Minutes of June 19, 2008 Commission Meeting

  1. Call to Order. The meeting was called to order by Chair Randolph at the MetroCenter Auditorium, Oakland, California at 12:40 p.m.

  2. Roll Call. Present were Chair Sean Randolph, Vice Chair Halsted, Commissioners Baird Bates, Bourgart, Gioia, Gordon, Jordan Hallinan, Hicks, Kniss (represented by Alternate Carruthers), Lai-Bitker, Lundstrom (represented by Alternate Sanchez), McGlashan, Moy, Nelson, Peskin, Wagenknecht, and Wieckowski.

    Not Present were: Sonoma County (Brown), Department of Finance (Finn), Speaker of the Assembly (Gibbs), Governors Appointee’s (Goldzband), Association of Bay Area Governments (Maxwell), Regional Water Quality Control Board (McGrath), U.S. Environmental Protection Agency (D. Smith), Solano County (Silva), and State Lands Commission (Thayer).

  3. Public Comment Period. Richard Skaff, Executive Director of a Marin County non-profit called Designing Accessible Communities, said he is a retired City of San Francisco staff person. He was the Deputy Director of the Mayor’s Office on Disability. He is attending today’s meeting to speak on one of the items. There are particular items on the agenda where the public is not able to comment on. There are technical issues that he wanted to talk about during the discussion of the item regarding the City of Larkspur in Marin County’s public boat dock re-design and build. He also wanted to bring up another issue relative to a boat dock 15-20 feet away from the public dock which is owned and maintained by the Marin County Rowing Club. He said he has been interacting with BCDC on three projects, none of which are accessible to people with disabilities: the first is the Shelter Cove Office Complex which was approved by BCDC in the 1980’s; the last two projects, the Marin Rowing Club and the City of Larkspur docks was approved by BCDC approximately 5 years ago. Neither one was built, although they were required to be, to be accessible to people with disabilities. The public dock was built for public access to the Bay and he cannot use either dock.

    The second dock, owned by the non-profit organization and private club is used by many other people besides club members, including Redwood High School students that compete nationally and internationally in their rowing club competitions. He wanted to be able to speak during the discussion with the Larkspur project about this. He supports wholeheartedly the design now that they have agreed to make the modifications he proposed to the gangway and float.

    Mr. Skaff said he asked the City of Larkspur to include an agreement whereby they would agree to a three year period where they would collect funds to take care of the dredging need of the public dock. He has not seen any agreement to this and he is concerned that it will end up with an accessible dock system but once they get to the float people will not be able to use their small craft.

    He is also concerned that BCDC has not, at this point, taken any action on the dock next to the public dock (the rowing club’s dock). This public dock is completely inaccessible and based on federal and state civil rights and access codes and regulations must be accessible and should have been when it was approved by BCDC in the last 5-10 years.

    It is his hope that he might be allowed to speak during the portion of the meeting where the City of Larkspur project is discussed.

  4. Approval of Minutes of May 1, 2008 Meeting. Chair Randolph entertained a motion to adopt the minutes of May 1, 2008.

    MOTION: Commissioner Peskin moved, seconded by Commissioner Lai-Bitker to approve the May 1, 2008 minutes. The motion carried with two abstentions.

  5. Report of the Chair. Chair Randolph reported on the following items:

    a. Election Results. A number of current and former Commission members were involved in races in the June 3rd election. Commissioner member Jerry Hill won the Democratic primary for the 19th District of the California Assembly. Commissioner Valerie Brown was re-elected to the Sonoma County Board of Supervisors. Commissioner John Silva lost his race for re-election to the Solano County Board of Supervisors, and John’s alternate, Mike Reagan, will be in a runoff in November to retain his seat on the Board. Also, former Commissioner Barbara Kondylis was re-elected as a Solano County Supervisor. Former Commissioners Anna Eshoo, Zoe Lofgren, and Jackie Speier won the Democratic primaries in their bids to be re-elected to Congress. Assembly member Loni Hancock defeated former BCDC Commissioner Wilma Chan in the Democratic primary for the 9th District of the California State Senate. Finally, former Commissioner Nancy Nadel was re-elected to the Oakland City Council.

    b. Next BCDC Meeting.It will not be necessary to hold a Commission meeting on July 3rd. As a result of this cancellation, the next meeting will be in four weeks on July 17th. At that meeting, which will be held at the MetroCenter in Oakland, the following matters will be taken up:

(1) A vote on revising BCDC’s permit application fees. A public hearing on this matter is being held today.

(2) A public hearing and vote on an application to drill for natural gas in the Suisun Marsh.

(3) Two briefings will be heard; one from the Executive Officer of the Regional water Quality Control Board on the work of the board, and the second from Commissioner Joan Lundstrom who will update Commissioners on the work of the Harbor Safety Committee which she chairs.

(4) A report on the progress BCDC is making in carrying out its strategic plan will be considered.

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

  1. Report of the Executive Director. Mr. Travis noted that ABAG supplied everyone with a re-usable grocery bag as a way of reminding people that individually each of us can promote best practices and reduce greenhouse emissions. They calculated that everyone in the Bay Area used these re-usable bags 50 million gallons of crude oil would be saved.

    Mr. Travis provided the following report:

    a. Emergency Permit.On May 26, after consulting with Chair Randolph an emergency permit was issued to the Tesoro Petroleum Corporation to authorize emergency repairs to the company’s Avon wharf at its Golden Eagle Refinery in Martinez. The wharf had to be closed on May 14rh when it was struck by a tug. The permit allowed 30 steel pilings to be installed so the wharf could again be used by vessels transporting oil and other petroleum products to and from the refinery.

