February 16, 2006 Commission Meeting Minutes

Approved Minutes of February 16, 2006 Commission Meeting

  1. Call to Order. The meeting was called to order by Vice Chair Halsted at the Metro Center Auditorium in Oakland, California at 1:10 p.m.
  2. Roll Call. Present were: Vice Chair Halsted, Commissioners Bates, Brown (represented by Alternate Smith), Cutler (represented by Alternate Leonard), Fernekes, Gibbs (represented by Alternate McClure), Goldzband, Gordon, Hicks, Jordan, Kniss (represented by Alternate Carruthers), Kondylis, Lai-Bitker, Lundstrom (represented by Alternate Messina), McGlashan, Mossar, Moy, Peskin, Wagenknecht, and Waldeck. Also in attendance Assembly representative Sevag Sarkissian.

    Not Present were: Governors Appointee (Randolph) Resources Agency (Baird), Businesss, Transportation and Housing Agency (Barna), Contra Costa County (Gioia), Department of Finance (Klass), U.S. Environmental Protection Agency (Schwinn), and State Lands Commission (Thayer).

  3. Public Comment Period. There was no public comment.
  4. Approval of Minutes of December 15, 2005 Meeting. Vice Chair Halsted entertained a motion to adopt the minutes.

    MOTION: Commissioner Kondylis moved, seconded by Commissioner Carruthers to approve the minutes of the December 15, 2005. The motion passed and the minutes were adopted.

  5. Report of the Chair. Vice Chair Halsted provided the following update:
    1. There is one change in the final agenda, Item 12 (requiring action by the Commission) will be taken before item 11.
    2. Until a few months ago the Enforcement Committee consisted of six members and an alternate, Mike Rippey and Annette Rose, Rod McLeod, Eric Carruthers, and Betsey Cutler with Dena Mossar serving as an alternate. Four of those members no longer serve on the Commission, leaving us only three members, which is the quorum needed for the committee to operate. To ensure that the Committee is able to function, Chair Randolph has asked that I seek the concurrence of the Commission for the following appointments to the Enforcement Committee: Dena Mossar, would become a full member of the Committee rather than alternate; Geoffrey Gibbs, Larry Goldzband and Charles McGlashan. Any other members of the Commission interested in serving on this Committee should contact Sean Randolph.MOTION: Commissioner Carruthers moved, seconded by Commissioner Wagenknecht to approve the recommended names for appointment to the Enforcement Committee. The motion passed.

      This is the first meeting of 2006, and at this point, it appears that it will not be necessary to hold another meeting until April 20, 2006. We had thought the application for the expansion of the landfill in Solano County would be complete by now, but later today we will be taking up an agreement with the applicant regarding a process for gaining scientific review of the mitigation measures proposed for the landfill expansion. It will probably take a few months to complete this review process. The public hearing on the Landfill Expansion can’t be scheduled before May or June. We intend to hold that hearing in Fairfield and will schedule a tour of the landfill in the morning prior to our afternoon hearing.

      One of the days that would normally be held for a BCDC meeting will now be used as an orientation briefing for new members of the Commission. This meeting will be held on Thursday, March 16 at the BCDC office in San Francisco.

      The April 20 meeting will be held at the MetroCenter and the following matters will be taken up:

      1. If it is decided at today’s meeting to initiate the process of considering revising of a Bay Plan port designation in Oakland, a public hearing will be held and the revision will be voted upon.
      2. A public hearing and vote will be held on the application for a mixed-use development along the shoreline in Benicia.
      3. A public hearing will be held on revising the provisions in the Bay Plan dealing with legacy contaminants in the Bay.
      4. (4)And finally, a report on the progress being made in carrying out the strategic plan will be considered.
    3. Ex-Parte Communications. If any of our commissioners may have inadvertently forgotten to report ex-parte communications whether written or oral, they were invited to report on such communications now.

      Commissioner McGlashan said he has written summaries, and mainly to report publicly on the Waldo Point Harbor Permit situation December 22; and January 30 discussing the Army Corps permit for waterfront options to try to reach agreement between BCDC and the Corps and the project applicant.

      January 5th on Paradise Cay meeting with BCDC staff on ways to solve the problems with construction delays, the stipulated agreement versus contested order. In his role as Supervisor in Marin County, a closed session was held regarding Paradise Cay on January 19, 2006. He had various communications in December 2005 and provided the BCDC attorneys with an e-mail record of a number of communications he had received from residents of Paradise Cay complaining about conditions in the harbor.

      January ’05 through January ’06 various e-mails unread but kept consisting of various communications from residents in Paradise Kay in Marine County.
      Finally, on the 9th of ’06 he copied Commissioners on telling the community that Will Travis would be meeting with them on this matter.

      Commissioner Chang said she had some conversation on the 101 HOV Lane Project.
      Commissioner Peskin said BART came to him to brief him on the seismic retrofit behind the Ferry Building in San Francisco, which is before the Commission.

  6. Report of the Executive Director. Mr. Travis provided the following report:
    1. Emergency Permits. Since the last meeting, after consulting with Chair Randolph, three emergency permits were issued to deal with the storms that have occurred this winter. The first was to the Department of State Parks and Recreation to place rip-rap along the shoreline at Candlestick Point State Park to prevent further erosion and complete loss of a public access pathway.
      The second permit was issued to the City of San Leandro for levee repair and debris clean-up along approximately 2,300 feet of the shoreline. This work required the temporary closure of a section of the Bay Trail.

      The final permit was issued to Sausalito Marine to replace two piles and wrap five more to keep them from failing in an expected storm.

    2. Budget. As he informed the Commission in memos issued over the past month, the Governor’s proposed state budget for California’s 2006-2007 fiscal year includes a 4.1 million dollar budget for BCDC, which is nearly identical to the current year budget and the size of BCDC’s staff would remain the same at 33 positions. The significant cutbacks BCDC has had to endure over the past four years has caused a deterioration in the quality of the service BCDC provides to the public, complaints from permit applicants and a backlog of work. Without a reinvestment in the Bay management program, it will be impossible to deal with these problems or to address the issues that the Commission has identified as critical to the Bay in the future when it developed its strategic plan last fall.

      One of the objectives the Commission put in its strategic plan was that it should seek the restoration of the 16 staff positions that have been lost over the past few years. Rather than look to the past and try to restore what has been lost, he felt it would be better to develop a proposal that looks to the future. What has been determined is that BCDC can markedly increase its productivity and begin to implement the strategic plan by hiring 11 additional staff members with the appropriate educational backgrounds, experience and skill sets and by providing a broader range of information technology and clerical support to these new and existing staff.

      That plan that has been developed would require an investment of just slightly more than one million dollars in FY 06-07. He has begun to discuss this proposal with members of the Legislature with the goal of securing an augmentation to the Governor’s proposed budget. Hearings are beginning to be scheduled in the Legislature and he will keep the Commission apprised of the status of the Legislature’s deliberations on this request.

    3. Alviso Update. A brief update on an enforcement case was provided. It involves a number of vessels, structures and assorted debris, all moored or constructed without authorization in Alviso Slough in Santa Clara County.

