At night in a decrepit, sprawling oil field off Pacific Coast Highway in Newport Beach, burrowing owls swoop across the flat, coastal grassland hunting rodents.
At about 400 acres, privately controlled Banning Ranch offers one of the few remaining places in Southern California where the rare sandy-colored, long-legged predators – which biologists say need about 200 acres of hunting ground – can forage for food.
Now, a controversial reversal by analysts at the California Coastal Commission, who just seven months ago rejected a proposed property development plan worth at least $1 billion, could open the way for construction of roads, shops and hundreds of homes. The construction would happen in areas previously identified as habitat for the owls – which California has listed as a species of special concern – and other threatened and rare species.
The revised recommendation from the agency staff would allow development on 55 acres, a fivefold increase compared with a previous analysis. It represents a major shift during one of the most tumultuous periods in Coastal Commission history. In February, a majority of the 12 politically appointed commissioners fired their staff director, despite a wave of protests from residents, elected officials and environmentalists who worried that California’s coastal land use agency was taking a pro-development turn.
Banning Ranch, one of the largest pieces of undeveloped private land on the Southern California coast, is at the forefront of an intensifying struggle over how the powerful state agency should go about controlling development, protecting wildlife and ensuring public access to 1,100 miles of coastline.
The new commission staff recommendation increasing the allowable development area at the Newport Beach property hinges on a reinterpretation of a single sentence in the Coastal Act. That passage protects “environmentally sensitive habitat areas” that are home to especially rare plants and animals and are vulnerable to human encroachment.
The shifting interpretation of sensitive habitat reflects a larger point of contention between the Coastal Commission’s ecologists and the commission members, who include a public relations consultant, a former Senate adviser on environmental issues, a school district lawyer and the president of a development consulting firm.
The state’s experts tend to view the ESHA designations as a broad mandate to apply research-based habitat protections to everything that threatens what plants and animals need to survive and thrive. The commission’s current majority includes some who have suggested sensitive habitat restrictions are being over-used on degraded properties such as Banning Ranch. They’ve pressed for what they characterize as a less draconian, more common-sense approach to balancing public interests.
“How do you talk about environmentally sensitive land on land that is very polluted?” asked Todd Holmes, a historian at the UC Berkeley Oral History Center who is compiling a history of the Coastal Commission. “The idea of having something ‘pristine’ anymore – it’s 2016, come on. Our understanding of what is environmentally sensitive is going to have to adapt.”
A contentious series of events led to the reworked Banning Ranch recommendations, which are expected to return to the commission for a September public hearing in Newport Beach.
After years of deeming the developer’s application incomplete, agency staff last year recommended denying a proposal to build 1,375 homes. The analysts said limited camping facilities or a hostel would be acceptable on 11.5 acres of the site, with perhaps a smattering of high-density development at the property’s fringes. The remainder was considered off limits because of large protected habitat areas and buffer zones.
In a rare move at a hearing in October, the commission ordered staff to collaborate with the developer and draw up a proposal for a revised project that could be approved, arguing that it must be possible to build something on the site. As that re-examination was proceeding, commissioners fired executive director Charles Lester, criticizing him for slow responses to their requests. Many environmentalists protested the dismissal, saying Lester served as a firewall between sometimes politically driven commissioners and the biologists and analysts on staff.
“It’s demoralizing. An attack on the executive director is an attack on the staff. And it’s not over yet,” said Ralph Faust, a former chief counsel of the commission for 20 years. “What’s going to happen with the commission and staff and projects like this is still very much up in the air.”
Lester’s firing drew an unwelcome spotlight on the commission and prompted state lawmakers to propose new controls and transparency requirements for the panel. One proposed law, which a majority of the commission endorsed last week, would ban “ex parte” discussions – conversations on projects outside of public meetings – between commissioners and the developers, lobbyists and environmentalists trying to influence them.
Commissioners are required to report ex parte meetings. However, commission Chairman Steve Kinsey failed to report two meetings with Banning Ranch representatives in November and December, a fact he admitted only after the Los Angeles Times examined email records and inquired about the meetings. Kinsey has since asked commission legal staff to weigh in on whether he should recuse himself from future Banning Ranch proceedings.
The developer’s scaled-back proposal drafted after the October commission hearing cut nearly 400 homes from the project, bringing the total to 895.
Meanwhile, staff shrunk the areas designated sensitive habitat and ultimately recommended approval of the project, with some additional limitations on development. The developer’s new proposal would have included construction on roughly 90 acres of the site, or less than a quarter, while leaving the rest as open space and trails managed by a land trust.
