February 7, 2008 Commission Meeting Minutes

Approved Minutes of February 7, 2008 Commission Meeting
1. Call to Order. The meeting was called to order by Vice Chair Halsted at the Ferry Building in San Francisco, California at 1:07 p.m.

2. Roll Call. Present were Vice Chair Halsted, Commissioners Baird (represented by Alternate Potter), Bates, Bourgart, Brown (represented by Alternate Tim Smith), Gibbs, Goldzband, Gordon, Jordan Hallinan, Kniss (represented by Alternate Carruthers), Lai-Bitker, Lundstrom (represented by Alternate Sanchez), Maxwell, McGlashan, Moy, Nelson, Peskin, David Smith, Silva, Wagenknecht, and Wickowski (represented by Alternate Drekmeier). Charles Taylor, Legislative member was also in attendance.

Not Present were: Governors Appointee (Randolph), Department of Finance (Finn), Contra Costa County (Gioia), U.S. Army Corps. of Engineers (Hicks), State Lands Commission (Thayer), and Regional Water Quality Control Board (Vacant).

3.Public Comment Period. Ellen Johnck, of the Bay Planning Commission, extended an invitation to Commission members to attend the Bay Planning Commission’s “25th Anniversary Celebration” on April 17th & 18th, 2008 at the Oakland Marriot. The celebration will be combined with the annual decision makers’ conference. The theme is “Champions of 1983-2008 and Beyond” and the program will highlight the vision for environmental solutions that make business sense for the next 25 years.

4. Approval of Minutes of December 6, 2007 Meeting. Vice Chair Halsted entertained a motion to adopt the minutes of December 6.

MOTION: Commissioner Bourgart moved, seconded by Commissioner McGlashan to approve the December 6, 2007 minutes. The motion passed.

a. New Commissioners. Vice Chair Halsted welcomed new Commission members. She noted that Commissioner Joan Lundstrom appointed Mayor of Suisun City “Pete” (Pedro) Sanchez as ABAG’s alternate in representing North Bay Cities. The Solano County Board of Supervisors appointed John Silva, replacing Barbara Kondylis, with Mike Reagan as his alternate. Also, new to the Commission are Peter Drekmeier from the City of Palo Alto, Supervisor Sophia Maxwell of the City of San Francisco, and Governor Schwarzenegger’s appointee, Jim McGrath, representing the San Francisco Bay Regional Water Control Board.

The Commission prepared a draft resolution of appreciation for Barbara Kondylis. Commissioners unanimously adopted the resolution.

5. Report of the Chair. Vice Chair Halsted brought attention to the fact that BCDC is entitled to have three of its members serving on the Regional Airport Planning Committee. The current appointees are Tom Bates, Clifford Waldeck, and Dena Mossar. Since Clifford Waldeck and Dena Mossar are no longer BCDC members, replacements for the Regional Airport Planning Committee are necessary. Chair Randolph intends to appoint himself to fill one of the vacancies. Vice Chair Halsted said if any other Commission members are interested in filling the other vacancies to either let her or staff know.

In addition to serving on RAPC, one of BCDC’s seven appointees on the Regional Joint Policy Committee is vacant. If anyone is interested in serving on the RJPC, let her or staff know.

In lieu of the next regularly scheduled BCDC meeting on February 21, 2008, an orientation for new Commission members will be held. The briefing is open to the public and will be from 1:00- 4:30 p.m., on February 21, 2008 at BCDC’s office, 50 California Street, in San Francisco. All new members are strongly encouraged to attend.

a. Next BCDC meeting. will be held on March 6th, 2008 at the Ferry Building in San Francisco. The following matters will be on the agenda.
(1) There will be a vote on amending BCDC’s regulations that deal with dredging permits. A public hearing is being held on that matter today.
(2) A public hearing and vote will be held on an application to undertake maintenance dredging at the San Francisco Marina Yacht Club. A briefing on the status of the studies being undertaken to determine whether it is feasible to provide a pathway for pedestrians and bicyclists on Richmond/San Rafael Bridge will be heard.
(3) Consider approving a contract for court reporter services to prepare minutes at Commission meetings.
(4) Finally, consider a report on the progress BCDC is making on carrying out its strategic plan.