      As the last step in an earlier enforcement effort to clean up the Slough (about five years ago) a court order was obtained requiring Mr. Robert Childers to remove three vessels from BCDC’s jurisdiction. He has not complied with that court order so the Santa Clara Valley Water District agreed to assist BCDC by removing the vessels. They intended to do this last month. Just before they were set to remove the vessels, Mr. Childers filed a lawsuit against BCDC, claiming that he could not remove his boats because we had damaged them. BCDC believes his case is completely without merit and trying to get it dismissed as quickly as possible. Meanwhile BCDC is moving ahead with enforcing the court order that requires the vessels to be removed.

      BCDC has also initiated a new comprehensive program to clean up Alviso Slough by surveying the area to locate new violations and notices have been issued to the owners of vessels and structures, as well as the owners of the underlying property where violations were found. Several of the parties involved, including the Santa Clara Valley Water District, the City of San Jose and the State Lands Commission are cooperating in this effort. Other parties are less responsive and as a result, this initiative may result in some contested enforcement cases that will take some time to resolve.

    4. Statement of Economic Interests. It is time, once again, for members of the Commission to file their annual Statement of Economic Interests and to assist members in meeting this requirement, a Form 700 was sent to each member with instructions. It must be received in BCDC’s office or postmarked by April 3rd. If you have any questions, please contact Jonathan Smith.
    5. Amendments to McAteer-Petris Act. A memo was sent out to members a few weeks ago transmitting revisions to the McAteer-Petris Act which went into effect the first of this year. The changes deal with BCDC’s responsibilities in preparing a Bay Water Trail plan. Please incorporate these revisions into the copy of the McAteer-Petris Act in the Commissioner’s reference binders.

      Commissioner Carruthers said that it was a particularly effective presentation of our budget position, more so than most agencies.

  7. Commission Consideration of Administrative Matter. Mr. McAdam was available to answer any questions on the administrative listing that was provided to the Commissioners. There were no administrative matters.
  8. Public Hearing and Vote on Measures to Address Concerns Raised by the Bay Planning Coalition. Mr. Travis provided the following background information:This issue started 21 months ago when the Bay Planning Coalition wrote to the Governor’s Office to express concerns that the organization had about getting permits from BCDC and what they saw as overlapping and duplicative regulation, and BCDC’s interpretation of some Bay Plan policies.

    The Coalition asked that BCDC be investigated and that it be stripped of some of its authority. Although these letters weren’t directed to the Commission, staff thoroughly investigated everything that was raised and a rather large and comprehensive detailed report was provided.

    Staff found that the complaints were overstated and noted that the Coalition had raised concerns about changes it had perceived over a two year period and that was the two year period in which BCDC’s staff had been cut by one third. Mr. Travis said he felt it was amazing that if you cut the staff by one third it wouldn’t result in some deterioration of the quality of service to the public and some delays. And even though staff tried to maintain the highest level of service and delays were minimized that seemed to be the heart of the problem.

    The Commission considered the report that the staff had prepared on August 19, 2004 and decided not to take any action at that time, but the Bay Dredging Action Coalition stepped forward and said if there are all these concerns there must be some substance to them, so they offered to serve as a facilitator between BCDC staff, members of the Bay Planning Coalition and the environmental community. The Commission accepted their offer and discussions have been held for the past 15 months. One of the issues dealing with dredging was an overarching problem of the Long Term Management Strategy (the five agencies that deal with dredging in the Bay). This issue was referred to LTMS and they provided a solution that was satisfactory to everyone.

    Another issue dealing with sand mining was addressed through another separate set of discussions.

    Most of the issues dealt with the permit process, and frankly, those conversations took the most time. What staff is bringing to the Commission today, are its recommendations for handling all of these issues. Some of the concerns were resolved by simply having staff be clear in explaining what the existing process is. There was considerable misunderstanding of what was required, how the process worked, and what needed to be done. Some can be resolved by making some minor refinements of existing practices. A few will need some formal changes in regulations and staff is prepared to start this process as resources are available. There are absolutely no changes of State law that are needed to resolve any of these issues.

    One of the important things that did get acknowledged is that adequate funding for BCDC is essential to carry out the existing process and to make the needed refinements that staff is recommending. Both the Bay Planning Commission and the Bay Dredging Action Coalition have agreed to support requests for needed funding and they are working with BCDC to get this in front of the Legislature.
    He thanked everyone who participated in the dialogue that they have had over the past 15 months. It has been interesting, it has been constructive, and everyone approached this with an open mind and constructive ideas. In particular, he thanked the Bay Dredging Action Coalition for serving as a facilitator, and particularly Lee Halterman’s work.

    Mr. McAdam provided staff’s recommendation on how to address the Bay Dredging Action Coalition’s Report as follows:

    First, staff recommends to continue to implement the following measures: working with applicants on all other permit application requirements while special status species consultation and Regional Water Quality Control Board permit processing are occurring; recognizing that no further endangered species consultation is required for dredging projects that will take place within the environmental work windows established by the LTMS programmatic biological opinion; promptly conferring with applicants to resolve issues raised by their proposals and quickly notifying applicants of any changes in proposed permit conditions needed to address concerns raised by other agencies at the last minute; accepting applications for projects that do not include public access if the applicant believes that no public access is required, regardless of whether or not the staff thinks it does; accepting applications for projects where on-site public access is unavailable if the applicant has (a) agreed to provide adequate funding for in lieu access elsewhere, and (b) identified the purpose and recipients of the inland fund; authorizing the ongoing maintenance of projects approved by BCDC permits, except where a particular maintenance activity would violate a new regulatory requirement; and determining on a case-by-case basis whether the authorization of ongoing maintenance is appropriate for activities approved by an emergency permit; authorizing on a verbal basis emergency repair work as soon as an emergency situation has been verified and following that with a written permit application process thereafter; processing permit applications in a manner that is transparent to applicants and the public and that promotes a culture of cooperation among applicants, the public and BCDC; and relying heavily on other resource agencies for technical advice on issues for which the other agencies have the primary authority and closely coordinating BCDC’s regulatory program with other state and federal agencies.

    Second, the staff recommends that we continue to implement the following measures which they have actually already begun: notifying all applicants, by e-mail if requested, of the date when their applications are complete and filed, which extends the staff’s current practice to non-material amendments (which we haven’t been doing said notification in the past); providing a two part letter, what we call a 30-day letter, that provides the staff’s initial review of permit applications, and the first part would identify materials needed to complete the application, and a second part suggesting ways to refine the proposal so that it conforms to the Commission’s laws and policies (this approach has been used for many years but is now being made more formal; accepting copies of applications and materials provided to other agencies as a means of providing information required by BCDC’s permit applications so long as the items are referenced to specific BCDC questions; and revising a sand mining permit condition so that the names of tug captains no longer have to be provided.

    Third, the staff recommends that we implement the following measures, so long as you believe that they are acceptable: initiating the process of amending the Commission’s regionwide permit that authorizes dredging projects to extend that authorization period from 30 months to 5 years, so long as better public notice can be provided for the Dredge Material Management Office, or DMMO, consideration of individual dredging episodes within that longer permit period; refining BCDC permit conditions so they are more closely aligned with the requirements of federal and state Endangered Species Act consultation requirements; revising the Commission’s permit conditions regarding final plan review so that better plans are submitted by the permittee in a timely manner, so that staff review of the final plans is limited to ensure in consistency with the approved project design, public safety, disabled accessibility, sufficiency of durability and maintenance, and the encouragement of public use and enjoyment of the area and also that it is clear to permittees that the staff plan review decisions that can be appealed to both the Design Review Board and to yourselves; adopting by the Commission a statement of BCDC public obligations, which you’ll find as Attachment D in your document, and describe the specific measures the Commission would take to ensure that the public is provided with a timely and equitable regulatory process; making use of a document prepared by the sand mining industry as part of a corroboration of a draft programmatic alternative analysis for sand mining activities in the Bay; scheduling a public hearing and possible vote of the draft alternative analysis, and if the Commission determines that the analysis establishes that there is no practicable alternatives to sand mining in the Bay, then incorporating this conclusion into future permits for sand mining in the Bay until such time as conditions change sufficiently to warrant a new programmatic alternative analysis, or until Bay Plan Sub-tidal Policy Number Two has been revised based on further review of sub-tidal issues.

