Minutes of October 2, 2008 Commission Meeting

  1. Call to Order
    The meeting was called to order by Chair Randolph at the Ferry Building in San Francisco, California at 1:02 p.m.
  2. Roll Call
    Present were Vice Chair Halsted, Bates, Bourgart (represented by Alternate Sartipi), Gioia, Goldzband, Gordon, Kniss (represented by Alternate Carruthers), Lai-Bitker, Maxwell, McGlashan, McGrath, Moy, Nelson, Peskin, Thayer (represented by Alternate Kato), Wagenknecht, and Wieckowski.

    Not Present were: Secretary of Resources (Baird), Sonoma County (Brown), Department of Finance (Finn), Speaker of the Assembly (Gibbs), Governors Appointee’s (Jordan Hallinan and Randolph), U.S. Army Corps. of Engineers (Hicks), Association of Bay Area Governments (Lundstrom), 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 September 4, 2008 Meeting. Vice Chair Halsted entertained a motion to adopt the minutes of September 4, 2008.

    MOTION: Commissioner Wieckowski moved, seconded by Commissioner Wagenknecht, to approve the September 4, 2008 minutes. The motion carried unanimously, with two abstentions.

  5. Report of the Chair
    Report of the Chair. Chair Randolph reported on the following items:
    1. Strategic Planning Workshop. She thanked all the members of the Commission who were able to participate in the Strategic Planning Workshop on September 18th and acknowledged how difficult it is to allocate a full day in the Commissioner’s busy schedules to attend. She found the session to be both interesting and productive and looks forward to formally adopting the updated plan later today.
    2. Potrero Hills Field Trip. Instead of holding the regularly-scheduled business meeting on October 16th, there will be a field trip to the Potrero Hills landfill in Solano County. This will provide an opportunity to gain direct familiarity with this facility; the Commission will be considering a permit application for expansion of the landfill in December. Please respond to staff’s inquiries as to whether or not you can attend this field trip.
    3. Next BCDC Meeting.The next regular business meeting will be on November 6th at the Ferry Building. At that meeting the following matters will be taken up:
      1. As part of the overall effort to make the Commission’s regulatory process more expeditious, a public hearing and vote will be held on amending the Commission’s region-wide permits.
      2. A public hearing and vote will be held on whether to initiate the process of amending the Bay Plan findings and policies to deal with the impacts of climate change.
      3. A public hearing will be held to consider additional information on the feasibility of using a roadway shoulder on the upper lane of the Richmond-San Rafael Bridge for a multiple-use pathway during non-peak commute hours. Last April the Commission voted to support the multi-use pathway idea, and invited CalTrans to provide additional details on safety and the feasibility of providing a pedestrian and bicycle connection at the eastern end of the bridge. The Commission also invited other interested parties to provide additional information on bicycle ridership and usage patterns, along with any other relevant information.
      4. A briefing will be conducted on the efforts of the San Francisco Bay Harbor Safety Committee to improve oil spill prevention and response in the Bay.
      5. The Commission will consider a report on the progress being made in carrying out the strategic plan.
    4. Ex Parte Communications. Vice Chair Halsted invited Commissioners to provide staff with a report on any written or oral ex-parte communications. Seeing no response, she then asked for the Executive Director’s Report.
  6. Report of the Executive Director
    Executive Director Travis provided the following report:
    1. Attorney General’s Staff. He introduced John Saurenman, the new Senior Assistant Attorney General of the Lands Section of the AG’s Office. He replaces Matt Rodriquez, who has been promoted to Chief Assistant Attorney General. Mr. Saurenman works out of the AG’s Los Angeles office and thus will provide the same sort of capable oversight as his predecessor, but will do it from afar.
    2. Budget. California finally has a state budget for the fiscal year that began July 1st. As expected, the budget bill the Governor signed provides $5,645,000 to BCDC, which will support 42 staff positions, four fewer than last year’s budget. The Commission has been able to absorb this reduction through attrition, so it doesn’t have to lay off any staff.

      In an effort to generate additional savings this fiscal year, the Governor has left in place his executive order which imposes a state hiring freeze and curtails new contracts. The Governor has asked BCDC and other independent boards and commissions to voluntarily comply with this executive order because he does not have the power to mandate Commission compliance. The Commission will continue to fully comply to the degree this practice doesn’t conflict with carrying out any legally-mandated responsibilities. For example, I have already found it necessary to approve a $2,500 contract for essential information technology consulting services and to renew the employment of a retired annuitant who works part-time providing accounting services that are required by state law. With the budget in place, Commission members will soon receive the $100 stipend they are entitled to for attending BCDC meetings.