    Budget.Since the last BCDC meeting, Governor Schwarzenegger has released the May revision of his budget. At BCDC’s request, it includes authorization to expend $445,000 in federal Coastal Impact Assistance Program funds in the upcoming fiscal year to carry out the sea level rise adaptation planning and related regional sediment management work. This is the first installment of an award of $1.1 million in federal grant funds that can be spent by BCDC over the next four years. Both houses of the Legislature have approved including these funds in BCDC’s FY 08-09 budget.

    c. Pending Legislation. Assembly Bill 2094, Assembly member Mark DeSaulnier’s measure that BCDC is sponsoring in order to give BCDC the authority to address climate change in its planning and to become a voting member of the regional Joint Policy Committee, was passed by the Assembly on May 27th, approved by the Senate Natural Resources Committee on June 10th. It will be taken up next week on the June 25th by the Senate Local Government Committee.

    As was discussed at the last meeting, ABAG has decided to condition its support of AB 2094 on the bill being amended to require that at least a majority of BCDC’s representatives on the Joint Policy Committee be locally-elected officials. Last Friday, at ABAG’s request, the MTC Legislative Committee took up the issue of whether MTC should support ABAG’s position. It was explained that should this amendment be added, it would require BCDC to replace two of its current representatives on the Joint Policy Committee because five of BCDC’s seven representatives are not locally-elected officials. To help with this dilemma, Vice Chair Halsted and Commissioner Bates, who also serve on MTC, were able to get MTC to agree that this limitation on BCDC’s authority would not go into effect until the beginning of 2011.

    BCDC does not like this amendment because it believes there should be no limitations on BCDC’s authority to select its representatives to other organizations. ABAG does not like the amendment because they want the limitation to go into effect immediately. MTC does not like being drawn into a dispute between ABAG and BCDC. Thus, this amendment seems to meet the definition of a perfect political compromise: nobody likes it.

    Therefore, unless the Commission directs BCDC otherwise, staff will advise Assemblymember DeSaulnier that BCDC is willing to live with this compromise, which should ensure that the bill will be approved by the Senate Local Government Committee and moved on to the full Senate next week.

    In other action in the Legislature, Assembly Bill 2954, the measure to establish a new San Francisco Bay Restoration Authority that can raise and distribute funds for the restoration, enhancement, protection and enjoyment of Bay wetlands and wildlife habitats, was also passed
    by the Assembly and is now being considered in the Senate. Save the Bay, the sponsor of the bill, has declined to accept the amendment BCDC requested, which would require that two of the four members of the authority be appointed by BCDC. The measure continues to move ahead without BCDC’s formal support.

    d. Personnel. It was reported at last month’s meeting that Erin Bomkamp resigned from the permit staff and Max Delaney moved from the dredging program to permits to replace her. To replace Max, Carolynn Box is moving from the enforcement section to the dredging program. Because of the uncertain outlook about the state budget, Mr. Travis will wait until the final budget for next year is in place before deciding what to do about this vacancy in enforcement. There are three other full time staff working on enforcement cases so BCDC will still be able to find and prosecute the bad guys.

    Another unpaid intern has been added to BCDC staff. Nick Burt will be working three days a week this summer and then returning to Cal Poly San Luis Obispo. Nick will be helping staff build the GIS data base in order to be able to track every permit issued since 1965.

    e. Data Management. Along with all the other state agencies, BCDC is required to use an electronic accounting program called CalStars (California State Accounting and Reporting System). To fulfill BCDC’s legal obligations to use this system, in 2002 the Commission authorized a three-year contract in the amount of $31,500 so another state agency, the Teale Data Center, could provide BCDC with the access, support and equipment needed to use CalStars. When the Commission approved that contract, it also agreed that staff could continue to contract for these services in subsequent fiscal years after advising the Commission of any changes in the cost, duration or scope of the services. Under this authority, in 2005 staff extended the contract for another three years. The current contract expires at the end of this month and it will need to be renewed. The only changes in the agreement are that the cost has increased to $43,200 and the Teale Data Center has changed its name to the Department of Technology Services. Unless the Commission objects, Mr. Travis will continue this agreement for another three years.

    f. Climate Change. To achieve the strategic plan goal of developing a regional strategy to deal with climate change, the plan includes an objective calling on BCDC staff to provide a report by the end of the year on how sea level rise will affect natural habitat preservation and protection. Rather than produce a staff report that will receive limited circulation, the decision was made to partner with the magazine “Bay Nature”, which will publish a special edition focusing on the impacts of climate change on the Bay Area’s natural resources. BCDC will join with MTC, the Bay Area Air Quality Management District, PG&E, and others in helping underwrite the cost of this special edition. Staff will provide technical information and editorial assistance. BCDC’s financial contribution will be a maximum of $6,000, which can be absorbed in the current fiscal year’s budget.

    In another initiative dealing with climate change, BCDC is partnering with Arcadis, a Dutch/American consulting firm, and Wageningen University in Holland in a bid to secure financial assistance from the Dutch government to assess the impacts of sea level rise in the Bay Area and in Holland and to develop strategies to enhance shoreline resiliency that might have common applicability both here and in The Netherlands. If funding for this is approved, an international symposium will be hosted early next year.

    g. Incompatible Activities. Mr. Travis called attention to a memo sent to the Commissioners last Friday describing some legal restrictions that apply to activities Commissioners can engage in dealing with BCDC after they are no longer a member of the Commission. Tim Eichenberg can respond to any questions. There were no questions from Commissioners.

  2. Commission Consideration of Administrative Matters. On June 6, 2008, a listing of the administrative matters was sent to the Commissioners. Bob Batha is available to respond to any questions. One of the items was Project M0820. A letter was received from the Audubon Society and in response to that letter staff will hold off issuing that permit in order to study the issue further.

