Minutes of July 17, 2008 Commission Meeting

  1. Call to Order
    The meeting was called to order by Vice Chair Halsted at the MetroCenter Auditorium, Oakland, California at 1:05 p.m.
  2. Roll Call
    Present were Vice Chair Halsted, Commissioners Baird (represented by Alternate Potter), Bates, Bourgart (represented by Alternate Sartipi), Brown (represented by Alternate T. Smith), Finn, Gibbs, Gioia, Goldzband, Jordan Hallinan, Hicks, Kniss (represented by Alternate Carruthers), Maxwell, McGrath, Moy, Nelson, Peskin, Thayer (represented by Alternate Kato), Wagenknecht, and Wieckowski.

    Not Present were: Governor’s Appointee (Randolph), San Mateo County (Gordon), Alameda County (Lai-Bitker), Association of Bay Area Governments (Lundstrom), Marin County (McGlashan), U.S. Environmental Protection Agency (D. Smith), and Solano County (Silva).

  3. Public Comment Period
    There were no public comments
  4. Approval of Minutes of June 19, 2008 Meeting
    Vice Chair Halsted said that unless corrections are needed to the minutes, she would like to entertain a motion to adopt the minutes of June 19, 2008.

    MOTION:Commissioner Peskin moved, seconded by Commissioner Carruthers to approve the June 19, 2008 minutes. The motion carried with five abstentions.

  5. Report of the Chair
    Vice Chair Halsted reported on the following items:
    1. Next BCDC Meeting. It will not be necessary to hold a Commission meeting on August 7th. As a result of the cancellation, the next meeting will be in five weeks on August 21st. At that meeting, which will be held at the MetroCenter in Oakland, the following matters will be taken up:

      1. A public hearing and vote on a recommendation from the BCDC Enforcement Committee to resolve a series of violations at the Golden Gate Bridge District’s ferry terminal in Larkspur.
      2. A public hearing and vote on amending the agreement BCDC has with ABAG and MTC regarding the Regional Airport Planning Committee.
      3. A public hearing and vote on two related regulatory decisions to enhance the natural habitat of the former salt ponds in the South Bay. One hearing and vote will be on a permit application from the California Department of Fish and Game, and the other will be on a federal consistency certification from the U.S. Fish and Wildlife Service.
      4. A report on the progress BCDC is making in carrying out its strategic plan will be considered.
    2. 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 noted.
  6. Report of the Executive Director
    Mr. Travis provided the following report:
    1. Legislation

      Assembly Bill 2094, Assemblymember Mark DeSaulnier’s measure which is being sponsored by BCDC in order that BCDC will have the authority to address climate change in BCDC’s planning work and to become a voting member of the regional Joint Policy Committee, was approved by the Senate Local Government Committee on June 25th. A few non-substantive amendments have been made to the bill and it has been re-referred to the Senate Appropriations Committee.
      In addition, Assembly Bill 2954, the measure to establish a new San Francisco Bay Restoration Authority, was approved by the Senate Local Government Committee after the bill was amended so that all five of the members of the new authority will be appointed by ABAG. The earlier version of the bill called for four ABAG appointees and the executive officer of the Coastal Conservancy serving as the authority’s chair.

    2. Climate Ready Estuary
      San Francisco Bay has been selected as one of six estuaries nationwide that will serve as pilot projects in a new initiative by the U.S. Environmental Protection Agency called the Climate Ready Estuary Program. BCDC will be partnering with the San Francisco Estuary Project to take an “on the ground” approach to identifying the information that is most needed and the strategies that will be most effective in adapting to climate change. The lessons learned in the Bay Area will be shared with EPA’s 28 other National Estuary Projects.

      To get started EPA staff and consultants will assess the vulnerability of the Bay’s natural systems to climate change, with a focus on impacts other than direct sea level rise. Based on this assessment, a model adaptation strategy will be prepared. This project is expected to last for approximately 18 months. Steve Goldbeck, who is managing this project for BCDC, is available to answer any questions the Commission may have.

      Commissioner Potter asked if the estuary project will receive a funding augmentation for their work. Mr. Travis said they will not. The funding will go to EPA and EPA is hiring consultants who will work with BCDC.

