Background CASE STUDY #7 THE COACHELLA VALLEY HABITAT CONSERVATION PLAN 1 Coachella Valley encompasses more than 300 square miles of desert in one of the fastest growing regions of southern California. Though popularly known as home of celebrities, the valley also provides critical habitat for the Coachella Valley fringe-toed lizard, (Uma inornata), a federally endangered species. The dispute began in 1980 when the lizard was added to the federal endangered species list. At that time, the U.S. Fish and Wildlife Service (USFWS) was considering the designation of 170 square miles of desert as critical habitat for the lizard. USFWS scaled down the critical habitat designation to 20 miles after Congress amended the Endangered Species Act in 1982. While a seemingly modest proposal, it was restrictive enough to rouse considerable local opposition. Environmental groups in the valley, namely the Coachella Ecological Reserve Foundation, led by Dr. Alan Muth, and the California Nature Conservancy, had been working to preserve a portion of the desert ecosystem prior to the lizard's listing. However, they faced tremendous local political opposition. It had been a lonely and decidedly uphill battle until 1982: the year Congress amended the Endangered Species Act to allow incidental taking permits and the Sunrise Development Company decided to build the Palm Valley Country Club on more than 400 acres of lizard habitat. The Parties 1. Coachella Valley Ecological Reserve Foundation 2. The California Nature Conservancy 3. Sunrise Development Company 4. Coachella Valley Water District 5. U.S. Fish and Wildlife Service 6. Bureau of Land Management 7. California Department of Fish and Game 8. Local governments, including the cities of Palm Desert, Palm Springs, and Rancho Mirage, and Riverside County. 9. Riverside County Planning Department 10. Agua Calient Indian Tribe 1 This case study was developed by Harlin Savage and Beth Delson. Source: Steven L. Yaffee and Julia M. Wondolleck, Negotiating Survival: An Assessment of the Potential Use of Alternative Dispute Resolution Techniques for Resolving Conflicts Between Endangered Species and Development (Ann Arbor, MI: School of Natural Resources and Environment, The University of Michigan, September 1994), a report prepared for the Administrative Conference of the United States.
Coachella Valley HCP Case #7-2 The Process 2 The first step was to involve as many parties with a stake in the outcome as possible. To that end, Muth and Paul Seltzer, the attorney representing the Sunrise Development Corporation, actively recruited participants. After the group was assembled, the parties designated a smaller steering committee nicknamed "the lizard club" to hammer out the details of a Habitat Conservation Plan. The steering committee operated by consensus, with Seltzer acting as mediator by default. As often happens, the steering committee hired an outside consultant, Thomas Reid Associates, the same consultant that worked on the San Bruno HCP, to do the biological studies to determine the size of the lizard population and its habitat requirements. Despite expenditure of $100,000, the study failed to answer critical questions about "population dynamics, ecological relationships and limiting factors." Apparently, the committee was working under a deadline that precluded field work. Reid did, however, survey lizard experts to find out what measures they thought were necessary to ensure the long-term survival of the species. While the consultant may have provided the best information possible given the financial and time constraints, the studies were later criticized as inadequate for planning a long-term HCP. Two specific points about the process are worth noting. First, the parties had to agree on a starting point for negotiations. As Muth remembers, he and the biologists for the developer spent a fair amount of time arguing about which parts of the valley were occupied lizard habitat. Finally, everyone agreed to consider all undeveloped land that was part of the lizard's historical range. Second, the USFWS, the Coachella Valley Ecological Reserve Foundation and the other parties agreed to allow incidental takings while the agreement was being negotiated provided developers paid a fee and did not develop in areas zoned for interim protection. Critical habitat designation was used to identify areas that were likely to form the main preserves and needed interim protection. Muth and others thought this was necessary to bring the developers to the bargaining table. 3 The Agreement An HCP agreement was reached in 1985. It set aside roughly 17,000 acres in three permanent reserves. These protected lands contain 7,838 acres of habitat potentially occupiable by lizards, roughly ten percent of what then existed. Additional habitat was protected through informal agreements with the Bureau of Land Management and Southern California Edison Power Company to manage adjacent lands so as not to harm the lizard. The HCP also suggested but does not require monitoring and evaluation of lizard populations. The 2 O'Connell, Mike. Coachella Valley Habitat Conservation Plan, draft report. World Wildlife Fund, Washington, D.C., 1991. 3 Telephone interview with Dr. Alan Muth, director of the University of California's desert canyon research center and former chair of the Coachella Valley Ecological Reserve Foundation, CA. April 1991. And O'Connell, draft report.