    Commissioner McGlashan asked Mr. Travis to reach out to the Audubon Tiburon Center on this issue as well.

    Vice Chair Halsted thanked Mr. Travis for pursuing BCDC’s interest for Assembly Bill 2094 which is likely to be compromised. Mr. Travis advocated ably for BCDC’s position and came up with what is a good compromise. Chair Randolph thanked Mr. Travis, as well as those commissioners who participated in these discussions.

    Commissioner Gioia suggested that he call his former colleague, Assemblymember DeSaulnier, not as a representative of BCDC, and ask him to maintain his original language in the bill, which is that BCDC appointees can be whomever they choose. Commissioner Bates said he believes that the compromise reached is a good one. A two year period is ample time to transition in a way that makes sense.

    Commissioner Carruthers asked what will become of the concerns that Mr. Skaff raised. Mr. Eichenberg, Chief Counsel for BCDC, said staff is conducting research regarding BCDC’s responsibilities under the ADA and state law that apply to a permitting agency. There is only one administrative permit before the Commissioners today and he will need to look at what can be done for permits that are not presently before the Commission to address and review. Staff is open to speaking to Mr. Skaff at any time.

    Mr. Travis said on the matter before the Commission on the administrative listing, this project was pulled once before. The project has been re-designed so that it is fully accessible. Although there will be some periods of time where nobody will be able to launch craft from it, dredging can not be required. Because everyone is treated equally staff believes that it is appropriate to move ahead and issue the permit to Larkspur at this point.

    MOTION: Commissioner Carruthers moved, seconded by Commissioner Sanchez to hold the Larkspur item in order to have further discussion with staff relative to whether or not the dock is accessible.

    Mr. Travis said if there is a majority vote to deny the permit then staff will deny it and take it up again. He reminded the Commissioners that this project was pulled once before and it has been re-designed and is fully accessible to all. When it is not usable because the area is a mud flat then nobody can use it. The question is should BCDC be requiring the City to dredge the area as part of this permit.

    Mr. Travis said staff’s recommendation on the motion is to vote “no”.

    Commissioner Baird said it seems as though Mr. Travis does not see this as an ADA issue but simply a matter of overall public access to a public facility that is being constructed. Mr. Travis said even at low tide it is accessible but is not usable to launch a craft.

    Commissioner McGlashan asked legal counsel to clarify what the Commission is doing with this motion. Are they voting to deny or are they voting to take it off the agenda and reconsider it? Counsel Jacobs said it is for the maker of the motion to specify what is to be done, but it is his understanding that normal practice would be to take it off of the administrative listing and bring it up in some other fashion.

  3. Commissioner Carruthers said this was his intent but Mr. Travis said it would have to be denied in order to do this. Mr. Travis said this is what is done with something that the Commission does not want handled on the administrative listing. Typically it is taken off the administrative listing and then taken up as a major permit at a later meeting. This cannot be postponed because the Commission will not have a meeting before the 90th day, therefore the only way to dispose of it is to deny the permit.

    Commissioner Baird asked if there has ever been an instance where an applicant has been required to ensure that there was water access at all tidal levels for 365 days a year. Mr. Travis said he cannot recall this has ever occurred. He also noted that the objectives that Mr. Skaff is articulating is something that staff feels strongly about. Staff tries to ensure that everything that BCDC does is accessible to everyone.


    Commissioner Gioia said he is not sure the Commission wants to get into the situation of dredging so there is 24-hour high tide access to all public access along the Bay.

    Mr. Skaff said he is not opposed to the approval of the permit. He would support approval of the permit with one suggestion, and that is, that BCDC asks the City of Larkspur (within a set period of time) they find financial support to be able to do the dredging. He reminded the Commission that they have two public access facilities next to each other. He realizes that BCDC is looking into the legal issues relative to the Rowing Club, but both were built without any access. He has never suggested 24 hours, 7 days a week, 100 percent access to every waterway point the public can get to. What he is suggesting is there is a need at a public access dock to have a reasonable level of access. What he was recommending is that this body should look into the possibility of adding a sentence that within 3-5 years the City of Larkspur will include funding to support dredging in front of that boat dock.

    Chair Randolph said perhaps the vote could be made with the suggestion, not a requirement but suggestion, that Larkspur investigate this matter.

    Commissioner Sanchez said he is not even prepared to do that because he does not know enough about whether this is the right thing to do. There should be follow-up on this issue and staff can then report back to the Commission. He does not want to see this permit held up.

    MOTION WITHDRAWN: Commissioner Carruthers said if the second agrees, he would withdraw the motion. Commissioner Sanchez agreed to withdraw his second.

  4. Briefing on the Science of Climate Change. Chair Randolph introduced Dr. Andrew Gunther who provided the following briefing on the current scientific research on global climate change:

    Scientists are now saying that without an immediate and sustained effort to change the way we generate and use energy and control deforestation, we will be leaving our children a world in ecological upheaval. We must begin to take action today.

    Because of past emissions; the climate will change regardless of what we do. Indeed, in the Bay Area we will see stronger storms and a rising sea contributing to more coastal flooding and coastal erosion risk.

    The Greenhouse effect: The earth gets almost all of its energy from the sun. The sun’s rays pass through the atmosphere where they strike the planet and warm it up. The warm planet radiates heat in the form of infrared radiation. There is a layer of heat trapping gasses in the atmosphere, the most famous of which is carbon dioxide and that layer absorbs some of the outgoing radiation and re-radiates it back to the surface of the planet

    Over the past 200 years, humans have been burning fossil fuels, coal, oil, and natural gas, and so adding large amounts of methane and carbon dioxide to the atmosphere. These additions to the atmosphere have had the affect of thickening the layer of heat-trapping gasses and is what is causing the climate to change.