      Mr. Goldbeck noted that the estuary project is the lead with EPA on the program and BCDC is providing technical support and management. The Estuary Project will be working very closely with the Implementation Committee as it moves forward. A Technical Advisory Committee may be set up for this project in order to get broad input both from stakeholders and from scientists in the region.

      Commissioner Carruthers asked if Commissioners could be provided with a hard copy of the work program (scope of the project, schedule, etc.) once it is completed. Mr. Goldbeck confirmed that it would be distributed.

      Commissioner Carruthers also asked if the Commission could receive progress reports from time to time. Mr. Travis said the Commission will receive updates.

    3. Vacation. Mr. Travis informed the Commission that he will be on vacation the week of July 21st and Caitlin Sweeney will be serving as Acting Executive Director in his absence.

  7. Commission Consideration of Administrative Matters
    On July 3, 2008, a listing of the administrative matters was sent to the Commission. One item, deals with $8 million provided by Caltrans seven years ago to mitigate the environmental impacts of construction of the new eastern span of the Bay Bridge by supporting a wetlands restoration program at Skaggs Island, a former Navy facility in Sonoma County. To accomplish this wetland restoration, a number of old buildings have to be razed, hazardous material removed, the property transferred from the U.S. Navy to the U.S. Fish and Wildlife Service, and actual wetland restoration initiated. This process has been plagued by a series of delays which has required BCDC to repeatedly extend the deadlines for the expenditure of the funds. The last time this matter was taken up by the Commission was two years ago when a deadline of August 1, 2008 was set for the transfer of the property and the commencement of removal of the buildings and hazardous material, and a deadline of July 1, 2010 for commencement of the wetland restoration program. If these deadlines are not met, the permit provides that any of the $8 million remaining should be reallocated to another mitigation site selected by Caltrans and approved by BCDC.

    Recently, Congresswoman Lynn Woolsey secured an agreement between the Navy and the Fish and Wildlife Service to achieve the property transfer and the House of Representatives has passed legislation, co-authored by Representatives Woolsey and George Miller, that stipulated the details of the property transfer and would place Skaggs Island in the National Wildlife Refuge System. It appears that what BCDC had hoped would be accomplished five years ago will actually come to pass, however, not by the August 1, 2008 deadline. Caltrans has requested that each of the deadlines in the permit be extended for an additional two years.

    Every time this matter has come before BCDC, the Commission has been assured that with just one more extension of time, this important wetland mitigation project will finally be accomplished. However, unlike the situation BCDC faced in the past, the U.S. Navy is now an active and enthusiastic partner in achieving the property transfer, and there is now Congressional direction and support for this effort. Therefore, unless the Commission directs him otherwise, he will approve the requested time extensions.

    Tom Roth from Representative Woolsey’s staff and Kathy Hoffman from Representative George Miller’s staff were available to offer their support for the requested time extension. There were also representatives from the Navy and the Fish and Wildlife Service present to answer any questions that Commissioners may have about Skaggs Island, and Bob Batha is available to respond to any questions Commissioners may have about the other matters on the listing.

    Mr. Roth said everyone is working very hard to make this project happen. The big difference between today and a few years ago is that the Navy is solidly on board with this restoration and they want to see it occur. Both the Navy and the Fish and Wildlife Service have agreed to move forward and work out a memorandum of agreement which they are currently in the process of doing. It is his hope that within the next few months it will be completed.

    The Navy is doing a new assessment of what it will cost to take down the buildings. The clean-up has been completed and therefore this is a much different situation than in the past. The Fish and Wildlife Service is now looking at a piece of property that, except for the removal of the buildings, is essentially clean.

  8. He asked for the Commission’s forbearance in allowing another two years in order to get this project completed.

    Ms. Hoffman said that Congressman Miller is very appreciative of the Commission’s patience and it is his hope that BCDC will allow the extra time necessary to make this project happen.
    Commissioner Goldzband said assuming the Navy has to have this authorizing legislation before it starts, and assuming the authorizing legislation is signed into law before November of next year, what is the amount of time between the time the President puts his signature on the paper and the time that the project can actually start. Alexandra Elias, with the Department of the Navy Southwest, said generally there are contractors that are able to mobilize in approximately three to four months.

    Commissioner Goldzband said a two year extension will allow another six-month period after the time the Navy states it will be able to work. He asked if the Commission wants to allow this. Mr. Travis said he believes the dynamics are different now and the six-month period will not make a difference. Commissioner Goldzband asked Mr. Travis to provide a report in December of next year reporting on the progress.