Coachella Valley HCP Case #7-3 USFWS is responsible for assessing the effectiveness of the program based on how much money is collected for land acquisition and how well the preserves protect the lizard. The USFWS may amend the plan or revoke permits if necessary. Funds for land acquisition and maintenance and implementation of the HCP come from several sources, both public and private. The total cost of land acquisition in 1985 dollars was $20 million, most of which was provided by the California Nature Conservancy ($2 million), the federal government ($10 million) and the State of California ($1 million). Long-term funding comes mainly from fees paid by developers. The steering committee agreed to impose a fee of $600 per acre of development. After $7 million has been collected, the per acre development fee drops to $100. In the mid-1980s, land in Coachella Valley was selling for ten times that amount or somewhere between $5,000 and $6,000 per acre. Real estate is even more expensive now. Muth pushed for acre for acre mitigation but did not get it. What the fee amounts to is about two-tenths of an acre preserved for every acre developed. Today, one of the main concerns is that the development fee is not inflationary. The California Nature Conservancy coordinates land acquisition and most of the monitoring and lizard research. The USFWS Regional Office in Sacramento is supposed to keep tabs on management and evaluate research results. The HCP does not establish a technical advisory or oversight research committee that would provide outside review of HCP implementation as was done in the San Bruno case. The HCP also established a four-tiered process for changing the plan. Amendments not changing areas of incidental take require approval from the USFWS and the California Department of Fish and Game. Amendments not changing areas of incidental take more than 10 percent must be approved by the USFWS and the local jurisdiction. Amendments affecting the overall HCP program must gain the approval of all the parties that signed the agreement. And amendments involving flood control facilities must be approved by the USFWS. Implementation As for implementation, enforcement has not been a problem. Also, restoration and enhancement of lizard habitat seems to have been a success. However, the lizard is still on shaky ground. Monitoring shows that biological assumptions made about the lizards were incorrect. For example, researchers have discovered that lizard populations fluctuate dramatically. No one has figured out why this happens or how these abrupt population swings affect the lizard's habitat needs. Funding has been a problem. The pot of money collected from development fees has not filled as quickly as expected. Again, no one seems to know why this has happened though
Coachella Valley HCP Case #7-4 some people think that local governments may be letting developers off the hook. 4 Local jurisdictions are responsible for imposing fees and are allowed some discretion. Whether a fee is collected and how it is collected may depend on where the land is located and the type of use proposed. 5 Another potential threat to the HCP and the lizard has come from the politically powerful Coachella Valley Water District that proposed a flood control plan that would inundate a significant amount of protected lizard habitat. 6 Muth said the parties talked about the flood control issue during the negotiations but kept pushing it aside to be dealt with later. Today, Muth believes that the flood control issue will most likely not threaten the lizard in the near term since any plans would need to comply with the HCP. 7 Effect On The Endangered Species Two of the lizard populations appear to be stable, according to Muth's field research. One population, however, has declined precipitously -- more than 90 percent in five years. Whether the abrupt decline is due to California's drought, natural population cycles or other reasons is unknown. 8 Parties Attitudes Toward The Agreement Dr. Muth believes that the fee mechanism should be changed and that more habitat protection might be necessary, but he believes that "ten years ago...we did the best we could with the information available (and that) opening up the process for amendments is like opening a can of worms for both strengthening and weakening amendments." 9 Given the intense development pressures and local political opposition facing environmentalists, preserving even a small slice of the desert ecosystem was a victory, though whether it was enough to protect the lizard is unclear. According to Muth "the process worked here. We did the best we could using the best information at the time. Now we have to wait and see what happens." Indeed, environmentalists may have been more concerned about protecting part of the desert ecosystem than ensuring the long-term survival of the lizard. The plan has been criticized for not protecting enough lizard habitat. Muth does not think the criticism can be justified. "If you examine what was left (undeveloped) in the valley that could potentially serve as good lizard habitat," Muth argues, "we got almost everything protected in the HCP. Admittedly, that was 4 Telephone interview with Dr. Alan Muth, director of the University of California's desert canyon research center and former chair of the Coachella Valley Ecological Reserve Foundation, CA. April 1991. And O'Connell, draft report. 5 Telephone interview with Dr. Muth. 6 Telephone interview with Dr. Muth. 7 Telephone interview with Dr. Alan Muth., June 1993. 8 Telephone interview with Dr. Muth. 9 Telephone interview with Dr. Muth, June, 1993