    In 1896, the theory of global warming was published. In the 1950’s, the first accurate measurements of carbon dioxide in the atmosphere was made. The baseline was going up, which meant carbon dioxide was staying in the atmosphere. Alarm bells went off in the scientific community, but nothing was done about it.

    Predictions made by scientists based on the theory of global warming in past decades are proving to be true. One of those predictions is that the earth’s glaciers will disappear and that is what is happening. Glaciers are disappearing all over the world, including the great Himalayan ice cap which provides water to the major rivers of Asia.

    All of the independent measures are telling us that the earth is heating up like we haven’t seen in the last 1,000 years. A scientific team was put together to go to Antarctica where the ice cap is 10,000 feet thick and they can measure global warming over the last 650,000 years.

    Carbon dioxide concentrations have varied over the last 650,000 years and in January the data set was extended back to 800,000 years. Today, carbon dioxide is way above anything that has been seen in 800,000 years on the planet and they are going up 200 times faster than at any other time in this historical record.

    One of the predictions made by the theory of global warming is that we will see more extreme weather events, such as the heat waves that hit Europe in 2003. As the ocean warms up, more water enters the atmosphere and when that condenses it creates heat which drives major storms. There is much evidence to suggest that hurricanes, typhoons, and cyclones are getting stronger because of rising sea surface temperatures.

    Winston Churchill said, “ ... we are entering a period of consequences.” After Hurricane Katrina, Hurricane Rita struck the United States. These two storms together destroyed over 200,000 homes and generated climate refugees. In 2006 Typhoon Saomai struck China. This was the largest storm to strike China in the last 50 years and did tremendous amounts of damage. Hurricane Dean struck Mexico in 2007 which was the third strongest hurricane ever to make land fall.

    Flooding is up all across the world. Another prediction from the theory of global warming is that while there will be downpours, the distribution of rainfall will change across the planet. While some places are experiencing downpours other places are experiencing drought. This is occurring now.

    Next year, for the first time, the United States National Intelligence estimate will include climate change as a factor to be considered in their report to the President and Congress. Last year, a report was produced expressing concern with the mass migration of people and the resulting conflict that could be generated. The United Nations High Commissioner on Refugees recently estimated that by 2050 there will be somewhere between 250 million and 1 billion climate refugees on the planet.

    Australia is in the grips of a serious drought. For only the second time since colonization, Australia has become a net importer of grain when it used to be a net exporter of grain. This change has affected the supply and demand of grain on the world market and is one of the factors contributing to the change in food prices. This is a small highlight of how climate change can influence the food market.

                     Lake Mead and Lake Powell are dropping continuously. If water use does not change, there is a 50 percent chance that Lake Mead will be dry by 2021; a 10 percent change that Lake Mead will be dry by 2017.

    Scientists knew, that when they were making their predictions, that one of the first places that climate changes would show is in the Arctic. In 2002, the Ward Hunt Ice Shelf broke in half. These kinds of dynamic changes in large features of ice have scientists very concerned because we do not yet have the ability to predict them. It was predicted that permafrost would start to melt in the Arctic and that is happening. The Arctic ice cap itself is getting thinner. During the summer the Arctic ice cap reflects huge quantities of energy away from the planet. When you substitute water for ice, water absorbs 80 percent of the incoming solar radiation, capturing the heat. So the Arctic is going to heat up. The ice cap is the Northern Hemisphere’s air conditioner and we are turning it off.

    When this happens, not only do we get changes in circulation patterns and changes in our climate, but it is vital to recognize that the northern soils contain millennia of dead plant matter and animal remains, and because it has been so cold those remains have not rotted. They are still frozen. When things rot they release carbon dioxide or, without air, they release methane. Therefore, we will get more carbon dioxide released which means it is going to warm up; we will get more melting, more rotting, and more carbon dioxide released.

    The change in climate is altering the distribution of all sorts of living creatures on the planet.

    Forest fires have become larger and more frequent; another predicted outcome of climate change.

    In addition to seeing changes in the Arctic we are seeing changes in the Antarctic as well. Part of the Wilkins ice shelf collapsed. When the ice shelves go, it is easier for the land ice to move into the ocean which contributes to sea level rise.

    BCDC’s public mission summarized in three words is “Save the Bay.” In coming decades the mission will be “Save Us From the Bay.”

    The question to consider is not how high is sea level going to get, but how fast is it going to go up. The Intergovernmental Panel on Climate Change’s recent report projects that in 2100, sea level will go up somewhere between 12 and 28 inches. However, there is a footnote that states changes in ice flow are excluded. These changes in ice flow are excluded not because we don’t think they’re going to happen; they are excluded because we don’t know how to include them in models to make predictions.

    We have technology that can do much to address the problem, at least in the first half of the century. One of the most important is energy efficiency both electrical and other end uses. Californians have engaged in an experiment that shows how easy this is to do, through energy conservation in the building codes and because policies have been adopted to decouple utility revenue from sales of energy. More and more Californians are looking to purchase hybrid automobiles and to drive less. While per capita energy use has risen n the U.S., California has remained flat.

    Wind farms are taking off and in 2007 30 percent of electricity generation was wind in the United States. Solar is also being used instead of natural gas.

    The question is not whether we can do it; the question is whether we will do it. In 1862, Abraham Lincoln said to the nation: “The occasion is piled high with difficulty and so we must rise with the occasion. As our case is new we must think anew, we must act anew, we must disenthrall ourselves and then we will save our country.” We are in the thralls of an energy system based on fossil fuels but it does not have to be that way and we do not have a lot of time.

    Dr. Gunther asked the Commissioners, as political leaders, and as leaders in their communities to communicate with their constituents about the importance of this issue. If we do not make sacrifices now the nature of the sacrifices our children will have to make will be remarkable.