If anyone has forgotten to provide our staff with reports on any written or oral ex parte communications, please submit them now. There were no ex parte communications reported.

6. Report of the Executive Director. Mr. Travis said that four weeks ago staff provided the Commission with Governor Schwarzenegger’s proposed BCDC budget for the fiscal year that begins in July. Along with other state agencies, BCDC had to develop a plan to accommodate the 10% reduction in the general funds support. For BCDC this amounted to $457,000, which equates to four staff positions in associate operating expenses.

Mr. Travis said that through its partnerships with other agencies and organizations staff expects to have enough funding to pay for three out of four of staff positions. This means we are going to have to dedicate these staff to carrying out the work that is called for in the grants and contracts, which may not always be the work that is highest priority in the Commission’s strategic plan. This in turn can result in some important projects being delayed. As for the fourth position, planning secretary, Joanne Leung has taken a job with the California Public Utilities Commission. Her position will not be filled. This step, in accommodation with the

redirection of staff to special funded activities, means BCDC can accommodate the budget cut without having to layoff staff. As difficult as this situation is BCDC does have the good fortune of having had its budget augmented by a million dollars in eleven staff positions last year. Without that augmentation, a 10% cut would have been truly devastating. Despite these cutbacks, a few staff members have been able to get well-deserved promotions. Jaime Michaels has been appointed principal permit analyst, filling the vacancy left by Andrea Gaut’s resignation. Also, Leslie Lacko has been promoted to Senior Planner Specialist to fill the vacancy created by Lindy Lowe’s promotion. Leslie will assume her duties when she returns from family leave in May. In addition, BCDC has added three unpaid interns to its staff. Casey Strong is working in the enforcement unit; Kinzie Kramer a working on climate change in the planning unit; and Darcy Vaughn is the new legal intern.

7. Commission Consideration of Administrative Matters. There were no administrative matters.

8. Public Hearing on Proposed amendment to the Commission’s Dredging Regulations. Ellen Sampson presented the following staff report:

Currently, BCDC regulations allow certain dredging and disposal projects to be authorized administratively (that is without a public hearing). Currently, this regulation limits the administratively authorized projects to a five-year period. The most important change that staff is proposing would extend the effectiveness of these permits from five years to ten years.

The types of dredging affected include, maintenance dredging and new, low volume dredging projects. She noted that sand mining projects would not be affected. The regulation accomplishes a couple of other tasks, one is to correct the disposal volumes at the Alcatraz disposal site to be in line with the Long Term Management Strategy for dredging projects, and another makes other minor and non-substantive changes.

Brenda Goeden was available to answer any questions about the dredging program. This item will be brought to the Commission for a vote at its next meeting; however, today public comments and questions will be heard. A staff report with recommendations will be brought to the Commission at its next meeting.

Chair Halsted invited any public members to speak.

Ellen Johnck, from the Bay Area Planning, thanked everyone for hearing the proposed amendments and offered her support for them. She called the Commissioners’ attention to amendment 106.2 Administrative Permit A which speaks to the Alcatraz Island disposal site and restricting the amount of material disposed there. She said she has been a part of LTMS since its inception in the 1980’s and noticed that the policy has not been reviewed by LTMS groups and agencies since the 1990’s. LTMS is on a vigorous aggressive mission to reduce disposal at Alcatraz to one million cubic yards by 2012. In the interim there is still a need to utilize Alcatraz under very strict regulatory regimes as far as the types of materials that should go there. She said that 400,000 cubic yards would be allowed between October 1st-April 30th and 300,000 cubic yards from May 1st – September 1st.

She said what is needed is flexibility in the time period that we call the open window, which is from June 1st – November 30th. She wants to take this information back to the LTMS agencies and ask them to trade out 100,000 cubic yards in order to provide flexibility that is needed during the open window.

George Lyons, a commercial real estate broker who specializes in the sale of marinas, said he believes that northern California has some of the worst marinas in the United States due to the strict regulatory requirements. The “mom and pop” businesses that have owned their marinas since 1940 or 1950 are overwhelmed by the dredging permit requirements and costs. They cannot afford to get higher rents because of the marinas condition. He recommended that a special provision be made to allow for a smaller entrepreneur type of dredging where the marina owner has more options. For example, something called a Dingo, which will dredge. This would give them the choice of putting the dredged substances up on top of the soil on their own levies, or dry it out and resell it, or recycle it. He believes this would be a benefit with the LTMS group.