    Commissioner Wieckowski asked what would happen to the $8 million mitigation funds if BCDC does not approve the permit. Mr. Travis said there are other mitigation opportunities somewhat closer to the Bay Bridge, such as the East Bay Shoreline State Park, and, as he recalls, the legislation creating the East Bay Shoreline State Park was carried by the Mayor of Berkeley so there is a willing park looking for money.

    Commissioner McGrath said there is a related $2.5 million restoration project that occurred in the East Bay Shoreline Park. He said with a project of this magnitude, it would be good to have staff come back to provide a report on this project and its success in mitigating the environmental impacts of construction of the new eastern span of the Bay Bridge.

    Commissioner Bates said he is convinced that this extension is justified and it is his hope that it can be completed within the requested time period.

  9. Vote on Permit Fee Revisions. Vice Chair Halsted noted that the public hearing for this item was heard and closed at the last meeting. However, Ellen Johnck, due to transportation issues with BART, was not able to arrive in time to speak at the public comment period today. Therefore, she was allowed to provide comments as follows:

    Ellen Johnck, Executive Director for the Bay Planning Coalition, said this permit fee schedule will produce a reasonable accommodation of applicant concerns, as well as cover BCDC’s costs for reviewing and running its regulatory program. The Bay Planning Coalition is endorsing the schedule going forward but she had the following caveats to that endorsement: (1) she is continuing to look at the schedule to see how best it reflects a clear nexus with the time it takes the Commission staff to review permits and the cost of time and materials; (2) there are a couple of issues that staff will encounter in defining total project costs, which includes the cost of planning, engineering, architectural, and other services made, or to be made, for designing the project plus the estimated cost of construction of all aspects of the project both inside and outside of the Commission’s jurisdiction. As an example, the Vision for the Port of Oakland is a $600 million project which a broad portion of it was outside of the Commission’s jurisdiction. If we continue to say the total project cost is both inside and outside then the total fee for that would be over a half million dollars which is significant. Also, the cost of purchasing equipment, for example a crane is purchased and when moving it from one place to another could BCDC consider excluding the cost of transportation of the crane, for instance, from Asia to the United States.

    Vice Chair Halsted said Item 8 is a vote on a proposal to revise BCDC permit fees to comply with directions from the Legislature on increasing revenues and to achieve an agreement that BCDC reached by the regulated community to make the permit fee schedule more equitable. Ellen Sampson will present the staff recommendation on this matter.

    Ms. Sampson reminded the Commission that a public hearing was held at the last meeting and time was extended for public comments. Staff did receive two comments from the Bay Planning Coalition and therefore the staff report being presented today does respond to the comments received.

    Staff believes this will provide the best opportunity to satisfy the Legislature’s direction to recoup 20 percent of BCDC’s regulatory program costs generated through fees.

    Commissioner McGrath asked if there would be the capacity to waive the fee in circumstances where the impacts are de minimis. Mr. Travis said fees cannot be waived. Total project costs are used as a very rough indicator of how big or complex a project is. For 40 years BCDC has used total project costs and it has worked.

    Commissioner Nelson said if staff did a formula based on level of effort required from the Commission, a small project could pay more than a large one. He mentioned that there is no perfect system. Commissioner Nelson asked if staff is recommending that project costs is a better metric than Commission level of effort. Mr. Travis said this is true largely because BCDC does not have a system that tracks that level of effort, therefore a new accounting system would have to be instituted, which would incur an additional cost.

    Mr. Travis said staff tried to respond to what the Bay Planning Coalition raised as a legitimate point, and that is, that costs were ratcheted up on a percentage basis. Therefore, staff ratcheted down on the small projects and increased the larger ones. There is a cap on the larger projects.

    Commissioner Nelson asked what the boundaries are around total project costs for large upgrade projects. Mr. Travis said the boundary is that BCDC has a definition of what total project is, it is then given to the applicant and they provide BCDC with what the total project cost is.

    Commissioner Gioia said he would be interested in knowing, if under this new fee system, BCDC is indeed recovering true costs and how is it measured. It may be that some people are getting an advantage under this system that they would not get if it were based on true hourly costs.