    Climate change is not just an inconvenient truth, it is a moral challenge and the way we respond to this challenge is going to be the legacy of our generation. Are we going to be revered as the most visionary or cursed as the most selfish? Are we going to beg for our children’s forgiveness when they say, “How could you do so little when you knew so much?” or are they going to embrace us and say “Thank heaven you took the action when you did because otherwise things would be a lot worse than they are now!”

    Mr. Nobles asked Dr. Gunther to speak about methane that is stored both in ocean bottoms and in soils and the release of methane into the atmosphere as the planet warms up. Dr. Gunther said methane can come out of soils, and in fact it is now being measured coming out of lake bottoms.

    It also can be captured in physical structures called “clathrates” in the deep ocean. Methane, as a greenhouse gas is about 20 times as powerful as carbon dioxide.

    Commissioner Sanchez said he heard Dr. Gunther said that we only need to spend 1 percent of global domestic product to address this problem and asked how much this would be and what portion of that 1 percent is allocated to the United States. Dr. Gunther said he does not have the present value of the global domestic product but the Stern Report talked about 1 percent as a target. There will have to be some transfer of capital from the developed world to the developing world as the decarbonization of the global economy occurs.

    Even though China is the largest current emitter of carbon dioxide, only 8 percent of the human caused carbon dioxide in the atmosphere at present has come from China. He does not believe we can pressure the Chinese to take action until we take action ourselves.

    Commissioner Carruthers asked Dr. Gunther if he feels the cap in trade is an effective way of dealing with controlling carbon dioxide and other gasses. Dr. Gunther said a cap, if it is a solid enforceable cap, will in essence create a price on carbon. His personal preference is to try carbon taxes and initiate a market of tradable permits. He believes it is important to let people know that carbon will be priced but that it will not start for three years and in this way they will not bear immediate and painful costs.

    The key question is whether to generate the initial permits by handing them out to people who need them up to the cap, or should they be auctioned off.

  5. Briefing on Climate Change by Attorney General’s Office. Chair Randolph said the Commission will receive a briefing from Clifford Rechtschaffen, Special Assistant Attorney General, on the legal strategies being pursued by the California Attorney General’s Office to address climate change through the Clean Air Act, CAFÉ and energy standards, the California Environmental Quality Act, and other state and local actions.

    Mr. Rechtschaffen provided the following presentation:

    The truly ironic thing about climate change action in the United States is that we have the ultimate global problem with no national action. All of the momentum and action in this country has come from the state, regional, local, and grassroots level.

    The federal government has finally belatedly acknowledged that climate change is real and is caused by human activities, but they still have not done anything about it.        

    At the state level, the Attorney General’s office has been trying to do as much as possible within its authority. They have been working with other states in regional initiatives and they have been trying to exhort and encourage localities to do as much as they can.

    Some of the activities that the Attorney General’s Office has been involved in include defending our motor vehicle regulations, activities under the Clean Air Act, public nuisance litigation, litigation dealing with fuel economy standards, and energy efficiency.

    California adopted in 2002 the nation’s first greenhouse gas automobile emissions standards. California has over 32 million cars; 5 percent of the cars in the world are in the State of California.

    The Federal Clean Air Act authorizes California to set more stringent standards for automobile emissions, which require a waiver from the federal government. California has applied for waivers 50 times over the past 35 years and in every case EPA has granted a waiver. However, in this case after two years of deliberating, EPA denied the waiver. EPA’s own staff agreed with California’s application and strongly recommended that EPA grant the waiver. This denial is subject to challenge.

    A petition has been filed with EPA stipulating they are obligated (after the decision in Massachusetts versus EPA) to also regulate greenhouse gases from aircraft, ocean going vessels, and non-road vehicles.

    In addition, two public nuisance actions have been filed. In one case, a suit was made against the five largest power producers in the country who are collectively responsible for 10 percent of the nation’s greenhouse emissions. In another case, the six largest automobile makers were sued, who are collectively responsible for approximately 20 percent of greenhouse emissions in the United States. Both of these cases were dismissed by the Court stipulating that this is a political question that is not suitable for resolution by the judicial branch. These cases are currently on appeal.

    In 2005, the federal government issued new corporate fuel economy standards that mandated a paltry one mile per gallon increase. The Attorney General’s office successfully challenged those standards for both violating the Energy Policy and Conservation Act as well as the National Environmental Policy Act. Congress has since overtaken this. In the Energy Act in 2005 it mandated that fuel economy standards be increased to 35 miles per gallon by 2020.

    The federal government has the authority to set standards for many appliances and they are required to periodically update standards. The Department of Energy has a long history of missing deadlines and issuing weak standards. Along with a lot of other states, California filed a number of challenges and there are a number of pending lawsuits.

    In California, there are more climate dependent species than anywhere in the rest of the country.

    The California Environmental Quality Act is particularly important in the context of global warming because in California 40 percent of the greenhouse emissions come from transportation. You can’t get at the problem of dealing with greenhouse gas emissions unless you deal with land use policies. Last summer the legislature made it clear that greenhouse gases are the type of impact that CEQA requires to be analyzed.

    Recently a case involving a refinery expansion in Contra Costa County (Conoco Phillips) was settled where they agreed to pay $10 million to mitigate their impacts and perform audits; $7.5 million will go to the Bay Area Air Quality Management District. Other cases have been settled as well.

    The Attorney General’s office has been trying to think creatively and use its authority as expansively as possible to come up with every possible legal tool to deal with this unprecedented problem.

    Commissioner Carruthers said it sounded like Mr. Rechtschaffen said that when some aspect of a proposed project requires CEQA review the agency is required to include consideration of climate change impacts on the project. Mr. Rechtschaffen said this is a correct statement. Commissioner Carruthers said he is impressed.