Coachella Valley HCP Case #7-5 small percentage of the lizard's historical range, but we had to have lands that could be maintained ecologically as good habitat over the long haul." Dr. Muth said that the Coachella Valley Ecological Reserve Foundation has since "disincorporated" since they felt as though they had "accomplished their goals." 10 If an amendment were proposed, however, Dr. Muth said he would push for enlargement of the western boundary to include more sand source in Indio Hills, in Mission Creek drainage and in Willowhole preserve. Cameron Burrows of The Nature Conservancy believes that "the HCP is definitely the right way to go in terms of solving endangered species conflicts between development and protection." Burrows does see some problems, however, with the Coachella Valley HCP. First, he believes the funding structure is inadequate in that it is not tied to inflation. Second, Burrows believes that it is necessary to conduct research to collect the best available data and to update the HCP accordingly. He believes that the USFWS is not paying enough "follow-up attention to ensure that it works." Burrows believes that the lack of follow-up is due to a failure to account for an appropriate follow-up mechanism in the original design of the HCP. The management committee, Burrows feels, is staffed with professionals with "considerable other job duties" and hence has not been able to conduct sufficient follow-up. Art Davenport, biologist with the USFWS, also thinks the fee collection mechanism needs updating. Davenport said part of the problem is that each municipality has a different mechanism for collecting the fees. He feels that since "turnover is so high in planning agencies, it is dangerous" since many planners that were not involved in the initial HCP process are now responsible for implementation. He says that counties have also not monitored the HCP closely. The management team, Davenport reports, is not an oversight committee and it can only respond to projects, not take a proactive planning role. Davenport would also like to see a multi-species conservation plan developed. He feels that counties need motivation to do this and he regrets that further endangered species listing seems to be the primary motivation. Lessons Whether this is a success story or an abysmal failure depends on one's perceptions. One might say that 5-10 percent of lizard habitat was spared from destruction. Conversely, one could argue that developers were given license to develop most of the valley. Dr. Timothy Beatley, a professor at the University of Virginia, has faulted the plan and the process itself. "There was never a fundamental reassessment of land use planning in the valley," Beatley comments. He also does not think the agreement upholds the spirit of the law, or for that matter, the letter of the law, which states Sec. 10 (2) (B) (iv) that the "taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild (emphasis added)" 10 Telephone interview with Dr. Alan Muth., June 1993.
Coachella Valley HCP Case #7-6 Dr. Muth said that the mitigation fee might be "reason enough" for proposing an amendment. He stated that "all knew it was a mistake" to have a long-term fee collection device with no inflation but that it was partially done to "diffuse the situation with the developer." He believes, however, that "no future HCP plan should ever do that again." Art Davenport also believes that the fee mechanism should be attached to inflation. Davenport is in the process of completing a comprehensive report detailing progress and areas of concern in the Coachella HCP. This report is not yet available while Davenport is awaiting comments from USFWS "higher-ups." Cameron Barrows, of the Nature Conservancy, is waiting the release of the document given that TNC has requested such an evaluation for several years now. Dr. Muth summarizes his view of the Coachella Valley HCP by saying that "no plan is perfect. The HCP process is an evolving thing. Given that, it's worked well. Overall, we need to look at multi-species planning and take a proactive view. I hope that is the direction the reauthorization of the Endangered Species Act will take."