    Mr. Travis said BCDC has had to do cost accounting for federal grants and it is extraordinarily complicated, it is time consuming, and it is not very accurate. BCDC could do it but he does not believe it should. Commissioner Gioia said the main difference is that BCDC does get general fund support from the State of California so the concern for BCDC is more the gap. His concern is where there is a gap issue how does BCDC recover it on some proportional fair basis.

    Commissioner McGrath said while he is willing to vote in favor of this item he still believes hours should be tracked. This would be a management tool for BCDC to see whether or not it is putting its resources according to the priorities. He would like to have further discussions about this for the upcoming strategic plan direction.

    Mr. Travis said you cannot manage what you cannot measure. However, staff would have to be added in order to provide this tracking. The directive from the Department of Finance is that no more staff can be added.

    MOTION: Commissioner Wagenknecht moved, seconded by Commissioner Tim Smith to approve staff’s recommendation for the permit fee revisions.

    VOTE: The motion carried with a roll call vote of 20-0-0 with Commissioners Potter, Bates, Sartipi, T. Smith, Finn, Gibbs, Gioia, Goldzband, Jordan Hallinan, Hicks, Carruthers, Maxwell, McGrath, Moy, Nelson, Peskin, Kato, Wagenknecht, Wieckowski, and Vice Chair Halsted voting “YES”, no “NO” votes and no abstentions.

  10. Briefing on Climate Change by Attorney General’s Office
    Vice Chair Halsted said this item is a public hearing and vote on an application to make modifications to a gas well in the Suisun Marsh. Ming Yeung will provide the background on this proposal.Mr. Rechtschaffen provided the following presentation:

    Ms. Yeung provided the following information:
    This application by Lodi Gas Storage, L.L.C. is for a marsh development permit in the primary management area of the Suisun Marsh. This permit would authorize converting an abandoned gas well to an observation well to monitor the location and pressure of stored underground gas in the Kirby Hills.

    The project would involve placing fill in the primary management area of the Suisun Marsh to reconstruct an access road and well pad around the abandoned well site.

    Staff believes the project raises two primary issues:
    Whether the project involves the minimum fill necessary and minimizes impacts to the Marsh; and Whether the applicant’s proposed mitigation is adequate to off-set the impacts of the project.

    Mr. Scott Wilson, Vice President of Lodi Gas Storage, introduced Susan Bushnell and Chris Brungardt from Jones & Stokes Associates. They will be assisting him with his presentation.

    Mr. Wilson provided an overview of gas storage. Lodi Gas Storage provides a natural gas storage service. This allows consumers to more effectively manage their fuel supply and the reliability of that supply. By having storage in the market consumption area it allows consumers to ship their gas from the supply fields into the local market area. During peak demands, when the pipeline capacities are full, the gas can be distributed to power plants, municipalities, etc.
    The need for natural gas storage and demand is ever increasing in California.
    (Mr. Wilson provided a slide presentation.)

    The specific items for permit authority are:
    The conversion of the W-5 well to an observation well. Initially, approximately 2,350 cubic feet of fill material will be placed on a .4 acre area which includes the road and the well pad site. After the initial construction it will be reduced to .33 acres of permanent impact.
    In an effort to minimize impacts, Lodi Gas Storage decided to use only one monitoring well head and reduced the area from 1.1 acres down to .33.

    Susan Bushnell provided the proposed mitigation and monitoring plan. The proposed action within the primary marsh area would result in impacts to .40 acre of wetlands, including mud flats and brackish marsh wetlands which were previously disturbed during the placement of fill that was put in the area to create the pads and access roads for wells 2 and 5. This was done prior to Lodi Gas Storage’s occupancy of the Kirby Hills.

    The mitigation that Lodi Gas is proposing is an on-site in-kind mitigation which would compensate for the .40 impacts.
    The goal of the restoration plan is to restore .90 acre of brackish marsh system and to create a self sustaining system that is not dependent on outside sources of irrigation, fertilizers, etc.

    The first task will be to remove the fill from the area. The second step will be to restore the wetland hydrology to provide connectivity with the adjacent brackish marsh area. The third step will be to re-vegetate the area using both active and passive re-vegetation. The fourth step is to monitor for five years or until the success criteria have been met. The final step will be to conduct annual maintenance as needed to ensure that at the end of the five year period the brackish marsh has met the success criteria.