    Commissioner Gioia mentioned that the Air District recently imposed a fee on carbon emissions on stationery sources in the Bay Area and if the refineries sue, the Attorney General’s office will be asked to help on this front.

    Chair Randolph asked if the requirements being placed on cities under CEQA have a legal link to AB32. Mr. Rechtschaffen said AB32 is a helpful backdrop and informs the CEQA analysis.

    The Attorney General’s office website has a detailed list of potential mitigation measures that cities can consider. Just today, the Governor’s office of Planning and Research issued a technical advisory bulletin about providing some guidance for localities to perform CEQA analysis. In addition, the Bay Area Air Quality District is considering adopting threshold of significance that will help local agencies.

    Commissioner Bourgart asked Mr. Rechtschaffen to comment on cap and trade versus a carbon tax system to deal with greenhouse gasses. Mr. Rechtschaffen said he would offer his personal opinion. He believes the debate is over and there will be a cap and trade provision in AB32. He believes there is less likelihood at the federal level that a carbon tax would be entertained. He hopes that lessons will be learned from the past in not over allocating the emissions and requiring some to be auctioned while having careful enforcement and monitoring provisions.

  6. Public Hearing and Vote on Permit Application No. 5-07 for the Preserve at Redwood Shores, Redwood City, San Mateo County. Chair Randolph said Item 10 is a public hearing and a vote on an application to build 158 houses, an elementary school and a neighborhood park, as well as to restore wetlands in the Redwood Shores community of Redwood City.

    Kerri Davis provided the following background information:

    Permit Application No. 5-07 is for the Preserve at Redwood Shores. This is a mixed use development of approximately 158 townhomes, a school, and approximately a 92 acre wetland restoration and mitigation bank proposal at Redwood Shores in the City of Redwood City, County of San Mateo.

    Staff believes that the project raises five issues, with the primary issue being: (1) whether the proposed public access improvements are the maximum feasible consistent with the project; (2) whether the fill for the culvert is consistent with the McAteer Petris Act and San Francisco Bay Plan Policies regarding fill; (3) whether the proposed mitigation and establishment of a mitigation bank on-site is consistent with the Commission’s mitigation policies; (4) whether the proposed project is consistent with the Bay Plan’s Waterfront Park/Beach Priorities Designation for the site; (5) whether the proposed project has been designed appropriately to accommodate an expected sea level rise.

    As noted in the staff’s summary and recommendation work in the Commission’s jurisdiction includes constructing a small portion of a 2.3 acre public park, installing landscaping, constructing a portion of several private residential porches, breaching the existing

    perimeter levee by removing approximately 800 cubic yards of material, lowering the existing perimeter levee height by removing approximately 10,000-15,000 cubic yards of material and re-using that material on-site, and installing a 54-inch diameter pipe to improve tidal circulation in the restored tidal marsh.

    The applicant plans to ultimately donate the restored tidal marsh to U.S. Fish and Wildlife Service, Don Edwards National Wildlife Refuge system. The existing trail that would be re-located as a part of the project was part of an alternative inland public access trail system that the Commission required in a previous BCDC Permit No. 6-94 with Redwood City.

    That previously existed on the perimeter levee, an alternative inland public access route was required. It ran adjacent to areas that were open space so it provided an open space experience in lieu of having the access on the exterior perimeter levee trail along area H.

    Mr. Max Keech of Keech Properties, LLC was introduced. Mr. Keech presented the Preserve at Redwood Shores. The project being proposed has four main components: the center is a 90-acre full tidal wetlands restoration, a residential development of 10 acres and 131 homes, another 25 homes on 2 acres, a 7-acre elementary school, and a 3-acre neighborhood park.

    The restoration effort includes four main items. One would be to replace the existing exterior levee around area H with a new interior levee that would immediately adjoin the residential and school component of the project. Keech Property will own, maintain, and monitor the wetlands for a period of 5 years and at the completion of this period it would be deeded to the Don Edwards Wildlife Refuge together with an endowment for the long-term management of that property.

    At the end of this project, 80 percent of the property will be dedicated to the restored wetlands and the remaining 20 percent will be occupied by the school, the townhomes, and the park.

    The community put forth a bond measure to raise $25 million to build a second school to relieve what was seen to be as severe overcrowding. The school that Keech Properties is developing will accommodate a Kindergarten through fifth grade school with a capacity of 400-450 child capacity, with a fall 2009 opening.

    Regarding public access, Keech Properties will be replacing the exterior levee to form the new Bay Trail System up against the tidal marshes. (A public access plan and Diagram slide was shown.)

    The neighborhood park will have a 30-space parking lot. The park will serve as a traditional neighborhood park, a trailhead for the trail system, and the playground for the school.

    Mr. Keech said he has reviewed the staff report and finds it to be acceptable with the conditions and asked for the Commission’s approval.

    Chair Randolph opened the public hearing and reminded speakers that they have 3 minutes to speak.

    Ralph Nobles, a resident of Redwood City and member of both the Friends of Redwood City and the Open Space Vote Alliance said the purpose of this group is to amend the city charter to require that any disposition, sale, or destruction of public parklands will require approval by the voters of Redwood City.

    He said he personally has had an interest in Area H and the Friends of Redwood City is not opposed to Mr. Keech’s application.

    Mr. Nobles provided some history and background of Area H. Mr. Nobles said his interest is to make sure that all the conditions of Mr. Keech’s project will assure that the clapper rail habitat is preserved and that there is sufficient funding to do the restoration.

    MOTION: Commissioner Bates moved; seconded by Commissioner Halsted to close the public meeting. The motion carried unanimously.