    Finally, the staff recommends that if the Commission so chooses, we begin the process to amend your Regulations to implement the following measures assuming that sufficient resources are available to do it: allowing the administrative approval of dredging projects up to ten years in duration, rather than the existing five year period, so long as better public notice can be provided for DMMO consideration of individual dredging episodes within that longer time period; and specifying that the results of any consultation on special status species required by federal or State Endangered Species Acts, and any required Regional Water Board approval for projects with water quality implications, must be provided as a filing requirement for a BCDC permit application.

    Mr. McGlashan asked what the implications are of recommendation 19. Would BCDC rely on this document until such time policy number two is revised? He also asked for a sense of the staff’s level of comfort with relying on this policy.
    Mr. McAdam said the policy is one of two policies that BCDC would typically use when it is considering sand mining applications. Policy one, speaks to the environmental impacts associated with sand mining and any other activity that might occur in a sub-tidal area that is scarce or valuable for wildlife habitat. Policy number two talks about scarce areas, and it has two criteria when considering work in those scarce areas: filling, changes in use and dredging projects in these areas should therefore be allowed only if (a) there is no feasible alternative and, (b) the project provides substantial public benefits. Action Item 19 would look at the no feasible alternative issue.

    Staff will continue to look at the environmental impacts associated with these types of projects, but rather than having each sand mining activity prepare its own feasibility analysis, BCDC will prepare a programmatic alternative analysis for feasibility. The Commission will review this and hold a public hearing and then agree that, in fact, it is acceptable and then staff would use this finding in each of the sand mining cases to address this one policy issue. Staff is very comfortable with this approach. Staff will embark upon the programmatic alternatives analysis immediately, and if the Commission determines it is acceptable it will last for a period of time, until something happens in which the Commission believes it no longer is valid.

    Commissioner Carruthers asked if staff knows where the areas of problems are to which the programmatic analysis would apply.

    Mr. McAdam said the first sentence in the policy states: “Subtidal areas that are scarce in the Bay or have an abundance and diversity of fish, other aquatic organisms and wildlife, for example, eel grass beds, sandy deep water, or underwater pinnacle.” Mr. Travis said this was the policy that was the concern of the Bay Planning Coalition. This would apply to areas as proposals come in from sand mining.

    The concern was based on the fact that currently some of the sand that is used to meet the Bay Area’s construction needs is imported into the Bay Area. The industry looked at this and said this policy could be interpreted in such a way that the Commission might conclude that it is feasible to meet our needs by not mining sand from the Bay because we are already importing sand.

    The idea is to look at the overall regional picture of how much material is needed to meet the Bay Area’s construction needs, where it is coming from, and if there is an incremental part of this that is met and can only be met by mining sand from the Bay. So this is looking at the regional macro picture. If the conclusion is that sand from the Bay has to be mined, then you can apply the rest of the policy.
    Commissioner Waldeck said he heard in the presentation that instead of dredging being checked every 30 months, it goes for 5 years, and instead of being checked every 5 years it goes to 10 years. He asked if this is when permits are re-issued along the way and how is this not back-sliding on BCDC’s enforcement. Mr. McAdam said this would certainly lengthen the time that dredging permits, or permit amendments are issued, but in the staff’s mind, the real action is at the DMMO level. Staff believes that they can adequately control and manage dredging projects on a longer permit basis because it is looking at it so closely on an every episode basis. Conditions in the permits would allow the longer authorization to morph over time, so new information can be brought in and dealt with on an episode-by-episode basis.

    Commissioner Waldeck asked if the DMMO is adequately staffed. Mr. McAdam said they are not perfectly staffed, but BCDC has a staff member on the DMMO and by lengthening the time period of these permits it would allow this person to more closely pay attention to what is happening on an episode-by-episode basis.
    Commissioner Lai-Bitker said there was concern about some of the routine dredging that is done every two years. The applicant has to apply each time and it makes a long process for the paperwork, and because of this they sometimes miss the window. She asked about the time frame and what it means to staff when the policy states that it also depends on resources. Mr. McAdam said amending a regulation typically takes between six months to a year. And the regulations amendment needs to be put into the BCDC attorney’s workload, so he couldn’t say that the process would start tomorrow, but he would put it into the workload at the appropriate level.

    Commissioner Goldzband asked if staff has begun partnering with the Department of Conservation Division (DMG) on the sand mining issue. Mr. McAdam said they have been going back and forth with Mines and Geology over the sand mining and the reclamation plan requirements associated with the sand mining. He said staff has a good working relationship with them, and at this point Mines and Geology is responsible for the reclamation plan aspect of sand mining. In terms of the programmatic alternatives report that is being recommended, and the report that the sand mining industry is providing as background to this, staff does intend to send them to Mines and Geology and have them provide an expert review.

    Commissioner Messina said he would like to strongly support and endorse the direction that the staff is taking with regards to the extension of the permit and the change of the resources. To the extent that BCDC forward plan this and coordinate it, it will be better for everyone. This process will allow BCDC to put resources to better use and allow better planning by the various municipalities.
    Commissioner Kondylis said there was an issue dealing with sand mining which was overmining; taking more material out than the permits called for. Will the changes inhibit BCDC from catching these kinds of mistakes? Mr. McAdam said it will not inhibit BCDC in any way or its ability to enforce.

    Commissioner Carruthers asked: (1) for a refresher on the consultation on special status species requirements, and (2) is the small dredger programmatic alternative analysis set up to go or does some work have to be done to implement this?
    Mr. McAdam said typically when there is a potential to harm endangered species there has to be consultation. There are two endangered species acts; one at the state level and one at the federal level, and there is a different consultation process associated with each. Typically, the one BCDC gets involved in is the consultation process with the U.S. Fish and Wildlife Service, which is triggered by the applicant through the Corps of Engineers permit process. The Corps has a formal consultation process with the U.S. Fish and Wildlife Service. BCDC is then faced with whether it is going to issue a permit that leads to a take of an animal without the information provided by the State Department of Fish and Game or U.S. Fish and Wildlife Service as to what that harm would be and what kind of conditions BCDC should put in their permits to make sure that doesn’t happen.

    Mr. McAdam verified that the small dredger programmatic alternative analysis is done.

    Commissioner Leonard said what he is hearing, and he wants this to be clear for the record, is that what is being proposed will not have any impact on the ability of the Commission to address either permit violations or the need for permit modifications over time. Mr. Mcadam said that is correct.