“We strongly believe there is a reasonable compromise that will provide the appropriate amount of developable land,” said Sam Singer, a spokesman for the developer, which is evaluating the latest staff recommendation and conditions.
Compromises and negotiations on big coastal developments are common, said Holmes, the historian.
“The commission’s MO over the last 40 years has not been to stop development. It has been to shape it in a specific and careful way. You build smaller, you include public access, you address environmental concerns and scenic views,” Holmes said.
But Banning Ranch departs from past practice because staff directly reversed itself on habitat designations, Holmes said. For environmentalists, that’s an alarming shift, particularly if, as some suspect, staff tweaked scientific evaluations to match commission expectations. Holmes is among those who think that’s plausible, given the doubt commissioners had cast on the initial staff evaluation.
“I think experts should be listened to, because that’s what they’re there to do, is educate,” Holmes said. “The commissioners seem like they already have a decision made up. And that’s unfortunate.”
Reconciling the disparate interpretations of what should be classified and protected as sensitive habitat is complicated by the fact that so little land in Southern California has been left untrammeled. That was underscored last month at a special two-hour commission workshop on ESHA designations.
“It seems as if this idea of a degraded site versus this idea of not degraded are treated the same,” Commissioner Effie Turnbull-Sanders said at the workshop. “I don’t think logically you can say that ESHA on a formerly degraded site should be treated exactly the same as something that is naturally occurring. … We have to think about these things with some level of distinction.”
But state biologists who survey wildlife and classify plants and animals on a site generally don’t take the appearance and past use or abuse of the land into account.
For them and the Coastal Commission lawyers who must interpret the Coastal Act, the presence of rare wildlife matters most, even on the ugliest and most degraded land
“Most ESHA is disturbed to a greater or lesser degree. It is rare to find pristine habitat,” said Jonna Engel, a Coastal Commission staff ecologist, adding that fires can sweep through habitats, oil wells can be drilled, pollution can seep into the soil, and non-native plants often invade.
But under the law, and courts’ interpretation of it, experts say, degraded and pristine land are viewed the same, as long as they support rare wildlife.
“Degraded habitat can still qualify as ESHA … even if it has non-native species, or even in some cases if it’s dominated by non-native species,” said Erin Chalmers, a staff attorney at the Coastal Commission. “An area may qualify as ESHA even if a layperson like myself may not think it looks or seems like ESHA.”
During the workshop, Coastal Commission staff described at length the extensive biological surveys that are done to assess populations of plants and animals on each part of a property, and the lists of rare and threatened species compiled by California’s Department of Fish and Wildlife that are consulted to determine ESHA designations.
Commissioner Martha McClure questioned the consistency of ESHA determinations, saying some areas seem to be designated ESHA even when they have few plants. “I’m not happy with our definition,” McClure said. “It seems kind of whimsical on how the determination is (made).”
Common perception often differs from the staff’s interpretation, panel chairman Kinsey said, especially when it comes to degraded sites. “It’s when we get into areas where it’s highly degraded and heavily used,” he said. “These are the areas where this commission at least is going to be struggling with the balancing.”
Room for owls
Environmental activists fear the revised analysis of Banning Ranch may signal a power shift, with commissioners subtly gaining more sway over staff’s science-based recommendations on sensitive habitat designations for species such as the burrowing owls.
Historically, the commission determined sensitive habitat areas by looking at the entire area an animal might use, said Steve Ray, the executive director of the Banning Ranch Conservancy, which opposes the project.
The revised analysis of the project site, he said, appears to consider only those areas where the birds and other animals have actually been spotted.
As it is now, the Newport Beach owls have about 150 acres of grassland and other area to forage on, according to a biologist hired by the conservancy. Under the latest staff recommendation, condos and shops could rise on much of the flat grasslands – they’re prime spots for building – which also could be separated by streets.
“The birds don’t just need a place to sit on a bush where their nest is. They need to forage and disperse,” Ray said. “It’s scientifically ridiculous to declare where you saw it is what they use, not the patch next to it. But now that’s what the commission is doing.”
That more fragmentary approach – allowing houses and roads between patches of habitat – is new, said Sara Wan, a former commissioner and a biologist. “It flies in the face of how we’ve always looked at ESHA in the past,” she said. “But I’m not surprised, given the pressure put on staff to make these changes by the commissioners.”
An area must be “especially valuable” to get the ESHA designation, and, as environmentalists point out, that’s a vague requirement. It means certain areas, such as Banning Ranch, can become more environmentally valuable as similar areas are destroyed or eliminated, they argue.
“We’re realizing there’s really not very much left of certain kinds of open space, and what’s left really has value even though it has been disturbed in the past,” said Todd Hamilton, the conservancy biologist.
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