    The restoration approach and timing: the first step would be to demarcate the boundary of the mud flat. The second step will be to collect baseline data which includes baseline vegetation, photo documentation, and establishing reference points from the outside area surrounding the undisturbed brackish marsh area. The third step would be to remove the fill and use it to restore the access road and the pad. The fourth step would be for Lodi Gas to conduct the well conversion activities which would occur over a two-month period of time. On a concurrent basis they would be grating and preparing the restoration area for future installation of the soil plant plugs. The final step would be the ongoing monitoring and maintenance over the five year period of time.

    Vice Chair Halsted opened the public hearing. There were no public comments.

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

    Commissioner McGrath said the mitigation plan involves excavation of material and he asked if there are contingency plans or provisions in order to make sure that the soil, once the fill is removed, is suitable for wetland vegetation. Ms. Bushnell said the mitigation launching plan does not, at this point, have any contingency measures but the soil that is there now supports hydrophytes from the surrounding area so they know that it is suitable for growing the plant material. She believes that once the hydrology is returned to the site it will sustain itself over time.

    Commissioner Nelson said the first issue identified by staff was minimization of fill. As the applicant pointed out, the size of exploratory pads are 17,000 to 60,000 square feet. It seems to him that the area needed for an exploratory pad, a production well, and a monitoring well might be different. He asked staff to speak to this issue. Ms. Yeung said for this particular project staff worked with the applicant to be sure that the amount of fill that was placed for the well pad was the minimum amount. There will be an amount that will be the permanent fill for the permanent well pad, but there will also be some temporary fill to allow larger construction vehicles to access the site in constructing the well pad. The temporary fill will be removed after the two-month construction period.

    Mr. Batha said in terms of past projects, this may be the first monitoring well that BCDC has authorized, so there is not a good base to measure this against.

    Mr. Wilson said in addition to monitoring the pressures on the well, periodically logging equipment must be brought in which requires more space. Every effort has been made to reduce the ongoing size of the pad to the minimum required.

    Commissioner Carruthers asked for an explanation of the purpose of the monitoring and observation wells and why is this called Phase II. Mr. Wilson said the monitoring and observation wells are the same thing (it’s two terms for the same thing). The withdrawal wells are connected by piping to convey gas down into, and out of the formation, as opposed to the monitoring/observation wells which are placed on the perimeter because it is important to know to what extent the gas has migrated and the pressure in the reservoir.

    Commissioner Carruthers asked if it was found that the gas was migrating what would the adaptive management response be. Mr. Wilson said the injection rates would be controlled as well as the maximum volume. He does not anticipate that there would be any future behavior that would require additional work in the area.

    Regarding this project being called Phase II, it was explained that this is a different formation now. The existing formation was actually utilized by Dow as their proprietary storage from the 1980’s to the early 1990’s. This was a known entity when Lodi Gas Storage came in to develop the formation and they were able to leverage on existing assets for a small additional footprint.

    Vice Chair Halsted said what would happen in the event of a major seismic event. Mr. Wilson said underground reservoirs are fairly immune to seismic activity because they are deep. As evidenced by the fact that these fields exist in multiple locations, and this particular one was discovered in the 1940’s during times when there was seismic activity and it has not affected the integrity of the formation. There has been much effort put into this project in making sure that no gas will escape. The only real risk is an overfill of reservoir which does not push gas to the surface; gas can migrate subsurface to another zone that he may not have access to and with today’s prices every effort is made to be sure this does not happen.

    Ms. Yeung provided the staff recommendation as follows: Staff recommends that the Commission approve BCDC Permit No. 2-08(M) to Lodi Gas Storage to convert an existing abandoned gas well to an observation well in the primary management area of the Suisun Marsh.

    The staff recommendation includes a number of conditions to ensure that the project involves the minimum fill necessary and minimizes impacts to the Marsh.

    The construction of the well pad and access road will be limited to a 14,400 square foot area that is already disturbed by previous fill. Although an additional 6,500 square foot area will be temporarily impacted, this area will be restored to pre-project conditions after the two-month construction period.

    In order to avoid impacts to wintering and migratory birds and special status species, the recommendation restricts construction activities to the dry months between April 15 and October 15.

    The recommendation also requires the use of a sediment barrier fence and the use of remote sensing equipment whenever possible to minimize the number of people at the site.

    A condition has also been included to ensure that any comments by the Fish and Wildlife Service are incorporated into the project.