    Mr. Bob Cheasty and Lee Halterman, from Bay Dredging Action Coalition (BDAC), provided a brief overview of BDAC. Mr. Cheasty said the Bay Dredging Action Coalition is an organization that is dedicated to seeing that the shipping channels are kept free so that we don’t lose the shipping industry in the Bay Area and that we can continue to operate on marinas and use the clean dredging materials for wetland restoration. He thanked BCDC for the opportunity to serve as facilitators of this process and supports the staff recommendations for the improvements that were set forth by Will Travis and Steve McAdam. BDAC also supports the budget recommendations in order for BCDC can continue to do its public service.
    What worked in this process was the willingness of BCDC staff to fine tune the process and streamline the handling of the issues and problems and to make sure that they were having an opportunity to have a better and more effective dialogue with the applicants and the users. The BCDC staff were not only helpful but were open to ideas and extremely willing to implement the ideas.

    Among the others that participated in the process were the shippers, ports, marinas, sand miners, oil refiners, Save the Bay, Citizens to Complete the Refuge, the San Francisco Estuary Institute, a couple of water districts, the Bay Planning Coalition, the Bay Dredging Action Coalition, and an ILWU representative. There was one person who without his diplomatic skills and intellect this wouldn’t have happened and that person is Lee Halterman.

    Mr. Halterman said this was an extraordinary testament to good will and the ability of people to come together in behalf of common sense and good public service. He thanked the Commission for providing BDAC the opportunity to play a positive role in this process. He said the staff report that the Commission has in front of them is a very balanced outcome. This was no small task for these groups to come together and find a positive outcome and consensus. This is a very interdependent set of recommendations. While some of them are easy to do and have been done, others of them will require work.

    BDAC is formally going forward to support the budget request and it is part of the plan recommendations. They want to be part of the work plan process and they are committed to helping bring the resources to the table to allow all of the elements of this plan to get put into place, because it was in this spirit that the stakeholders agreed that this was a final balanced outcome.

    Walt Gill from Chevron made the following comments: “Good afternoon Madam Chair and members of the Commission. My name is Walt Gill and I’m here today representing Chevron. And we were before the Commission, it has been well over a year ago, to express some concerns that we had about the BCDC permitting process critically relative to routine dredging and other refinery related projects. We then were a part of, and involved in, the numerous discussions that occurred among the various stakeholders the past year and we’re pleased to see that that process has come to fruition and we believe has produced a productive result. The work group discussions, as you can imagine at times, were difficult but throughout that dialogue, I think we gained a better understanding of the challenges that the BCDC staff has in processing our permit request. We gained a better understanding of the perspectives of the environmental community, and then, quite frankly, gained an understanding of some of the shortcomings that we’ve had as permit applicants in working with the staff.

    So we believe the recommendations will result in some process improvements that will improve the efficiency of the permitting process for both the BCDC staff and us as their customers and would ask your support in adopting the recommendations that have been produced on the permitting and policy issues, and we look forward to seeing those implemented.

    I want to echo the thanks to Mr. Halterman, Mr. Cheasty and Mr. Travis and the staff as far as their leadership and patience in the processed. As Mr. Cheasty mentioned also, many of the improvements have been implemented and we’re seeing a greater level of service and satisfaction as our permit applications are being process, so thank you.”

    Bill Butler with Hanson Aggregates made the following comments: “Good Afternoon Madam Chair, Members of the Commission. My name is Bill Butler and I’m Vice President of Operations for Hanson Aggregates in northern California and I too am glad to be standing here addressing an item which we’ve all worked on for these many months. And I would echo my thanks as well to BDAC and Lee Halterman for their facilitation of this work, to BCDC staff for their participation, to the NGOs and the other stakeholders that participated in the process. It was great to sit at the same table and look each other eye-to-eye and be able to understand each other a little better. And, too, the other representatives from Bay Planning Coalition and business that participated.

    The item that you have before you this afternoon is really the culmination of a lot of hard work and many months of meetings to address concerns; some legitimate important concerns that were raised regarding BCDC’s permit process and interpretation of some of its policies. I can personally say that I believe that the working group process that we went through and the dialogue that was established was extremely valuable, and I think successful, in re-establishing open lines of communication and frankly, more importantly, establishing some levels of trust between the stakeholders that participated.

    The process was really an exercise in compromise as Lee Halterman presented. Not everybody got everything that they wanted when they went in. Business representatives, Bay Planning Coalition certainly didn’t get everything that we were asking for. The NGO’s didn’t get everything they were asking for and BCDC staff agreed to make some changes in the status quo.

    But what happened in the end is that we all agreed to the consensus position that is presented in the BDAC report. And that report recommends a number of actions and changes and I would submit that we can only consider this process a success, if the things that are recommended in the report are implemented. And so I would, therefore, respectfully urge the Commission to adopt the recommendations of the three working groups outlined in the BDAC report with respect to the alternative analysis for dredge disposal, the permit process, and the issue that’s near and dear to my heart, the sub-tidal policy number two alternative analysis.
    We look forward to working with staff on these issues going forward. Commissioner Goldzband you’d be happy to know that we actually have submitted a report for their review on that alternative analysis and it utilizes DOC’s mineral resources report information, and we do have a reclamation plan approved by the way, too. So, thanks for the opportunity to comment and thank you for your Commission support of your staff and all the other stakeholders.”

    Ellen Johnck with Bay Planning Coalition made the following comments: “Good Afternoon. I’m Ellen Johnck, Executive Director of the Bay Planning Coalition. I’m also Vice President of the Bay Dredging Action Coalition for many years, so I feel very much an integral part of this process. And we’re certainly pleased to be a major party in the submittal of the consensus report to the Commission today for adoption and we certainly do urge your adoption.

    We worked very hard and long on these issues and look forward to seeing all 19 recommendations implemented in the BCDC work program. You know today is not the culmination of a process. It’s the beginning, I believe, of a new era and new opportunities for rebuilding and affirming a culture of cooperation among task force members, our BCDC staff and our organization colleagues. And of course we want to thank the staff. It took a lot of time to work through these issues, and Lee, particularly as well.

    We are going forward assuming that these recommendations will eventually be implemented in the work program and, therefore, we pledge to work with you to identify the staff needs to implement your entire work program including these items and, of course, identify and support the funding that you need to move forward. So, I want you to know that and I also again want to just thank you for the support for this effort and I think we’ll see increased vitality for both the Bay’s economy and the environment as a consequence. Thank you.”

    Margaret Kettunen Zegart made the following comments: “Hello. I applaud the communion that has happened between the two groups and I think it’s wonderful that they are going to affirm a cooperation between the business community and the environmental communities, and as they said the NGOS. The concern here really – because if you are trying to do something which is going to give you industrial efficiency, as was said, the progress and even feasibility, it seems to me that a very significant aspect of public access is essential to your goal as Commissioners. And it is a waste of time and a waste of everyone’s effort for the applicant to not realize when they come in with an application that public access will be a component of this project. And so I wondered, and I wrote a letter, and I suggested just re-phrasing that. I think that would be an important thing to change and modify because the process that you go through is certainly one of public access.

    And then another point, the length of time, especially when you ask to have the draining permits increased from five to ten years, and there are so many concerns when you think about the things that have happened and how the whole Bay floor has changed, so I think there should be some level that would allow for modification of the permit in terms of some kind of significant disaster, or some kind of significant change.

