November 16, 2017 Enforcement Committee Meeting Summary

Five members of the Enforcement Committee attended the November 16, 2017, BCDC Enforcement Committee meeting, which was held at 455 Golden Gate Avenue in San Francisco.

Following a public hearing, the Committee adopted, with modifications, by a vote of 5-0, the Executive Director’s Recommended Enforcement Decision, including proposed Cease and Desist and Civil Penalty Order No. CDO 2017.04, that would be issued by the Commission for alleged violations of BCDC Permit No. 2002.002.09 and the McAteer-Petris Act at Westpoint Harbor, located at the end of Seaport Boulevard in Redwood City, San Mateo County.

The alleged violations include but are not limited to: (1) failure to provide required public access and public access improvements; (2) failure to comply with plan review requirements; (3) failure to maintain public access improvements; (4) failure to install required signs and buoys to protect listed species and sensitive habitat; (5) failure to provide required visual barrier to an adjacent salt pond; (6) failure to provide required mitigation; (7) failure to provide required certification of contractor review; (8) failure to secure a time extension to complete construction; (9) failure to provide required information regarding live-aboard boats; and (10) failure to provide required notification to NOAA regarding updated nautical charts.

The Executive Director’s Recommended Enforcement Decision and proposed order would require Mr. Sanders and Westpoint Harbor LLC by specified dates to: (1) cease and desist from violating BCDC Permit No. 2002.002.09; (2) make public access available; (3) submit a signage plan for review and approval, and install the approved signs; (4) submit plans for public access improvements for review and approval, and complete installation of approved improvements; (5) maintain public access areas and related improvements; (6) remove unauthorized improvements; (7) submit a complete application to amend the BCDC permit to request after-the-fact authorization for certain improvements or modifications; (8) install buoys and signs in Westpoint Slough; (9) submit a plan to provide visual barriers to the adjacent salt pond for BCDC review and approval, and complete installation of visual barriers; (10) provide shorebird roost habitat mitigation; (11) provide non-tidal wetland mitigation; (12) provide annual reports on live-aboard boats; (13) provide certification of contractor approval; (14) submit monthly status reports; and (15) pay an administrative civil penalty of $513,000.

The Enforcement Committee adopted the Executive Director’s Recommended Enforcement Decision with the following modifications: (1) the Enforcement Committee allowed the parties to attempt to negotiate mutually agreed-upon revisions to the cease and desist provisions of the proposed order to be presented to the Commission for its consideration; and (2) if the parties are able to mutually agree on proposed revisions to the cease and desist provisions of the proposed order, the Respondents would be entitled to a waiver of 50% of the proposed penalty (i.e., the penalty would be reduced from $513,000 to $256,500), provided that the Respondents comply fully with the order, as determined by the Executive Director. The Respondents would be required to pay the reduced penalty of $256,500 within 30 days of issuance of the order by the Commission.

The Enforcement Committee’s Recommended Enforcement Decision will be considered by the Commission on January 18, 2018. For details contact Marc Zeppetello (415/352-3655 marc.zeppetello@bcdc.ca.gov).

On January 18, 2018, the Enforcement Committee may hold a public hearing and vote on:
(1) a recommended enforcement decision including adoption of proposed Cease and Desist and Civil Penalty Order No. CDO 2018.01 for alleged violations of the McAteer-Petris Act by the North Coast Rail Authority in a tidal slough on the west shore of the Petaluma River adjacent to the Lombard Segment of the Northwestern Pacific Railroad, Marin County. For details contact Matthew Trujillo (415-352-3633 matthew.trujillo@bcdc.ca.gov); and (2) an appeal of the Executive Director’s determination that Scott’s Seafood, Inc. did not fully comply and in a timely manner with certain requirements of Cease and Desist and Civil Penalty Order No. CDO 2017.01, issued on April 7, 2017, and, therefore, is not entitled to a waiver of 15% ($59,304) of the total penalty of $395,360 under the Order. For details contact Marc Zeppetello (415/352-3655 marc.zeppetello@bcdc.ca.gov).