    3. Personnel. Those who attended the strategic planning workshop had an opportunity to meet two new members of the staff. John Bowers will replace Ellen Sampson, who is retiring November 7th, as legal counsel. The Commission is able to hire John because the job was offered and accepted before the Governor’s hiring freeze announced in July. The Commission has awaited approval from the Department of Personnel Administration to approve the hire, and this approval happened a few weeks ago. Mr. Bowers received his BA from Princeton University and law degree from the University of Michigan. He has been a staff counsel at the California Coastal Commission for more than 20 years and has also been on the legal staffs of the California Housing Finance Agency, the Maine State Housing Authority, Bronx Legal Services and the National Health and Environmental Law Program. Unless there are objections, John will begin his employment with the Commission on October 20, 2008.

      The other new staff member is Pam Epstein, who is a legal intern for the Commission this fall. Pam is pursuing a Masters Degree in International Environmental Law and Policy at the Golden Gate University Law School. She has a law degree from the University of LaVerne School of Law.

      Two other unpaid interns have also been added to the staff, Megan Switzer and Javier del Castillo, who are working in the GIS unit.

    4. Legislation. Last Saturday, Governor Schwarzenegger signed AB 2094 into law. This is the bill Assembly Member Mark DeSaulnier carried to direct BCDC to address climate change in its planning work and to authorize the Commission to become a voting member of the regional Joint Policy Committee.

      The Governor also signed AB 2954, the Save the Bay’s measure to establish a new San Francisco Bay Restoration Authority; and SB 375, Senator Darrell Steinberg’s measure which advances the work the Commission is doing with the Joint Policy Committee to better coordinate local planning and curb suburban sprawl.

      The Governor vetoed Senator Alan Lowenthal’s SB 974, which would have imposed a fee on containers moving through California’s ports to generate funds to reduce traffic congestion and put cleaner engines in truck and trains.

      In other legislation that affects the Bay, the Governor signed several bills that used the lessons learned from the oil spill in the Bay last year to improve spill prevention and response capabilities in California. There will be more on this at the November 6th briefing.

      In Washington, there has also been some action on legislation that is of interest to BCDC. When the Commission agreed in July to extend the time periods for the transfer of property and wetland restoration at Skaggs Island, I mentioned that federal legislation had been introduced by Representative Lynn Woolsey to require the Navy and the Interior Departments to develop an agreement on the property transfer and to accept the funding of BCDC controls. That legislation (HR 5658) has been passed by the House and Senate and is likely to be signed by the President, as it has been incorporated into the Defense Authorization bill.

    5. Permit Application Form. As you may recall, last October the Commission voted to revise the permit application form. Last week the regulations embodying the new form were approved by the Office of Administrative Law. Therefore, the Commission will begin to use the new form next week.

    6. Paradise Cay. Regarding the saga of the Paradise Cay Marina in Marin County -- last November the Commission approved a permit amendment and accompanying stipulated judgment that established deadlines for both completion of the last two phases of the marina and financial penalties if the deadlines are not met.

      The first phase, consisting of the marina berths, a parking lot, landscaping and signage, was required to be completed by May 29, 2008. The second phase is the harbormaster’s building, which was required to be completed by September 26, 2008.

      The first phase was not completed until June, so under the terms of the stipulated judgment, Tom Moseley, the owner of the marina, paid a $40,000 penalty.

      Construction of the harbormaster’s building was begun only recently and, according to Mr. Moseley, will require six more months to complete. In order to have BCDC’s authorization to continue work on the harbormaster’s building after the September 26th deadline, Mr. Moseley submitted a request for a non-material permit amendment. I approved this amendment request, which will also keep the penalty provisions of the stipulated judgment in place until March 10, 2009.

      Even with this extension, the stipulated judgment still requires that Mr. Moseley must pay $40,000 because he did not meet the September 26th deadline. However, the judgment also provides that he may request tolling of the project completion deadlines if the delays were caused by inaction or slow permit processing by either Marin County or BCDC. Mr. Moseley submitted just such a request because he contends there was a one year delay in Marin County’s issuance of the building permit for the harbormaster’s building.

      While it appears there were some unexpected delays in getting County approvals, the Commission believes the last phase of the construction can be completed by March 10, 2009. Therefore, unless directed otherwise, Executive Director Travis will tie the outstanding $40,000 penalty to that date.

      Commissioner Goldzband asked what options are available to the Commission should Mr. Moseley again fail to meet imposed deadlines. Executive Director Travis responded that the Commission can direct him not to tie the $40,000 penalty to March 10, 2009; but rather to another date. Deputy Attorney General Reynolds noted that if Mr. Moseley does not meet the deadline then, as of March 10, 2009, he would have no authorization to continue any more work. Commissioner Wagenknecht suggested that, realistically, if he is not done by March 10th the Commission will collect the $40,000 and probably extend the permit to allow him to finish, as completing the work is the Commission’s primary objective.