    And so those are the – and I made another point also in the letter, which you probably read. But I thank you for those considerations and I certainly thank everyone who worked on this and I thank you too.”
    MOTION: Commissioner Kondylis moved, seconded by Commissioner Mossar to close the public hearing. The motion passed.

    Commissioner Jordan asked if there was some background associated with item 11 that might be helpful in understanding why it’s here. She said it doesn’t look like anything is changing and wanted to know if there was some event that happened that sprouted this particular item to be given special attention. Mr. McAdam said some people in the regulated community believed that if staff believed that public access was required and they did not, that BCDC staff would prevent them from coming to the Commission to make the decisions by simply not filing their application if there wasn’t a public access component to it. But this is not the case. There are some projects where public access is a given. In some projects that are very small, public access is not a consideration. Then there is a group in the middle where it’s a close call.

    Commissioner Leonard said on items 11 and 12 it refers to endorsing the current practice and part of what this involves is really clarification of policies that may not have been entirely understood. He congratulated everyone in this process and he is very appreciative of everyone who worked to this end.

    Commissioner Jordan said she supports Ms. Zegart’s addition to item 11 and would like to add it on to the document. Mr. McAdam said he doesn’t feel it is necessary, although he wholly agrees that public access is an important component of the program. Ms. Zegart’s letter implies that public access should occur with every project and this is not the case.

    MOTION: Commissioner McGlashan moved, seconded by Commissioner McClure to approve staff’s recommendations. The motion passed unanimously.

  9. Public Hearing and Possible Vote on Proposed Coastal Management Program Assessment and Strategy. Leslie Lacko provided the following background information:
    This assessment and strategy was developed in concert with the Commission’s strategic plan.

    Staff identified current and future Bay related issues, as well as objectives to improve BCDC’s program. Staff then received public input during a facilitated public workshop. Then the issues and objectives, and public comments were presented to the Commission at its Strategic Plan Workshop.

    How is the assessment different than the Commission’s strategy plan? The assessment and strategy contains program improvements that will be eligible for a specific federal grant funding through the year 2010. In order to be eligible for Section 309 grants, state coastal management programs must complete every five years a program assessment and strategy for the following five years. Whereas all the priorities that the Commission set in its strategic planning workshop may be included in the strategic plan, only those eligible for the Section 309 funding are included in the assessment and strategy.

    The assessment and strategy is organized to correspond to nine coastal issues that Congress determined to be nationally significant. They are: public access; coastal hazards; ocean resources management; wetlands protection and restoration; cumulative and secondary impacts of development; marine debris; special area management planning; energy and government facility citing; and aquaculture.
    This document provides an assessment of BCDC’s coastal management program, prioritizes program enhancement areas, and presents a five year strategy to enhance BCDC’s coastal management program.

    The assessment ranks five enhancement areas as high priorities for improving a program. Program change number one is wetlands protection and restoration; number two is coastal hazards; number three is energy and government facility citing; number four is cumulative and secondary impacts; and number five is public access.
    The wetlands program is the first priority program enhancement and the major improvement is the comprehensive interagency science based Subtidal Habitat Goals Project. BCDC has entered into a partnership with NOAA Fisheries, NOAA’s National Ocean Service, U.S. Environmental Protection Agency, the California Coastal Conservancy and San Francisco Estuary Project to serve together as the administrative core group for the Subtidal Habitat Goals Project.

    The second priority enhancement area is BCDC’s Coastal Hazard’s Program and there are two major program changes that are proposed to improve this program. The first is a project that evaluates the impacts of climate change on the Bay, and promotes a regionwide education about the impacts and results in updates to the relevant policy sections of the Bay Plan. The second is a disaster preparedness project that involves working cooperatively with government agencies to address the impacts of disasters on Bay resources and shoreline developments, and would result in updates to the Bay Plan findings and policies pertaining to shoreline protection and safety of fills.

    The third priority program is energy and government facility citing and the enhancements in this area focus on primarily airports and secondarily water related industry. The regional airport planning project is a major enhancement in the program area. The project would assess and characterize the recent changes in aviation industry relative to their impacts on the Bay and update the Bay Plan findings, policies and priority use area designations to reflect and respond to changes in the aviation industry.

    The smaller project within this government and energy facility citing program is an update to the Bay Plan findings, policies and priority use area designations pertaining to water- related industry.
    Finally, under the cumulative and secondary impacts of development program there are three Bay Plan policy sections that would be updated to improve the overall program. One is water surface area and volume; two is fresh water inflow; and three is invasive species.

    Laura Thompson of the San Francisco Bay Trail Project made the following comments: “Good afternoon. I’m Laura Thompson, manager of the San Francisco Bay Trail Project and I want to thank you for the opportunity to speak in support of the coastal management program. BCDC has established a very productive partnership with the Bay Trail Project over the last couple of years through this coastal management program. And we’re very pleased to see that public access is listed as one of the five enhancement areas ranked as high priority so that we can continue this momentum. This program and the Federal CIAP funds have been extremely effective for shoreline public access, construction outreach and research through the completion of several projects that are outlined in the staff report, and I’m just going to briefly list them.

    There are three grants that have been provided funding for shoreline trail construction in the San Francisco Presidio, Pier 14 along the Embarcadero and in Napa County. The initial project worked in partnership with BCDC staff by completion of the first phase of the shoreline access web guide, which has become an effective public outreach tool.

    The coastal management program has also imported wildlife and public access field research to contribute to the scientific record analyzing the effects of public access on wildlife with recommendations for design solutions to minimize impacts.
    The new comprehensive sign program is outlined and updated and a consistent look for shoreline access signs, including a re-designed Bay Shore logo that compliments the BCDC signs.

    So, we support the future public access strategies that are outlined in the staff report, including expanding the information that is part of the shoreline public access web guide, working to develop a regional water trail plan, BCDC’s continuing leadership in addressing public access opportunities and challenges in wetland restoration areas, as well as our involvement in contributing to the recreation policy update.

    I would like to thank BCDC management, as well as staff members, Joe LaClair ,Caitlin Sweeney, and Brad McCrea for their support and I look forward to continuing in this partnership.

    MOTION: Commissioner Fernekes moved, seconded by Commissioner Carruthers to close the public hearing. The motion passed.

    Commissioner McGlashan asked what staff’s sense of momentum is on assumptions around expanded petroleum sites in the waters, and what does BCDC have for guidance in working towards its goals of environmental protection and public access protection. Ms. Lacko said the California Energy Commission just completed their 2005 Integrated Energy Report, which is a two year planning process. One of the major components of their report is looking at the petroleum industry and what they are expecting of future imports. They are expecting a large increase in imports and one of the major importing areas is the Bay Area.

    The greater reason for having the water related industry policies in the assessment and strategy is because they are so outdated. The water-related industry priority use area designations would more than likely be reduced in the future because there is so much of that space that is not being used.

    Mr. Travis said it is important to understand that the fundamental purpose of this document is that if we want to apply for federal funds to look at an issue, and we cannot apply for those federal funds if we have not, in this document, identified that as an issue that we believe is important. This has no policy implications.
    Commissioner Leonard said when you look through the first part of the assessment and strategy and then flip to page 79 to begin the program enhancement strategy portion, it notes that there is a high likelihood of completion of these elements. Does this include high likelihood of the funding being there to implement these elements? Ms. Lacko explained that in each item that is in the strategy it is somewhat different. There are some items in the strategy that are funded and those that are not it is hoped to get 309 funding to complete. Mr. McAdam added that BCDC may not have enough permit analysts to implement the policies that come out of this.
    Commissioner Leonard said his comment is on the issue of disaster preparedness in relation to this issue, in particular, of potential increase in sea level. It would be very helpful both potentially from the standpoint of fiscal contributions toward this, and also from the standpoint of involving local governments more in the activities and the studies of this Commission. He believes that this is the nexus where there is the greatest opportunity for local government involvement in an appreciation of the work of this Commission, and also potential financial contributions towards this element.

