BCDC Jurisdiction and Authority
BCDC’s authority derives from two statutes, the McAteer-Petris Act and the Suisun Marsh Preservation Act. The McAteer-Petris Act is found at Government Code Sections 66600 to 66684. The Suisun Marsh Preservation Act is found at California Public Resources Code Sections 29000 to 29612.
Under the McAteer-Petris Act, BCDC’s jurisdiction of the San Francisco Bay includes:
- The Bay itself (all areas that are subject to tidal action, including sloughs, from the south end of the Bay to the Golden Gate to the Sacramento River, as more specifically defined by the Act)
- A shoreline band of land extending inland for 100 feet from the shoreline of the Bay
- Salt ponds (as defined by the Act)
- Managed wetlands (as defined by the Act), and
- Certain waterways consisting of all areas that are subject to tidal action on named tributaries that flow into the Bay, as listed in the Act
BCDC’s jurisdiction of the Bay and the certain named waterways extends to the mean high tide line in areas that do not contain tidal marsh and up to five feet above mean sea level in areas of tidal marsh.
The McAteer-Petris Act requires that any person or governmental agency wishing to place fill in, or to extract materials exceeding $20 in value from, or make any substantial change in use of any land, water, or structure within the area of BCDC’s jurisdiction must secure a permit from the Commission (as well as any permit required from any city or county within which any part of the work is to be performed). The Act provides that the Commission shall grant a permit if it finds that the project is either: (1) necessary to the health, safety, or welfare of the public in the entire Bay Area; or (2) consistent with the provision of Act and with the applicable provisions of the San Francisco Bay Plan.
The McAteer-Petris Act establishes a number of policies that must be met to authorize the placement of fill in the Bay and in its “certain waterways” jurisdiction, including:
- The public benefits from the proposed fill clearly exceeds the public detriment from the loss of water areas,
- Further filling should be limited to water-oriented uses (including but not limited to ports, water-related industry, airports, bridges, wildlife refuges, and water oriented recreation and public assembly) or minor fill for improving shoreline appearance or access to the Bay
- Fill should be authorized for any purpose only when no alternative upland location is available for such purpose
- The water area to be filled should be the minimum amount necessary to achieve the purpose of the fill, and
- That the nature, location, and extent of any fill should be such that it will minimize harmful effects to the bay area such as the reduction or impairment of the volume of surface area or circulation of water, water quality, fertility of marshes or fish or wildlife resources or other conditions impacting the environment
The Act authorizes the BCDC to designate in the shoreline band certain water-oriented priority land uses that are essential to the public welfare of the bay area.
For a project within any portion of the shoreline band that is located outside the boundaries of water-oriented priority land uses, the McAteer-Petris Act provides that BCDC can deny a permit only if the proposed project fails to provide the maximum feasible public access to the bay and its shoreline consistent with the proposed project.
The Act exempts certain activities from the need to obtain a BCDC permit including:
- No permit is required for the construction within or upon any public highway or street of public service facilities within the area of the Commission’s jurisdiction.
- No permit is required for ongoing uses within the Commission’s shoreline band, salt ponds, and managed wetlands jurisdiction, provided that no substantial change may be made in such uses without a permit.
Suisun Marsh Preservation Act
The Fish and Game Code directed the BCDC to prepare the Suisun Marsh Protection Plan. The objectives of the Suisun Marsh Protection Plan are to preserve and enhance the quality and diversity of the Suisun Marsh aquatic and wildlife habitats and to assure retention of upland areas adjacent to the Marsh in uses compatible with its protection. The Suisun Marsh Preservation Act required Solano County, in conjunction with each local government and district having jurisdiction in the Suisun Marsh, to prepare, and to submit to BCDC for certification, a Local Protection Program that meet the requirements of the Act and implements the Suisun Marsh Protection Plan at the local level.
The Suisun Marsh Protection Plan includes a map for the Suisun Marsh delineating both the primary and secondary management areas of the Marsh. Under the Suisun Marsh Preservation Act, a marsh development permit is required for development projects anywhere in the marsh. The Commission issues marsh development permits for projects within the primary management area. For projects within the secondary management area, a marsh development permit must be obtained from the local government with jurisdiction over the land in which the proposed development would occur. Issuance of marsh development permit by a local government for a project in the secondary management area may be appealed to the Commission.