    The recommendation also includes conditions to ensure that adequate mitigation is provided as part of the project. Lodi Gas Storage has agreed to remove fill and restore an approximately 39,000 square foot area located north of the well pad site to brackish marsh wetlands. The mitigation will restore an area that is twice as large as the impacted area from the permanent and temporary fill.

    The mitigation will also enhance the quality and diversity of habitats in the marsh and benefit marsh and other special status species. In addition to providing this mitigation, Lodi Gas Storage will return the entire project site to pre-project conditions when the well is abandoned for observation purposes at some point in the future.
    For all these reasons the staff believes that as conditioned the project is consistent with the Commissions laws and policies and recommends the Commission’s approval.

    Mr. Wilson clarified that he has reviewed the staff’s recommendations and agrees with all recommendations staff has put forth.

    MOTION: Commissioner McGrath moved, seconded by Commissioner Carruthers to approve staff’s recommendation for Permit Application No. 2-08(M).

    VOTE: The motion carried with a roll call vote of 18-0-1 with Commissioners Potter, Bates, Sartipi, T. Smith, Finn, Gibbs, Gioia, Jordan Hallinan, Carruthers, Maxwell, McGrath, Moy, Nelson, Peskin, Kato, Wagenknecht, Wieckowski, and Vice Chair Halsted voting “YES”, no “NO” votes and Commissioner Goldzband abstaining.

  11. Briefing on Water Quality Improvements
    Vice Chair Halsted said Item 10 is a briefing by Bruce Wolfe, the Executive Officer of the Regional Water Quality Control Board, on some of the important initiatives of the Board to improve water quality in the Bay.

    Mr. Wolfe provided the following briefing:

    The Regional Water Quality Control Board is in the CALEPA office, along with the Air Board, Integrated Waste Board, and Division Department of Toxic Substance Control. The Regional Water Quality Control Board is one of 9 regions in the State.

    The area the Board directly oversees is between Pittsburgh and Antioch.

    The Regional Water Quality Control Board is commissioned to protect, enhance, and restore surface water and groundwater in the San Francisco Bay Region. The Board consists of 9 members and there are 130 staff members. Currently there is not a full Board.

    In 1972 when the Federal Clean Water Act was adopted, California became the first state in the country to be delegated to implement the Clean Water Act and implement what is called NPDES (National Pollutant Discharge Elimination System) permitting. Elimination is key. Congress’s idea was to eliminate all discharges to the waters by 1985. This really will never happen but the permit system is still in place. The ability to discharge in state and federal waters is a privilege and not a right therefore the permit.

    The Clean Water Act was amended in 1986 to recognize storm water as a discharge that needed to be regulated and in 1991 his region issued the first municipal storm water permits in the country.

    The Regional Water Quality Control Board’s authority comes from the State Water Quality Act, the Federal Clean Water Act, and the San Francisco Bay Basin Water Quality Control Plan (known as the Basin Plan) that codifies all of the Board’s directives and implementation measures.

    There are approximately 60 point waste water discharges in his region, and at the same time sewage overflows are being addressed. Congress decided that urban run-off or storm water was a “point discharge” and needed a federal NPDES permit. This is being regulated by 8 storm water permits throughout the region, as well as a series of general permits established by the state for industrial storm water run-off, construction storm water run-off, and Caltrans run-off.

    The emphasis comes down to trying to do all the activities in a watershed management approach and looking more at the storm water run-off flows because pollutant loads from non-point sources are equal to, and probably more than the pollution to point sources.

    The aging infrastructure in the sewage collection system and at the sewage treatment plants is not getting addressed, therefore resulting in spills. That infrastructure must constantly be upgraded to protect against the spills into the Bay.

    Since the instigation of the Regional Monitoring Program in 1993 there is a better understanding of the trends. Clean-up plans are being developed for constituents such as mercury in the Bay, PCB’s in the Bay, or sediment in creeks. The attempt is to use science to quantify what is the quantity of a constituent getting into the water body and what would be the level that that water body could naturally assimilate to provide beneficial use.

    The dredging and sediment clean-up approach is very much aligned with the work that BCDC does through the long-term management strategy. There are also a number of ongoing projects where he is working to restore contaminated areas near shore where they have been contaminated with sediment historically.

    There is the need to not only protect but restore wetlands and streams where there are opportunities to do so and he is coordinating with BCDC on this issue.