    MOTION: Commissioner Carruthers moved, seconded by Commissioner Leonard to approve the staff recommendation to approve the assessment and strategy and direct the staff to forward the document to NOAA’s Office of Coastal Resource Management for its final review and approval, and as part of this recommendation, the Commission grants the Staff authority to make minor non-substantive changes that may be proposed by OCRM; any changes that are recommended by OCRM that are substantive or of a policy nature will come back to the Commission for approval. The motion passed unanimously.

  10. Public Hearing and Vote on Whether to Initiate a Possible Amendment to the San Francisco Bay Plan and the San Francisco Bay Area Seaport Plan to Delete a Portion of the Oakland Port Priority Use Area East of Interstate 880 in Oakland and to Approve a Memorandum of Agreement to Secure Payment of the Commission’s Cost of Processing the Proposed Amendment. Mr. Blanchfield presented the staff report as follows:

    The Commission has received an application from BUILD West Oakland, LLC and Central Station Land, LLC to amend the Seaport Plan and the Bay Plan maps by deleting the Port priority use area from a six-acre-parcel on the east side of Interstate 880 in Oakland at West Grand Avenue and Wood Street
    Under the Commission’s regulations Commissioners must determine first whether they wish to consider this amendment, and if so, set a public hearing to hear the merits of the proposed project.

    If the Commission decides to hold a public hearing, the staff will mail a descriptive notice to all interested parties and a staff report will be prepared and mailed to the Commissioners and all interested parties at least 30 days in advance of the hearing.

    The applicant is required to pay for the Commission’s time in processing and acting on the application. This application stems from the Commission’s approval in 2001 of an application by the Port of Oakland and the Oakland Base Reuse Authority to modify the Port priority use designation on the closed Oakland Army Base. That amendment allowed the Re-Use Authority to re-use part of the Army Base for other than Port uses, and it also allowed the Port of Oakland to reconfigure its lands to more effectively and efficiently layout its seaport terminals and its Joint Intermodal Terminal, thereby increasing significantly Port cargo throughput.

    During the hearing process, many trucking interests pointed out the need to reserve additional land for trucking purposes to support the Port. The Port and the Army Base Reuse Authority agreed to each set aside 15 acres for trucking purposes. The amount of land that the Port of Oakland identified was 22 acres instead of 15. The Commission agreed with this and designated those lands as port priority use areas.
    While all this was occurring the applicants were in the process of beginning negotiations for the acquisition of part of that 22 acres that the Port of Oakland had identified, included the historic train station.

    The applicants have proceeded to obtain all their entitlements for residential and commercial use development, approximately 27 acres around the historic train station, including 6 acres out of the 22 acres that the Commission had designated a port priority use area.

    The applicants are applying to the Commission to remove the 6 acres from Port priority use. If the Commission chooses to do so, it would still leave 16 to 17 acres designated for port priority use area for trucking purposes.

    The staff recommends that the Commission hear the application, approve the attached descriptive notice to the staff report, and schedule a public hearing at your next meeting, April 20th, to consider the application. Staff also recommends that the Commission authorizes the Executive Director to enter into a Memorandum of Agreement with the applicants to fund the Commission’s processing and acting on the application.

    Commissioner Waldeck asked if there are any mitigations involved in the Seaport Plan change, or is it just that the applicant would pay BCDC for their costs. Mr. Blanchfield said it would be to pay BCDC’s costs for processing and acting upon the application. No mitigation would be involved.

    Commissioner Mossar said the Figure 1 map has confused her because the arrow appears to be pointing to open water, but from the presentation it should not be pointing to the water. Mr. Blanchfield said the arrow points to the site which is east of Interstate 80. Mr. Travis pointed out that the dark area is not water, it is the port priority use area.

    MOTION: Commissioner Gordon moved, seconded by Commissioner Kondylis to close the public hearing. The motion passed.

    MOTION: Commissioner Lai-Bitker moved, seconded by Commissioner Messina to adopt the staff recommendation. The motion passed unanimously.

  11. Consideration of Strategic Plan Status Report. Mr. Travis said there are no changes in the monthly status report.
  12. .Public Hearing and Vote on a Memorandum of Agreement between the Commission and Potrero Hills Landfill, Inc., Regarding Proposed Mitigation Plans for the Potrero Hills Landfill Expansion Project. Mr. Smith presented the staff report as follows:

    The staff recommends that the Commission authorize the Executive Director to execute on behalf of the Commission a Memorandum of Agreement with the Potrero Hills Landfill Company. Potrero wants to expand its landfill operation and the secondary management area, the Suisun Marsh, and must obtain a marsh development permit from the Commission, after the Commission determined that the appeals from the issuance of a marsh development permit by Solano County raised substantial issues of compliance with the Marsh Act, Marsh Plan and Marsh Local Protection Program.

    The memorandum of agreement would allow the Executive Director to choose, and require the company to pay for, a panel of scientists to review and evaluate the project, the possible adverse environmental impacts associated with the project, and proposed mitigation for the project. The scientists would prepare written reports that would be available to the Commission and to the public and would help the staff prepare its application summary and its staff recommendation on the project.

    The scientists would also be available at the public hearing on the proposed project to respond to any questions that the Commission might have. The applicant would pay for the scientists, and the Commission would control the Panel’s work product.

    The staff does want to make one change in the proposed language of the Memorandum of Understanding. In the Scope of Work, Section 2-E, Task 5, page 3 the first sentence should read: “Review the proposed mitigation plan and determine to what extent the plan offsets the potential adverse impacts of the proposed project.” This change emphasizes that the scientists will provide us scientific information, but it will leave the decision making to the Commission.

    Commissioner Waldeck asked if part of the proposal had to do with Potrero Hills doing recycling or taking potential garbage out of the waste stream. Mr. Smith said it is not part of this proposal. This proposal is simply intended to supplement the information that has been provided to date through the environmental review process so both the staff and the Commission has a complete understanding of the project, and the potential adverse impacts associated with the project, and proposed mitigation and impacts that might actually arise from the proposed mitigation.

    Commissioner Kondylis said she is concerned about the way this is worded. The Suisun Marsh Preservation Act and the Local Protection Program have statements in it, that are very specific, i.e., no new roads in the marsh. She would like it to be perfectly clear that because the Commission is looking at mitigation doesn’t mean that mitigation is something that will make up for adverse impacts. Mr. Smith said ultimately this decision will be left to the Commission, but he clarified that this document is simply saying to the extent that you conclude mitigation should be, and is legally available, as a method to try and bring the project into compliance, BCDC will provide the information needed to determine, among other things, if that mitigation is appropriate. This document does not in any way bind the Commission, or affect its ability to reach the conclusion later concerning whether the local protection program allows the Commission to impose mitigation conditions as a way to make the proposed project consistent with the L.P.P.
    Commissioner Goldzband said he is dreading the de novo public hearing. He said he felt it might be helpful for him and other Commissioners to sit with staff for a briefing before the hearing happens, in order to discuss issues such as what we can ask, what we can’t ask in terms of the jurisdiction that we have, what we think will be appropriate to ask and how the whole process will work.