Mr. Travis said he believes it is prudent to adopt the language that is proposed now rather than wait until LTMS decides whether to change its policy or not.

Commissioner Potter asked what the time frame is for LTMS’ consideration.

Ms. Goeden informed the commissioners that the LTMS program is made up of four agencies, which includes the BCDC, the Water Board, Army Corps of Engineers, and the EPA. She explained that there is a process of the environmental windows work group where it can go back to the stakeholders and discuss potential for changes to the LTMS program. The agencies would then be forced to consider whether the whole program should be changed. The time frame can be discussed at the next meeting in March, but in so far as when the change can take place, Ms. Goeden could only guess it might occur within the next six months.

Commissioner Carruthers reported that he attended the Annual Conference of the California Counsel of Land Trusts. In their legal session they described a case that relates to dredging and to permits from BCDC. The situation is that there are lands around the bay that are protected by conservation easements of various kinds and these are held by land trusts that typically don’t have a lot of money for the provisions of the easement.

He would like to be assured that as BCDC proceeds with its own permits for dredging activities that there are proposals to dispose of the spoils. He wants to be assured that BCDC would not be in some kind of violation of a conservation easement. BCDC must do what it can to support the standing of these land trusts in protecting the terms of their easements where there is the disposal of dredging spoils.

Ms. Goeden explained that the permits contain a clause that says disposal at an upland site has to be at an authorized site. Staff will do everything it can to address the concerns of Commissioner Carruthers.

Mr. Travis said that BCDC has a requirement that one cannot file a permit application without the property interest to carry out the project. In cases where material is taken outside of BCDC’s jurisdiction a title search is not done. BCDC does require that it be an authorized site but does not have the capability of doing a title search or providing enforcement outside of its jurisdiction when somebody is violating someone else’s property rights. Staff will do the best it can but there are limitations from a staff resource prospective, as well as a legal prospective.

Commissioner Potter asked why the permit time should be changed from five to ten years. Ms. Goeden said that the basic rationale was that the permit chief wanted the permits to match up with the Army Corps of Engineers’ and with the State Land Commission’s ten-year leases. They felt that coming back every five years for permits was a little onerous. She noted that BCDC has absolute approval over every episode of dredging that takes place in its

jurisdiction and there is always an opportunity to deny an episode. There are many opportunities to re-examine the issues involved in the dredging. In addition, should policies change, BCDC has the ability to amend the permit to update the policies and conditions of the permit. She believes that BCDC can do a ten-year permit and still have appropriate review and approval along the way.

Ms. Goeden addressed George Lyons comment regarding the mom and pop marinas. BCDC does provide the ability for them to dispose dredge material in another location if they have the space and if they do have the ability to dry it out and place it on levies.

MOTION: Commissioner Peskin moved, seconded by Commissioner Lai-Bitker to close the public hearing. Motion carried unanimously.
9. Consideration of 2007 Annual Report. The Commission will consider approving the text of its 2007 annual report. Mr. Travis explained that BCDC is required, by law, to briefly report to the Governor and the Legislature on its activities for the previous year. He asked the Commissioners to review and note any changes they might want included and asked for authorization to correct any grammatical errors before sending it out. Vice Chair Halsted entertained a motion to end questions from the commission.
MOTION: Commissioner Silva moved; seconded by Commissioner Dave Smith. The motion carried.
10. Briefing on the CALFED Bay-Delta Program. The Commission received a briefing from Joe Grindstaff, the Executive Director of the CALFED Bay-Delta Program.
Mr. Grindstaff said in the early 1990’s California faced the longest historical drought it had ever had. California began facing problems in the Delta during that time because the agencies barely communicated with one another and did not agree. CALFED was established in an effort to bring all the agencies together in order to work on the Delta issue. That effort worked. California Bay-Delta Authority was formed to oversee CALFED. Unfortunately, it has no authority or legal ability of enforcement. They simply have meetings. In addition, leadership changes have led to reduced commitment to CALFED.
We continue to have subsidence in the Delta. There are many parts of the Delta that are ten, fifteen, 20 feet below sea level and continuing to subside a couple of inches each year. We are continuing to see the sea level climbing. Our scientist are telling us that we must plan on the sea level climbing three to five feet over the next 100 years and combine that with the subsidence and that makes a big portion of the Delta unsustainable. We will be less able to export water from the Delta in the future. That is one of the conclusions that the Delta Vision Blue Ribbon Task Force came to.