The Commission is required to issue a marsh development permit if it finds that the proposed project is consistent with either the provisions of the Suisun Marsh Preservation Act and the Suisan Marsh Protection Plan or the certified Local Protection Program. Similarly, a local government may issue a marsh development permit for a project within the secondary management area only if it finds that the proposed development is consistent with the certified Local Protection Program.
Coastal Zone Management Act
In addition to its permit authority under state law, BCDC exercises authority under Section 307 of the federal Coastal Zone Management Act (CZMA)(16 U.S.C. section 1456) over federal activities and development projects and non-federal projects that require a federal permit or license or are supported by federal funding. The consistency provisions of section 307 of the CZMA provide that any federal activity, including a federal development project, that affects any land or water use or natural resource of the BCDC’s coastal zone, must be conducted in a manner that is “consistent to the maximum extent practicable” with the enforceable policies of the BCDC’s federally- approved coastal management program. Similarly, any nonfederal activity that requires either a federal permit or license or is supported by federal financial assistance that affects the BCDC’s coastal zone must be conducted in a manner that is fully consistent with the enforceable policies of the BCDC’s federally-approved coastal management program.
BCDC uses its federally-approved Management Program for the San Francisco Bay Segment of the California Coastal Zone (Management Program) to exercise its federal consistency authority under the CZMA. BCDC’s Management Program defines the BCDC segment of the California coastal zone as being coextensive with BCDC jurisdiction under state law, incorporates the McAteer-Petris Act, the Suisun Marsh Preservation Act, certain other state laws, and various BCDC plans. The Management Program also provides that BCDC will generally follow its procedures for processing a permit application when it reviews a consistency determination for a federal project or activity, or a consistency certification for a non-federal project subject to consistency review.
The McAteer-Petris Act gives BCDC ongoing planning authority to study San Francisco Bay and amend the San Francisco Bay Plan, as needed, and to adopt special area plans with more specific findings and polices for of the Bay and its shoreline and other plans addressing special needs, such as seaports. Pursuant to this authority, BCDC has adopted special area plans that cover a portion of the San Francisco waterfront, the south Richmond shoreline, the Benicia waterfront, and Richardson Bay. In addition, BCDC has adopted the San Francisco Bay Area Seaport Plan as a component of the San Francisco Bay Plan.
The McAteer-Petris Act required BCDC to establish within the shoreline band the boundaries of water-oriented priority uses, such as ports, water-related industry, airports, bridges, wildlife refuges, water oriented recreation and public assembly, desalinization plants, upland dredged material disposal sites, and power plants requiring large volumes of water for cooling purposes. BCDC’s planning responsibilities include reviewing and amending the boundaries of its water-oriented priority use areas as needed.
The Suisun Marsh Preservation Act authorizes BCDC to amend the Suisun Marsh Protection Plan, as needed, and to review and certify local government agency amendments to the Suisun Marsh Local Protection Program.
BCDC has enforcement authority to ensure that anyone who is required to obtain a permit pursuant to the McAteer-Petris Act or Suisun Marsh Preservation Act does so, and that anyone who has obtained a BCDC permit complies with all of its terms and conditions.
BCDC can also enforce its laws and permits administratively. For violations that have not resulted in significant harm and can be corrected in a manner consistent with the Commission’s laws and policies, the Executive Director is authorized to impose standardized fines administratively.
The Executive Director can issue a cease and desist order with a 90-day duration and the Commission can also issue cease and desist orders. In addition, BCDC can issue an order setting an administrative civil liability penalty for violations of the McAteer-Petris Act.
If a party to whom a cease and desist order has been issued fails to comply with the order, BCDC can request that the California Attorney General seek judicial enforcement of the order and additional penalties for noncompliance with the order. BCDC can also enforce its laws and permits by requesting that the California Attorney General file a civil action in court and seek an appropriate judicial order, including an injunction to restrain any person from continuing activity in violation of a permit and the imposition of a civil penalty.
BCDC has a standing Enforcement Committee that hears enforcement actions and submits its recommendation to the full Commission for decision.