Improving Emerging Regulatory Experiments in Permit Process Coordination for Endangered Species and Aquatic Resources in California

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. Emerging Regulatory Experiments in Permit Process Coordination for Endangered Species and Aquatic Resources in California by Alejandro E. Camacho, Elizabeth M. Taylor, Melissa L. Kelly, and Stephanie L. Talavera Summary Authors’ Note: Alejandro E. Camacho is Professor of Law and Director of the Center for Land, Environment, and Natural Resources (CLEANR), at the University of California, Irvine School of Law. Elizabeth M. Taylor is a Staff Attorney at CLEANR. Melissa L. Kelly is a Fellow at Los Angeles Waterkeeper. Stephanie L. Talavera is a Fellow at CLEANR. Many practitioners and scholars view enhanced permit coordination as beneficial due to purported efficiency gains and potentially better conservation outcomes, but scholarship on interagency coordination is still limited. The authors conducted extensive interviews and dia- logue sessions to evaluate a range of efforts to coordi- nate proposed California Habitat Conservation Plans/ Natural Community Conservation Plans with fresh- water aquatic resource permits under federal and state laws. In this Article, the authors share their findings, which revealed both benefits and challenges, and make policy recommendations for going forward. P ractitioners involved in developing several proposed California Habitat Conservation Plans (HCPs)/ Natural Community Conservation Plans (NCCPs) under the federal Endangered Species Act (ESA) 1 and Cali- fornia’s NCCP Act 2 are currently undertaking a range of efforts to coordinate those endangered species permitting efforts with freshwater aquatic resource permits under the federal Clean Water Act (CWA) 3 §§404 and 401 and similar state laws. Many practitioners and scholars view enhanced permit coordination as beneficial due to purported effi- ciency gains and potentially better conservation outcomes, 4 although scholarship on interagency permit coordination is still relatively limited. 5 These emerging regulatory experi- ments provide an opportunity to explore the extent of such benefits, as well as some of the costs and challenges. Preliminary research, including interviews 6 and dia- logue sessions, 7 indicates that most respondents strongly 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18. Natural Community Conservation Plan (NCCP) Act, Cal. Fish & Game Code §§2800-2835. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607. See generally Peter A. Buchsbaum, Permit Coordination Study by the Lin- coln Institute of Land Policy, 36 Urb. Law. 191 passim (2004) (suggesting that permit coordination in the HCP context has promise as a way of encouraging and guiding private development while protecting environ- mental values). See id. at 192 (noting how little attention has been given to intergovern- mental coordination of land use controls, such as permitting coordination); see also Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 64 Duke L.J. 133, 150-55, 173-76 (2014) (discussing the lack of scholarship specifically fo- cused on permit coordination and design). The University of California Irvine School of Law Center for Land, En- vironment, and Natural Resources (CLEANR) conducted interviews and preliminary research to survey the current permit coordination efforts among California HCP/NCCPs. CLEANR conducted interviews with the following: Katie Barrows, Coachella Valley Association of Governments; Jim Bartel, U.S. Fish & Wildlife Service (FWS) (retired); Michael Beck, Endangered Habitats League; Thomas Cavanaugh, U.S. Army Corps of Engineers; Loren Clark, Placer County Planning Department; Dan Cox, FWS; Kim Delfino, Defenders of Wildlife; Abigail Fateman, East Contra Costa County Habitat Conservancy; Lesley Hill, Orange County Transpor- tation Authority; John Hopkins, California Habitat Conservation Planning Coalition; Paul Jones, U.S. Environmental Protection Agency (EPA); Jan Knight, FWS; Charles Landry, Western Riverside Regional Conservation Authority; Chris Lee, Solano County Water Agency; Jennifer Norris, FWS; Galen Schuler, Green Diamond Resource Company; Edmund Sullivan, Santa Clara Valley Habitat Agency; Eric Tattersall, FWS; Robert D. Thorn- ton, Nossaman LLP; Michael Wellborn, California Watershed Network; and Doug Wheeler, Hogan Lovells. On July 30, 2015, CLEANR co-convened a roundtable on the issue of permit process coordination with the Center for Collaboration in Gover- nance (CCG) that was hosted by the Environmental Law Institute (ELI) [hereinafter ELI Roundtable]. The dialogue at the ELI Roundtable built on CLEANR’s research seeking to identify opportunities for coordinated NEWS & ANALYSIS 46 ELR 10131