If you look at what is expected to happen in the future, according to our climate change models, in the Delta and upstream, in the Sacramento Valley, it is inevitable that we will have a decreased ability to export water.

Since the CALFED program started, we have concluded that the risks are increasing and that the Delta has a huge potential risk. One original estimate stated that there is a two-thirds chance of catastrophic failure within 50 years; that has now been amended to within 30 years. It is an amazing statistic: catastrophic failure, meaning the permanent flooding of multiple islands. That has big implications for the whole system, including ecology and water exports.

One of the key things is that we operate the Delta as a lake and have really maintained it that way, and scientists are telling us that maintaining the Delta as a freshwater lake may not be appropriate. The fundamental conclusion that everyone has reached is that the system is not going to continue to work.

The Fish and Game Commission is having a hearing to talk about longfin smelt. It is likely that longfin smelt will be a candidate species, and ultimately will be listed as threatened or endangered. Judge Wanger said that the requirements of the Endangered Species Act have not been met and water diversions have had a major impact on Delta smelt.

DWR sent out their estimates of how much water they would have for people to use for exports, and that includes part of the Bay Area, Southern California, and the Central Valley. Their estimate was that the State Water Project would be reducing exports this year by 35%, providing 1.4 million acre-feet. They also estimated that without the Wanger decision, they would have provided two million acre-feet.

There are three key things that are occurring. First, CALFED is evaluating whether the Record of Decision objectives are being met by through-Delta Conveyance. Second, the Bay Delta Conservation Plan is developing a habitat conservation plan for the Delta for the purposes of getting “take” permits under the state and federal endangered species acts. “Taking” is killing fish. That plan, under state law, would actually put the species at risk on a recovery track while providing a stable regulatory environment for water exports by the state and federal water projects. The goal is to have that conservation plan by the end of this year. Ultimately, the focus is to have everything, including take permits, by the end of 2010.

Third, the Delta Vision Task Force is looking at the Delta from a broader perspective. CALFED tends to look at the Delta in narrow terms rather than looking at the whole system and how it interrelates. Most of the power lines from hydropower plants run through the Delta area; 40% of the natural gas of the state goes through the Delta; there are transportation links through the Delta, railroads, highways; and there are residents, who potentially have more risk than most of the residents in New Orleans.

The Delta Vision Task Force Committee made significant recommendations. The first one is that the water supply and ecosystem must have coequal values in the Delta. The second thing is that the water supply is limited and we will have to limit water exports and change the timing that the water is exported. Over the last 50 years we have exported more water out of the Delta during dry years than during wet years and normal years. We should let more water flow during dry years to protect the ecosystem.

The third thing was that we should look at whether we should build residential housing in some of these areas. There was a tremendous amount of discussion about that. The Task Force is moving ahead to develop a strategic plan and will address the issue of governance. Short-term actions were recommended and are underway. The conclusion was that what has been done in the past is not working and unless we make major changes we are going to continue to fail with hefty consequences for all of us and comprehensive solutions are needed.

There is a balance in nature and we must keep that in mind. Salmon and all the species that rely on the Delta are going to be affected. We have worked to restore the habitat on the Sacramento River. We need to finish taking out the dams in Battle Creek and deal with having appropriate flows on the Sacramento River.

U.C. Davis did a study and projected that over the next 25 years we will see a decrease in farmland acreage of about one million acres and water will need to be redirected for human consumption. However, California is poised to handle these changes better than other western and southwestern states.

