TCS Daily


California Beach Bums

By Michael De Alessi - April 8, 2003 12:00 AM

Put two good environmentally smart ideas together - recycling old tires and creating kelp beds, which along with coral reefs are one of the "rainforests of seas" - and what do you get? In California, only litigation and conflict at the hands of the state's own imperious Coastal Commission.

California's coastline is one the most gorgeous and dramatic in the world. It is also among the most heavily regulated. The California Coastal Commission controls all 1,150 miles of it. As such, the commission is, as one commentator put, "one of the most powerful and influential regulatory bodies in the country."

Into its maw stepped Rodolphe Streichenberger, a retired French aquaculture entrepreneur. With help from the late marine biologist Wheeler North of CalTech, a noted expert on kelp beds, he hatched a plan for seeding the seas with kelp forests.

Kelp forests are havens of biodiversity. They provide habitat for fish and other aquatic life that help clean the water, and they produce oxygen for the air. But they've been receding in California, according to the state's Department of Fish and Game, especially in Southern California. The 1997 El Nino took an especially harsh toll.

Streichenberger's Newport, Calif.-based nonprofit Marine Forests Society wants to stem this decline by creating artificial kelp habitats. The idea is to seed shellfish, especially mussels, on suspended plastic tubes, which then creates the right ecological conditions for kelp growth. The kelp themselves attach to a series of submerged tires, the cheapest non-toxic, durable substrate they could find.

Detractors have accused the society of simply dumping junk - but the marine life is there for all to see (although by mandate there is now no maintenance of the reef). And the tires provide an immediate habitat for fish, becoming encrusted over the years to create a lasting resource for fishing.

The Marine Forests Society received approval from Newport Beach officials and a lease from the state Department of Fish and Game for a 10-acre experimental reef, which it planted in 1993.

But then the Coastal Commission asserted its jurisdiction. It deemed the reef "unpermitted development," and refused to issue a retroactive permit. In 1999, the commission ordered the society not only to "cease and desist" but remove the bed it had created, forcing the Marine Forests Society into court.

That case has gone on since 1999. Last year, though, the courts acted not against the Marine Forests Society, but against the commission. First a Superior Court and then the state appeals court in December declared the commission "unconstitutional" due to its exposure to political influence. Specifically, the appeals court found that the legislature's ability to appoint and remove at will eight of the commission's 12 members violated the state's separation of powers clause.

A special legislative session was held to fix the problem, offering an historic opportunity to fix the commission's two biggest flaws - cronyism and a rabid, arbitrary anti-development attitude.

Environmentally aware and concerned entrepreneurs had proposals that would have enhanced the commission's effectiveness in protecting the environment while meeting the state's economic need for development.

Instead, in January, the legislature, in an emergency session, papered over the differences, simply extending the terms of the legislature's commission members from two to four years and ending the legislature's ability to remove them at will.

As a result, expect more litigation, waste and controversy - the norm for commission since its inception in the early 1970s.

The Commission came into being in response to disagreement over another eco-friendly development - The Sea Ranch - a plan by developers for housing along a 10-mile stretch of the Northern Sonoma coast.

Developed in the 1960s, that plan incorporated a strict set of architectural and visual covenants that mandated every home fit into the natural setting and tread as lightly as possible on the coast. For example, no property lines would be visible, no ocean views obstructed, no building would occupy the actual coastline, only natural wood exteriors would be used, and only native vegetation would be planted.

Indeed, the Sea Ranch Condominium, one of the first buildings constructed, is still studied today by architects around the world. To reduce its environmental impact it was set into the natural landscape, took advantage of clustered but private housing, and used solar power.

Environmentally friendly, though, wasn't good enough. Because it put limitations on public beach access, the Sea Ranch stirred up a debate that eventually led to the passage of Proposition 20 in 1972. It established a commission to deal the controversy, which became permanent when the Legislature passed the Coastal Protection Act in 1976.

The original commission wasted no time in imposing a building moratorium on the Sea Ranch, beginning a long and acrimonious fight that took special legislation in 1980 to resolve, to no one's satisfaction.

Lawmakers tried to enforce a compromise, letting some development go ahead (cutting it in about half), while assuring access to beaches. But the prolonged battle with the commission forced the owners of the Sea Ranch to abandon their vision. They needed an infusion of capital, and the only way to get it was to liberalize their covenants.

The bottom line: While a Sea Ranch Design Committee still approves all construction and landscaping, and the community is still an innovator in many ways, it is hardly up to the standard set by the original condo. Or, as one environmentalist put it, "The original, idyllic concept of Sea Ranch became a network of overgrown vacation homes, private roads and well-off transplanted residents." In addition, coastal access is restricted. At Black Point, one of the few access points, visitors must pay a $3 county parking fee and then face a quarter-mile walk to the beach. It was among the first of many debacles.

Other controversies followed, many exposing corruption in the commission's operations.

In 1987, the U.S. Supreme Court ruled against the Coastal Commission in one case, saying that the Commission's demands for land in exchange for permits amounted to "an out-and-out plan of extortion."

In 1992, now former Commissioner Mark Nathanson was convicted for soliciting bribes in exchange for coastal building permits.

And last October the San Francisco Chronicle reported that Gov. Gray Davis' re-election campaign received "$8.3 million from donors with business before the Coastal Commission," most of whom "got their permits approved" shortly thereafter.

Little wonder, then, The San Diego Union Tribuneeditorial board accused the commission of being as unsavory as a corrupt "third world government."

Now comes the latest case against the commission, arising from its contemptuous opposition to an experiment that could reinvigorate the coastal ocean with beneficial kelp forests.

Entrepreneurs have fueled the growth of the Golden state, and with that growth has come pressure on the environment. Tapping into that entrepreneurial spirit should be a priority for environmental protection agencies, but the Coastal Commission has squashed any innovations that have come its way. Other states such as Alabama, on the other hand, have experimented with artificial reefs and private reef creators, and as a result, Alabama has seen a dramatic increase in offshore productivity.

Newport Beach officials support artificial reef projects as well, and one of the most important steps that should be taken to limit the Coastal Commission's blanket authority is to cede more control to the local authorities best apprised of local conditions and most likely to feel the wrath of their constituents if they falter.

Scientific evaluation should also play a greater role in commission decisions. In the eyes of the commission, the problem with the kelp project seems to have more to do with jurisdiction and procedure than real environmental effect. In the same regard, The Sea Ranch was judged not on the criteria of ecological sustainability, but by a simple distaste for development.

The Coastal Commission doesn't need a cosmetic fix; it needs a dramatic restructuring:
  • Appointments to the Commission should be made by the governor and subject to review by the Legislature
  • Property rights should be respected
  • Local authorities should have more leeway to set policy
  • Above all, entrepreneurs should be encouraged to find innovative solutions to environmental problems - rather than discouraged as they are now.

Peter Douglas, one of the authors of Prop 20 and its most prominent employee ever since, recently wrote: "The coast is never finally saved. It is always being saved." Of course, he is right, but only as long as politics rules the day. The Coastal Commission has many important functions. But unless it is fundamentally reformed to limit its arrogance, it will remain mired in controversy, litigation and corruption - and the environment will suffer because of it.

Michael De Alessi is director of natural resource policy at the Reason Foundation.
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