    Commissioner Baird asked if BCDC has salt pond jurisdiction over this parcel. It was clarified that BCDC does not have jurisdiction over this parcel.

    Commissioner Baird asked about the status of the Corps permit and whether the Fish and Wildlife Services reached a conclusion about any potential endangered species. Ms. Davis said the Army Corps of Engineers and the Fish and Wildlife Service are still working on their biological opinion. She expects that it should be received sometime in July or August. She spoke with the biologist who indicated she would be sending a letter stating that they agreed with Mr. Keech’s public access plan as proposed to BCDC and they don’t expect to make any changes to the public access.

    Commissioner said he wanted to be sure that given the limited jurisdiction, that it is appropriate for BCDC to move forward without waiting for the issues to be resolved by Fish and Wildlife. Ms. Davis said the project is being evaluated by all the agencies and the applicant is providing mitigation to offset any impacts from the project for the building of the school and the townhomes. Mr. Batha said BCDC’s existing polices require that BCDC consult with the Department of Fish and Game and U.S. Fish and Wildlife Service to evaluate species impact. As a result of the last discussions with the Bay Planning Coalition, it was recognized that the existing policies did not require BCDC to wait for the biological opinion before it acted upon an application.

    Commissioner Wagenknecht asked if the Fish and Wildlife Service concludes in their biological evaluation that the clapper rail and the salt marsh harvest mouse are not adversely impacted and their habitat is improved, changing the biological opinion that they had in 1990, what would be the requirement of BCDC in order to maximize public access. Ms. Davis said her understanding is that this is a separate biological opinion for the same area; the first one stands for that particular removal of access. From discussion with Fish and Wildlife they were not in favor of having access on the outside perimeter levee.

    Commissioner Wagenknecht said he would like to know what the trigger would be if after the restoration is completed in 5 years and the biological information is received, will it come back to BCDC or will the decision be made today. Ms. Davis said the trigger would be if those species were downgraded to no longer being threatened or endangered then they would not be as seriously impacted by public access.

    Mr. Batha said the permit that the Commission issued for the adjoining parcels, the 1.2 miles of exterior levee, required that if either the clapper rail or the salt marsh harvest mouse did become de-listed that the access on the parameter levee could become available again to the public. What is happening with this application for this segment of the public access is that the exterior levee is going to be permanently altered and lowered so there would no longer be opportunity to have access around Area H on the existing perimeter levee. This development is replacing that exterior levee with a new levee protecting the townhomes and the school.

    Commissioner Hicks asked for the details of how the property would be transferred to the U.S. Fish and Wildlife Service Don Edwards National Wildlife Refuge. She also asked how future maintenance of that property would be funded once it is transferred to the Fish and Wildlife Service. Mr. Keech said prior to the start of construction, which will occur once the biological opinion and the Corps permit are issued, there will be an irrevocable easement that guarantees it to the Fish and Wildlife Service. They don’t actually take ownership until after the five-year period and certain success criterion have been met. It will then be deeded over to the Fish and Wildlife Service with what is called a non-wasting endowment.

    Commissioner Hicks asked if the money is actually going to the refuge itself or to another group because there are federal regulations that prohibit accepting monies from outside sources. Mr. Keech said it will go to a third-party holder, the World Heritage Wildlife Foundation, and then they provide a quarterly or annual amount to Fish and Wildlife Service. The Fish and Wildlife Service are interested in having the property provided there is a tidal restoration.

    Ms. Davis presented the staff recommendation. The staff recommends that the Commission approve BCDC Permit Application No. 5-07 application of Keech-Properties to develop The Preserve at Redwood Shores, which, as conditioned, would result in the following on a 114 acre parcel of which only 1.5 acres are within the Commission’s jurisdiction, adjacent to Belmont Slough in the City of Redwood City: creating a mitigation bank by restoring a variety of tidal wetland habitats on approximately 92 acres; constructing an elementary school on approximately 7 acres; constructing 158 townhomes; replacing approximately 1,700 feet of existing required public access with a 1,700 foot combined sidewalk, bike path along Shearwater Parkway; approximately 2,400 feet of new public access trail on top of the new levee; a 2.3 acre neighborhood park; and expanding an existing public access parking lot to accommodate approximately 25-30 vehicles; and the protection of natural resources and water quality during construction and maintenance of the restoration project.

    The staff further recommends and includes a number of conditions which include a few public access conditions, a permanent guarantee of the public access, a recordation of a public access instrument, a maintenance condition that deals with sea level rise which requires the permittee shall be responsible for repairs to any public access areas or improvements that are damaged by future storms and/or flooding, including raising land elevations or designing public access features to protect and ensure the usability of public access areas and improvements where appropriate; a mitigation bank agreement with the Commission should the permittee desire to sell credits in the mitigation bank to protect proponents needing mitigation to satisfy the Commission’s mitigation requirements the permittee shall establish an MOU agreement with the Commission.

    Another condition that requires prior to commencing any grating or construction work on the project, the permittee shall provide the Commission staff with a copy of the Fish and Wildlife Services’ Biological Opinion, (BO) and if the BO requires a reduction in the size of the required public access area or a significant relocation or modification to the public access required by this permit as determined by or on behalf the Commission, no work may commence until the permittee obtains an amendment to this authorization. Any such amendment shall not result in any reduction in the size or quality of the public access area.

    A requirement of BCDC Permit No. 6-94 permit amendment with the City of Redwood City, with the issuance of this permit the permittee shall coordinate with the City of Redwood City to have the City amend their BCDC Permit No. 6-94 by July 1, 2009 to reflect the changes to the alternative inland public access authorized and required herein.

