§ 1451 et seq., ELR 41701. The Act provides grants for developing and administering state coastal zone management programs.

5. The area under jurisdication of the San Francisco Bay Conservation and Development Commission was exempted from the permit requirement. Cal. Pub. Res. Code § 27103. The constitutionality of the Act, including the commissions' permit authority over proposed development, has been upheld. CEEED v. Calif, Coastal Zone Conservation Comm., 118 Cal. Rptr. 315 (Ct. App. 1974).

6. Id. Assemblyman Charles Warren has introduced such a bill (AB 1258) which has passed the Assembly and is currently pending before the Senate Committee on Revenue and Tax.

7. The federal government controls offshore development of outercontinental shelf (OCS) lands more than three miles from the coast, Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq., and may well decide that restrictions imposed by coastal policies are against the national interest and refuse to abide by them. In a suit brought by the Southern California Association of Governments, challenging the Department of Interior's accelerated oil and gas leasing program of the OCS lands off the southern California coast, plaintiff's motion for a preliminary injunction was denied on Dec. 5, 1975, for failure to show a sufficient likelihood of success on the merits of their NEPA challenge. Southern Calif. Ass'n of Gov'ts v. Kleppe, 6 ELR 20115 (D.D.C. Dec. 5, 1975).

8. Calif. Const. art. XV, § 2. See Comment, Public Rights and the Nation's Shoreline, 2 ELR 10184 (Sept. 1972).

9. Current state planning law requires that local governments prepare a general plan for use of land within their jurisdiction and that zoning ordinances conform to that plan. Cal. Gov't Code §§ 64300-360 (West 1966); Id. § 65860 (West Supp. 1974).

10. L.A. Times, Dec. 16, 1975, § 2 at 1, col. 8.

11. Introduced on Feb. 10, 1976 by Sen. Anthony Beilenson. The bill is currently pending before the Sen. Natural Resources Comm.

12. Construction Ind. Ass'n. v. Petaluma, 552 F.2d 897, 5 ELR 20519, cert. denied, 44 U.S.L.W. 3467 (U.S. Feb. 23, 1976).