    Mr. Travis said this is a good idea and he can schedule a briefing a few weeks before the scheduled public hearing.

    Commissioner Carruthers asked what is the relationship of this work and what the Commission’s deliberations will be relative to the EIR that has been adopted. Does this have any relationship at all, is it independent, and is it a supplement to the EIR? Mr. Smith said it is essentially separate from the EIR and the EIR process although information contained in the EIR could also provide information to help the Commission review the project.

    Commissioner Carruthers asked if Solano County has any role in what the Commission is undertaking at this point. Mr. Smith said they are an interested party, like anyone else. They issued a permit, the permit was appealed to the Commission, the Commission determined that it raised at least one substantial issue. Therefore, the Commission accepted the appeal and the county permit goes away and they are just like anyone else now.

    If the Commission ultimately approves the project and it goes forward, then the project sponsers will also have to comply with the local use permit issued by the county. But the local use permit was not a marsh development permit, it was simply their local permit which is separate and distinct from the marsh development permit that now must be obtained from the Commission. If the Commission does not issue a permit, the project sponser cannot go forward with the project.

    Commissioner Carruthers asked staff to put the scientists on notice that seasonality is an issue. Mr. McAdam responded that scientists’ work will occur during the wet season.

    Commissioner Kondylis asked if the roundtable discussion will be open to the public. Mr. Smith said staff prefers that it not be open to the public. There will be ample opportunity for the public to comment on the document, as well as anything else associated with the project, when the Commission holds the public hearing on the application. Mr. Smith said that we want the scientific panel to stay away from policy issues and when you open the roundtable discussion up to the public, you simply get arguments about position rather than questions and answers about science.

    Commissioner Leonard said this is not part of the CEQA process. He said we are seeking information and the information could, in effect, be content for potential findings on which to base the decision, but the idea is not to pre-judge or predetermine the decision itself.

    Commissioner McGlashan asked Mr. Smith if his interpretation of Arthur Feinstein’s letter to narrow the purview of the scientific panel intruded on our policy decision making authority and that is why the broader language is being recommended. Mr. Smith said that the letter raised a hard point that is slightly different. Staff had used the word “adequately” in the original language, which Mr. Smith is now proposing to take out, because it is not up to the scientific panel to decide whether something adequately addresses all of the impacts. This is the Commission’s purview.

    Dr. Albert Lamm made the following comments: In order for the EIR to support the expansion of the Potrero landfill there needs to be four elements in the document. You need a list, an exhaustive list, of the hazards involved; you need a list of the mitigations or measures which will reduce each measure to a level as established by the government to be safe; the third element is to show a quantitative correlation between each mitigation and hazard to show how effective it is to reduce that element to a safe level; and finally, a conclusion whether it is a less than significant impact on the environment.

    The problem with this is that it does not show – does not have element three. It does not show a correlation between the mitigations and the hazard it’s purported to reduce. What you see is a list of mitigations and you see a conclusion that there is no significant impact to the environment. That’s missing.

    As a seasoned working engineer for over 20 years, I have never seen a document like this. If I were to make a proposal, I’d of course include tasks, but I would also have to include information showing how each task would contribute to the achieving of the particular stated goal of the proposal. Nobody would accept that unless I included that and we don’t see that here.

    I work in the semi-conductor equipment industry and if we were to apply the model of the EIR to my views and my customers it wouldn’t be something like this. I would tell my customer that I designed this piece of equipment to pass all your specifications. Because of this I do not need to show you any supporting data. I expect you to sign off the tool and accept it only because I tell you that I will pass.

    Of course, no customer would accept that. So, this is what I think we see in this EIR report. So, as a consequence it cannot legitimately claim that the impact of this proposal would be less than significant on the environment. So, I urge the BCDC to approve the MOA to deem this panel to rigorously conduct a scientific examination of this project for the first time. I am confident that given that, that the folly of this expansion, which will increase the possibility of this contaminant source being exposed on to this fragile environment, I think that this will be self evident.
    Thank you.

    Catherine Cook from Solano County stated that she is an aide to Supervisor Krohn. He agrees this process will be helpful to reach an informed decision with regard to the impacts on the expansion.

    She emphasized that it is essential that the review panel be an independent group of scientists.

    She asked that the lead for the panel be an independent expert from academia, a non-profit, or a governmental agency rather than from a private consulting firm. The reason would be to ensure, in so much as possible, a purely scientific view of effects on this proposed expansion, rather than – our experience is that consulting firms purpose is to help get a project approved, so we just want to insulate this panel from that potential problem.

    Lastly, she expressed reservations about the proposed project schedule, which has been mentioned by some of the Commissioners. The present environmental impact report took over a year and a half to complete, so even though the environmental review panel has a more focused goal, to accomplish it in two months seems very ambitious.

    David Tam, who is one of the appellants on the marsh development permit, stated that he supports the recommendation of Arthur Feinstein which is in your packet. Tam also found the response from staff to be both informative and helpful in clarifying what could be the intent of the panel. And he concurred in the comments that have been made on behalf of Supervisor Krohn about some realism about this.
    Tam suggested that some of the Commissioners ask the project respondents if they could describe the Mitigation, Monitoring, and Adaptive Management Plan that they delivered today. Tam believes that it would be appropriate to have some idea of what plan it is and just a picture in everybody’s minds eye of what it might be. Where are they going to put the mitigation?

    June Guidotti asked what is Steve Peterson’s title? His vocation? His profession? His qualifications by education and experience? Who is his principal employer? The clients what are the specifics of his role on this panel on behalf of the employers of the clients in explaining on the decision on the MOA project scheduled on page 4. What is his role?

    On page 4, the project schedule states, that Potrero Hills Landfill is submitting an adaptive management plan for February 16, 2006. Guidotti stated that she asked when she got here, whether a copy of this management plan was available today so the public could review it. She was told that there was no plan and that she could make a copy of Jenn Feinberg’s copy. (Feinberg is a BCDC Staff member) could make me a copy of hers. She said no. She said it is really thick and it is colored pictures. Guidotti stated that the public has a right under the marsh law to participate in the decisions that are made in the Marsh and asked for a public workshop so that there be more time for the public to see the report results prior to the final decision by BCDC’s meeting on May 12th.

    Guidotti stated that the report states that there be three sites only. There’s four quarters in the season. Guidotti also wondered if anyone is currently under contract or contemplating for a contract.

    Guidotti also stated that there was a lot of work to be done on this project in a short period of time, so she wondered if Potrero Hills has submitted to BCDC a list of possible scientists. If so, is a list of scientists available to the public today? Can you tell us who the people are on the public today? She also asked if Potrero Hills Landfill will agree that question numbers 10 and 11 be made available to the public today. Will Potrero Hills agree to continue consideration of approval of the MOA to the March 2nd meeting or the April 20th meeting, she also asked if BCDC would continue consideration of this MOA to the March 2nd or April 20th 2006 meeting.

    Commissioner Kondylis asked staff to let Ms. Guidotti know when they receive the document, so she can review it. The document was received on February 2nd and a copy will be mailed to her after the meeting.