Commissioner Carruthers asked if the Bay-Delta Conservation Plan (BDCP) will consider alternatives for water management. Mr. Grindstaff said that the best alternative is water export reduction but this is a highly debated issue. Commissioner Carruthers asked what the process is for making decisions and/or governance of the BDCP. Mr. Grindstaff said that the state and federal fish and wildlife agencies have to approve decisions after the EIR and the EIS have been completed. The governance decisions of the BDCP are made by department heads and department secretaries of the various agencies involved. Commissioner Carruthers asked if the legislature is involved. Mr. Grindstaff said it is not involved; however, the legislature and the people of California will have the opportunity to weigh in on this important matter.

Commissioner Nelson reiterated how our thinking about the Delta has changed dramatically over the last several years. The Delta and its communities are at real risk of catastrophic flooding. He feels a comprehensive long-term plan that addresses the water supply and all the issues that affect the Delta and the safety of its levees is needed. He said there is a lot of common ground among stakeholders in the Delta Vision process, but there is potential for real conflict if a water bond initiative short-circuits the process by authorizing construction of new dams and a peripheral canal.

Commissioner Tim Smith asked who is funding the BDCP and CALFED and at what levels. Mr. Grindstaff explained that funding for the BDCP comes from water contractors. The funding for CALFED from the federal government this year amounts to $75 million dollars which is to be spread in different areas of the program. It is important to note that in past years $500 million was received from the federal government. In addition to the federal funds CALFED will receive $220 million from the state this year.

Commissioner Carruthers said he is confused by the number of activities and bodies working on the Delta; what are the relationships between them? Mr. Grindstaff explained that CALFED is working to ensure that they are all in communication. Meetings are held to coordinate their different interests.

Mr. Travis mentioned that this is BCDC’s third briefing on the status of the Delta. Staff is doing its best to see that the Bay gets integrated to what happens with the Delta. The objective primarily is to ensure there is enough fresh water coming out of the Delta. BCDC staff tries to look at the Delta as an integrated environmental system but also understands it is two different political systems.

Jim McGrath said that sediment is a burgeoning problem in San Francisco Bay and asked if sediment supply is part of the considerations in the preparation of the plan. Mr. Grindstaff said that the system is sediment-starved and unfortunately this problem is not likely to change given the system we have today.

11. Consideration of Strategic Plan Status Report. Mr. Travis presented the monthly status report and stated that one of the objectives in the plan is to achieve the goal of public awareness of the Bay, the Suisun Marsh, and BCDC. The Plan calls on BCDC’s staff to recommend ways the Commission can support the distribution and promotion of the documentary video “Saving the Bay.” Staff has been working on this project for about five years. Last year the Commission approved a $50,000 grant to assist in underwriting the cost of the production.

Virtually all of the filming and editing is complete, and Robert Redford recorded the narration. The four-hour series will premiere in High Definition on public television stations later this year, and efforts to show it nationally are well on the way. Given the budget reductions BCDC is facing, it is quite unlikely it will be able to provide any more direct financial support for the production.

Commissioners can preview the documentary on the BCDC website and hear a direct plea from Robert Redford as to why they should consider helping underwrite this exciting project. Mr. Travis said he is also working closely with Ron Blatman, the executive producer, on the underwriting campaign. These continuing initiatives are the best way the Commission can support the completion, distribution, and promotion of the documentary at this time.

Mr. Travis pointed out changes in some of the deadlines in the strategic plan. He asked a motion to approve the changes.

MOTION: Commissioner Wagenknecht moved; seconded by Commissioner Lai-Bitker to approve the changes in deadlines. The motion carried unanimously.

Mr. Travis encouraged new Commissioners to attend the briefing which will be held on February 21. It is open to the public.

12. New Business. There was no new business.

13. Old Business. Commissioner Goldzband asked if there is any news on the deputy AG’s new baby. Deputy Attorney General Jacobs said that Alice Reynolds is on maternity leave (she had a baby girl) and he will be attending the BCDC Commission meetings until she returns.

14. Adjournment. Upon motion by Commissioner Bourgart, seconded by Commissioner Nelson, the meeting adjourned at 2:30 p.m.
Respectfully submitted,
Will Travis
Executive Director

Approved, with no corrections, at the San Francisco Bay Conservation and Development Commission Meeting of March 6, 2008

R. Sean Randolph, Chair