    Another protection of special status animal species condition is the permittee shall take all precautions to avoid adverse impacts to the California Clapper Rail and Salt Marsh Harvest Mouse. The permittee shall employ the mitigation measures outlined in its permit application and subsequent submittals and the pending U.S. Fish and Wildlife Service Biological Opinion for formal consultation under Section 7 of the Endangered Species Act with the Army Corps of Engineers. Ms. Davis pointed out an errata sheet that outlined some minor changes to the recommendation, particularly there were some minor changes to the area and dimensions of the public access as provided on the project site.

    MOTION: Commissioner Wieckowski moved; seconded by Commissioner Wagenknecht to approve the staff’s recommendation for BCDC Permit Application No. 5-07 as conditioned.

    VOTE: The motion carried with a roll call vote of 16-0-0 with Commissioners Baird, Bates, Bourgart, Gioia, Jordan Hallinan, Carruthers, Lai-Bitker, Sanchez, McGlashan, Moy, Nelson, Peskin, Wagenknecht, Wieckowski, Halsted, and Chair Randolph voting “YES”, no “NO” votes and no abstentions.

  7. Public Hearing on Proposed Amendments to the Commission’s Permit Application Fees. Chair Randolph explained that this item is a public hearing and proposal to revise BCDC’s permit fees to comply with directions from the Legislature on increasing revenues and to achieve an agreement that BCDC reached to the regulated community to make its permit fee schedule more equitable.

    Chair Randolph asked for a motion to adjourn into Committee in case a quorum is lost.

    MOTION: Commissioner Carruthers moved; seconded by Commissioner Nelson to adjourn into Committee. The motion carried.

    Ms. Ellen Sampson provided the following staff report:

    Today the Commission will have a public hearing on the proposed revisions to the application fees and a vote will be made at the next meeting before which a staff report will be sent out that responds to any comments received. One comment letter has been received from the Bay Planning Coalition requesting additional time to provide additional comments. Staff is in support of this request.

    A staff report was sent to Commissioners on June 6 explaining the proposed changes. In summary the Legislature has instructed BCDC to generate fees equal to 20 percent of its total regulatory program costs. In setting the fees, staff has kept in mind that the smallest least costly projects should have the lowest fee and it should be in proportion to that small project.

    The second principle is the larger more expensive projects tend to raise more difficult issues of law and policy, calling for more staff time and resources to analyze, address, and resolve those issues.

    Therefore, staff has proposed smaller fixed fees for the smaller projects and an array of fees would apply to the larger projects based on the total project cost and the fee would be a percentage of the total project cost.

    To generate the target 20 percent revenue staff surveyed the permit history over the last 2-5 years and based on that they can estimate how many projects are expected on average over the coming years. The proposed fees were applied to the expected numbers of projects. A formula was built in to recalculate the fees every five years.

    There were no public comments.

    MOTION: Commissioner Carruthers moved; seconded by Commissioner Nelson to close the public hearing today and leave the comment period open until close of business June 24, 2008. The motion carried.

    Commissioner Carruthers asked what would happen if BCDC does not meet the 20 percent goal each year. Mr. Travis said Legislature would ask BCDC to take another look at this. There is no penalty.

  8. Commission Consideration and Possible Vote to Endorse the Ocean and Coastal Community Call for Action. Chair Randolph noted that Item #12 is a public hearing and vote on whether to endorse on initiative advanced by Commissioner Baird, who serves as Chair of the Coastal States Organization, on a national strategy dealing with ocean and coastal management.

    Ms. Caitlin Sweeney provided the following background:

    The Coastal States Organization (CSO) was established in 1970. It represents the governors of the nations 35 coastal states, commonwealths and territories on legislative and policy issues relating to the sound management of coastal and ocean resources.

    Lately, in an effort to advocate for some large scale needs for ocean and resource management, the CSO has recently developed an ocean and coastal community Call for Action. Commissioner Baird, as the Assistant Secretary for Ocean and Coastal Policy for the California Resources Agency currently serves as Chair of the Executive Committee of CSO. In his role as Chair he initiated the development of the Call for Action.

    Commissioner Baird said this item is for the Commission to consider the endorsement of a national Call for Action to protect the nation’s oceans and coasts. This call originated from the Coastal States Organization which he chairs.

    This document is intended to be simple and it identifies three straight-forward and easily understandable national actions. The first is to establish a national ocean trust fund to provide new money to support ocean and coastal management. CSO is calling for a fund to begin at $1 billion annually and then ramping up to $4 billion annually. These are numbers that were identified by the U.S. Commission on Ocean Policy after they performed an extensive review of the nation’s situation.

    The second major point is, in addition to mitigation efforts for climate change, there needs to be support to state and local governments to deal with adaptation to climate change.

    The third is support for the reauthorization of the National Coastal Zone Management Act.

    MOTION: Commissioner Peskin moved; seconded by Commissioner Carruthers to endorse staff’s recommendation. The motion carried unanimously.

  9. Consideration of Strategic Plan Status Report. Mr. Travis noted that the next annual workshop will be held on Thursday, September 18, 2008. This will be an all day workshop.

    There is one deadline to change in the plan and he asked for a motion and vote to do so.

    MOTION: Commissioner Baird moved; seconded by Commissioner Nelson to approve changing the deadline. The motion carried unanimously.

  10. New Business. Commissioner Baird said he just received an e-mail that there was a 300 gallon diesel spill from a sunken boat on Pier 45.

  11. Old Business. There was no old business.
  12. Adjournment. Upon motion by Commissioner Wieckowski, seconded by Commissioner Jordan Hallinan, the meeting adjourned at 3:50 p.m.

Respectfully submitted,

Will Travis

Executive Director

Approved, with no corrections, at the San Francisco Bay Conservation and Development Commission Meeting of July 17, 2008

R. Sean Randolph, Chair