    Mr. Travis commented on the schedule issue. He said the schedule is very tight and staff acknowledges this. At the request of the applicant, we are starting here and will try to keep to this schedule, but obviously if staff thinks they need more time to get the work done and the information prepared and available in the format that it needs to be for the Commission and the public the deadlines will be extended.

    The proposed MOA does require the report to be able to be put on BCDC’s website.
    Arthur Boone from Oakland stated that the genius of America was taking conflict out of the streets and putting it in the courtrooms. That’s the basis of the National Labor Relations Act, that’s the basis of the Civil Rights Act, and it’s also the basis of the Bay Conservation and Development Commission. Somewhere in these type of forums we have to balance the interest of the forces that are concerned with development and the forces who are opposed to development.

    There is nothing in this MOA that talks about the forces that are opposed to development.

    The people who are objecting to this process and to the granting of the permit are not represented in the selection of the scientists. You can’t really tell from reading this document that the Executive Director of the Agency is going to pick them. It sounds like the garbage company is going to hire them. Why are they hiring them? Who’s nominating them?

    Mr. Boone warned that the panel would be stacked with scientists who couldn’t find anything that couldn’t be mitigated because they’re out there and they’re available for hire and that the staff, would not necessarily make the right decision.
    Mr. Boone also stated that the kind of people you want protecting the environment are people like me or June Guidotti.

    Mr. Boone stated that the Commission should go to Ms. Guidotti’s property and walk up the hill and look over into the creek area. It’s really beautiful this time of year. The hill is all green, everything has really turned lovely, and the garbage is just gradually filling up this little valley, and eventually it’s going to stand about a hundred feet higher than the highest hill in the Potrero Hills.

    Mr. Boone further stated that once there were 21 landfills under the jurisdiction of the Bay Conservation and Development Commission. We now have 7, and 3 of those are going to be gone in the next two years west Contra Costa, Fremont and Palo Alto. That’s going to leave us 4 landfills; Potrero, Redwood in Marin County and Leavy Island and Zanchar Road in San Jose.

    The issue of how you pick these scientists is very important.
    Jane Bogner stated that she represents the Sierra Club in Solano County and lives in Vallejo. The Sierra Club engaged the law firm of Shofe, Mihaly and Weinberger to help the Sierra Club understand and comment on the legal and environmental issues of the situation in the marsh and the protection of our marsh, especially in regards to the expansion of the Potrero Hills Landfill. Bogner thanked the staff for getting into this hiring of scientists and getting the science of the marsh into the hands of the Commissioners.

    Bogner asked that the public be allowed to participate, to the same extent that the Potrero Hills Landfill and its representatives are allowed, in the roundtable discussion.

    Alternatively, Bogner asked that the Potrero Hiills not be allowed to participate unless the public is.

    Bogner concluded by stating that a little delay in this process is valuable as everyone will have to live with this for the next 50 plus years. The ultimate decision of this panel, of this project, not only affects the Marsh but impacts our highways, our air quality and our water quality.

    Dwight Acey, from the Citizens Against the Dump, asked that the Adaptive Management Plan be made available not only to June Guidotti, but be made available to other groups.

    MOTION: Commissioner Goldzband moved, seconded by Commissioner Kondylis, to close the public hearing. The motion passed.

    Commissioner Waldeck asked if BCDC has a requirement that any documents that are submitted to them should be submitted in electronic format. Mr. Travis said there is not a regulation to that effect, but he does encourage people to submit an electronic form so it can be put on the website.

    Commissioner Jordan asked for clarification for why the public is not included in the roundtable discussion. Mr. Smith said the thinking behind this was to keep this where it would essentially be the scientists talking with one another. The possibility occurred to staff that if the public were there, and particularly if the public starts participating in the exchange, it may become more of an exchange of political views and less of what we would hope to be an exchange of scientific views and discussion of scientific views. However he also stated that to decide if the public should be allowed to participate.

    Commissioner Jordan said it seems wrong to have Potrero Hills Landfill representatives at the table and not include the appellants.

    Commissioner Gordon said he concurs that there may be some value for an opportunity for the scientists to have a candid conversation among themselves, but he would prefer to remove Mr. Peterson and representatives of Potrero Hills from participating in that meeting.

    Commissioner Goldzband said the purpose of the meeting is not to have the public debate the scientists because the public is not trained the way the scientists are trained. The purpose of a public hearing, on the other hand, is not science, and certainly it’s not efficiency. It’s to hear the public, talk about what they have learned from the scientists and to hear the Commissioners and staff discuss what they’ve learned from the scientists.

    Commissioner Goldzband does not think the public should be a part of the roundtable. Excluding the applicant from that discussion may be a worthwhile thing to discuss, however it is the applicant and the applicant understands the issues in such a way and actually has some kind of basis for discussion that needs to somehow be addressed by the scientists.

    Commissioner Leonard said he feels we are in between here, and Commissioner Gordon’s suggestion is appropriate, the reason being that this roundtable discussion among the scientists themselves could give them the list of questions they would need to submit to the applicant for further information. But if the applicant is going to be there then Commissioner Leonard feels the public should be there as well.

    Commissioner Mossar said she agrees.

    Commissioner Kondylis supported either following Commissioner Gordon’s suggestion or allowing the public to attend but not participate.

    Mr. Travis said the applicant has stated that if the public is there, the applicant believes that it is not worth having the roundtable. The applicant is willing not to attend the roundtable if the public is excluded.

    MOTION: Commissioner Gordon moved, seconded by Commissioner Smith, to adopt the draft Memorandum of Agreement with one modification, and that is to item 2, f, task 6 the roundtable panel discussion, to remove Mr. Peterson and other representatives of Potrero Hills from participation and the roundtable would involve only the scientists and BCDC staff.

    Commissioner Carruthers said that at some point it may be useful for the scientists to be able to talk to the applicants about the project in order to get their information, and he asked if the scientists will have the opportunity to contact the applicant in order to ask questions. Mr. Smith said there will be site inspections so the scientists will have to interact to some degree to get on the site with the landfill operators. Secondly, staff would be happy to act as a funnel; if the scientists have specific questions they can ask them through staff and staff can get the answers in that way.

    Commissioner Kondylis asked if staff will be giving the Commissioners an interpretation of what the local protection plan anticipated when it gave permission for an expansion of the landfill. It is her understanding that that expansion has already taken place in the initial plan. The landfill has expanded to some degree, but the current proposal involves a major expansion. Ms. Kondylis said the local protection plan hasn’t been updated in many many years, and so when the language was put into the local protection plan it anticipated an expansion that to date has already occurred. Mr. Smith said the staff would investigate this, but he does not know of anything in the local project program that states you get one expansion and that is the end of it.

    Commissioner Bates asked if the scientists will meet again with the Potrero Hills representatives after they do their on-site visit. Mr. Smith said if they think it is important to meet again, the staff would facilitate that.
    Chair Halsted asked for a vote of the motion on the table. Motion passed with one abstention.

  13. New Business. There was no new business.
  14. Old Business. There was no old business.
    MOTION: Commissioner Kondylis moved, seconded by Commissioner Bates to adjourn the meeting. The motion passed.
  15. Adjournment. The meeting was adjourned at 3:55 p.m.

Respectfully submitted,

Executive Director

Approved, as corrected, at the San Francisco Bay Conservation and Development Commission Meeting of May 4, 2006