    Because of the mercury that already exists in the Bay, and even if there was no more mercury getting into the Bay, it would take about 70 years for that sediment to work its way out through the Golden Gate. The Board is looking at strategies to ensure that new contributions are being minimized, looking at risk management strategies for addressing issues such as subsistence to fisherman.

    There are still significant levels of PCBs in the sediment in the Bay. The Board will be addressing this issue in the near future.

    The Board has adopted water quality objectives for copper and cyanide in the Bay. It was found that, with respect to copper, the findings were based from science out of the east coast and is not appropriate for the Bay. Combining with ongoing control measures he was able to determine that it is not necessary to do a “TMDL” as long as the waste water plants keep up their copper controls the water quality objective will be met.

    The Board adopted the Pathogens into Richardson Bay which is an attempt to address the level of pathogens or bacteria that get into the Bay that could impair people who use the Bay. The Basin Plan identifies Richardson Bay as having shell fish harvesting as an existing use and it must be protected.

    An area that has been getting a lot of publicity is the Urban Run-Off Program and the Board’s attempt to have a regional permit for all municipalities that are currently covered under existing permits. To a certain degree the permittees are all on a different page and the Board’s attempt to get consistency is recognized and they are continuing to work through this issue.

    The Board is mandated to make sure that all parties perform the higher standards as they become available. On point source discharges there are numeric limitations, and to a certain degree then it is cut and dry as to whether monitoring indicates one is in compliance or not.

    On the other hand the narrative standards are a challenge because the federal regulations say you have to implement all of the narrative measures to the MEP standard but that standard tends to migrate. What can be done today, in five or ten years new technology may come along and drive the bar higher. The Board is mandated to ensure that parties do the higher standards.

    Public is demanding how they can understand whether or not permittees are achieving levels of compliance. The Board wants to provide the municipalities flexibility in how they implement their program. The Board wants to maintain current levels of implementation but enhance it, especially in the area of low impact development, and ensure that the maximum standard is achieved.

    Each of the municipalities in the county wide programs have had certain monitoring aspects in their program, but the Board is trying to make it much more regional because all of the areas run-off and come into the Bay. The Board is trying to align it better with the Regional Monitoring Program.

    The Board is pushing to expand use of the low impact development strategy so that we push more for storage and infiltration and re-use of run-off and look at run-off detention areas that include minimizing impervious surface and essentially lengthening run-off.

    There are many benefits of low impact development and it will save money because in most cases it is cheaper to develop and it can save water and energy at the same time. We need to look at how we can use low impact development as part of our response to climate change impacts.

    The Board is also working on addressing a stream and wetland system protection policy. Historically, the Board has been mandated to protect any fill into open waters, wetlands, and streams. The regulation on this has been somewhat disjointed – the Board has been stronger on wetland protection then stream protection. The Board is trying to tie this in on a much more systematic watershed basis and even proposing new beneficial uses recognizing that streams have flood protection, flood capacity. This has not been spelled out in the beneficial uses before.

    The Board is trying to be more definitive and consistent about what its expectations are in permitting. The CEQA process has begun and the Board is coordinating with the north coast region to try to come up with something that is similar and coordinating with the State Board in order to be consistent statewide.

    When soil and groundwater pollution is close to the Bay the Board will ensure that appropriate clean-up is performed.

    The Board is an enforcement agency and in some instances required to implement mandatory minimum penalties.

    Through this program, there is the opportunity to use this fine money for supplemental environmental projects. The Board is trying to keep these funds in the Bay area as much as possible.

    There are 70 ships in the mothball fleets in the Suisun Bay. Of those 70 ships, 20 are called retention (they could be brought back into service). The non-retention ships would need to be dismantled. The Maritime Administration has 7 dismantling facilities under contract, unfortunately the nearest one to the Bay is Brownsville, Texas. These ships were being towed to Brownsville, Texas and to ensure that no invasive species from the Bay got taken to Brownsville, Texas they were scrubbing the hulls in the Bay without any protection. Because the ships are so old, as that scrubbing occurred three quarters of an inch of the hull was being pulled off including all the chemicals.
    The Board told the Maritime Administration that they could not do any unprotected hull cleaning in the Bay. There were two ships left to transport to Texas and the Board found out that they had the hulls cleaned in the middle of the Gulf of Mexico. So, since that time Maritime Administration has not disposed of any of its ships and has told Congress that California will not let them deal with their ships when California is implementing the Federal Clean Water Act.

    The Maritime Administration said it is addressing the peeling paint on these ships but it will take them some time.
    The Board has worked with Senator Boxer’s office to get money for The National Oceanic Atmospheric Administration to study the long-term impacts from the mothball fleet. Unfortunately, the Maritime Administration felt that if NOAA was going to be doing this study they should be responsible for any long-term impacts. Last week the Board approved getting the State Attorney General to represent it and go into enforcement action against the Maritime Administration. There is also a citizen’s lawsuit and the Court may lump the Board’s lawsuit in with the citizen’s lawsuit.

    In summary, there are a lot of challenges for protecting water quality in the Bay region as well as a lot of opportunities.

    Commissioner Carruthers said he is interested in understanding the process for expanding the beneficial uses. Mr. Wolfe said this is something that would be an amendment to the Basin Plan and before doing that the Board would have to go through the CEQA process. There have been a number of stakeholder meetings for the public process. The Basin Plan update is something that is general funded and as is the constant over the last 8-10 years there have been cut backs in general fund so the work on basin planning gets scrunched.

    Commissioner Carruthers asked what the likely target for the finalization of the beneficial use list. Mr. Wolfe said he hopes to have something out by the end of the year for consideration to his Board. The beneficial uses would go hand-in-hand with the Board’s policy.

    Commissioner Potter asked for an illustration of how the beneficial uses might apply to a permit decision. Mr. Wolfe said, for instance, the flood capacity of a creek would want to be recognized. They will look at what would be the appropriate flood plain for that creek. They would look at activities that might be on the banks or close to a creek in addition to activities that might be precisely in the creek.

    Commissioner Carruthers said relative to the low impact development concept to what extent is the Board able to implement it and to what extent is it a matter of persuading local governments to implement it. Mr. Wolfe said the Regional Water Quality Control Board is not a land use agency and obviously actions the Board takes may drive some land use decisions but it comes down to the fact that the Board does regulate the municipalities and the counties and is trying to push through its new redevelopment guidelines and approaches. Redevelopment is a challenge for each community because it is financed tightly and adding additional requirements has the potential to make it unsuitable for redevelopment. The Board is trying to allow the municipalities the opportunities to come up with their own approaches but have some incentives included.

    Through the permit the Board mandates which size facilities should be directly regulated under the new and redevelopment measures.

    Commissioner Gioia asked if there is some rule that a person cannot represent an agency on the Regional Board; that there are some income requirements. Mr. Wolfe said this is correct and it is a federal requirement for the NPDES program whereby if you have more than 10 percent of your income from a permitted entity you cannot serve on the Board.

    Commissioner Gioia said most county agencies are permitted entities and so the problem is that it eliminates almost every county supervisor from serving. Mr. Wolfe said the State Board has recently come up with what they call the Water Quality Improvement Initiative in response to a number of challenges that Senator Perata put out to reform the water board system. One of those includes the proposal that instead of having the Board consider these permits it would be the executive officer who would issue the permits. In this way the Board would not be subject to that 10 percent because they are not issuing permits.

    Commissioner Gioia asked what is being done to address the gap in the immediate short term. Mr. Wolfe said at this point there has been no new legislation. His understanding is that there is written in the water code the opportunity to appoint somebody to the county category if there are no supervisors available.

  12. Consideration of Strategic Plan Report
    Mr. Travis said the most important thing to notice on the strategic plan is that the next Strategic Planning Workshop will be on September 18. There is one recommended change to change a deadline dealing with the website.

    MOTION: Commissioner Bates moved; seconded by Commissioner Carruthers to extend the requested deadline. The motion carried unanimously.

  13. New Business. Vice Chair Halsted mentioned that next week there will be a huge tall ships event on the Bay – Festival of the sail – and she invited everyone who can attend.

  14. Old Business. Mr. Travis said Vice Chair Halsted had staff send out an invitation to a reception on the evening of July 24th. It will be on the “Californian”; the California State Tall Ship which will be docked at Pier 3 and the reception will be from 7 p.m. to 9 p.m. It was asked that anyone planning on attending should RSVP to the e-mail address on the invitation.

    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.

  15. 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 August 21, 2008

R. Sean Randolph, Chair