    7. Business Council on Climate Change. Unless the Commission objects, an invitation will be accepted to become a partner in the Business Council on Climate Change, which is commonly called BC3. This organization works with its members on ideas that advance the goal of reducing greenhouse gas emissions in the Bay Area. As a Council partner, the Commission can serve as a resource to the Council’s members who are trying to figure out how to best adapt their business practices to deal with climate change. The Commission is particularly looking forward to working with the members who are builders, architects, engineering firms and other consultants that are trying to incorporate climate change and sea level rise into their development decisions in a positive way. There are no direct financial obligations to serving as a partner, other than staff time, on the Business Council on Climate Change.

      Commissioner Gioia commented on recent conversations among agencies that have been directed at how the various Bay Area agencies, in the context of the JPC, can work together on climate change.

  7. Commission Consideration of Administrative Matters
    There were no discussions regarding administrative matters.
  8. Vote on Amendment Application No. 7-03, California Department of Fish and Game, for the South Bay Salt Ponds Restoration Project, Eden Landing Site, Alameda County. Vice Chair Halsted noted that Items 8 and 9 both deal with the same overall project -- the South Bay Salt Ponds Restoration Project. Item 8 deals with a permit application from Fish and Game for authorization to initiate a portion of the restoration project on 5,500 acres of state-owned property in Hayward and Union City. Item 9 deals with a federal consistency determination by the U.S. Fish and Wildlife Service for authorization to initiate another portion of the restoration project on 9,600 acres of federally-owned property located within five cities and three counties. A single public hearing was held on both projects at the September 4th meeting, but the Commission needs to vote separately on each project today.
    Max Delaney presented the staff recommendation on Item 8. The Staff recommends that the Commission approve amendments to both Consistency Determination 10-03 and BCDC Permit 7-03, both of which will implement Phase One of the Project. This is the first step in restoring 3,069 acres of former industrial salt ponds to tidal wetlands and managed pond habitat.
    The staff recommendation includes a number of conditions designed to assure the success of the restoration effort and minimize project impacts, among them:
    1. The implementation of best management practices to minimize impacts to natural resources and water quality during construction;
    2. Monitoring of methyl mercury, dissolved oxygen, salinity and other parameters that may affect water quality and wildlife;
    3. Monitoring of sediment dynamics and potential scouring and erosion in adjacent mudflats and tidal marshes;
    4. Monitoring the use of public access areas and nearby parking facilities to assess whether the public’s needs are being met;
    5. The use of protection measures to prevent and/or minimize adverse effects to listed and special status species in the project areas; and
    6. Ongoing maintenance activities to maintain water quality and habitat value in the remaining ponds that are not being restored as part of Phase One and extend the time for conducting such maintenance activities until November of 2020.
      In addition to the errata distributed to the Commissioners, another couple of changes are proposed to the recommendations. The environmental review conditions have been changed and now read as follows:

      “The California Department of Fish and Game and the U.S. Fish and Wildlife Service, as lead agencies for the overall project, prepared, circulated and on March 11, 2004 certified a final Environmental Impact Report/Environmental Impact Statement for the South Bay Salt Ponds initial stewardship plan. The same two agencies prepared and circulated an EIR/EIS for the South Bay Salt Ponds Restoration Project, which evaluates the potential impacts of the proposed Phase One activities. The final EIR/EIS was issued in December of 2007 and certified by the Department of Fish and Game in March 2008.”

      In addition, language was added shown (in italics) below to page 42, paragraph three, of the recommendation for the permit as follows: “these short-term impacts will be mitigated to less than significant measures by the implementation of mitigation measures outlined in special conditions 2-L-11 and 2-L-12, such as assessing and maintaining salinity and other water quality parameters at levels protective of aquatic resources and possibly closing intakes on salmonic migration routes during periods of juvenile migration.”

      Eric Larson, California Department of Fish and Game (CDF), noted that CDF has reviewed the application and is fully supportive of it.

      Commissioner McGrath commented on the context of the public access for the project. The impact of public access on the restored areas, using 300 feet as the area impacted by access, will be something less than six percent of the total project area. Also, with public access you get stewardship and ownership. He sees the public access as being just what it should be.

      Vice Chair Halsted noted that federal representatives cannot vote on the motion.

      MOTION: Commissioner Carruthers moved, seconded by Commissioner Lai-Bitker, to approve Amendment Application No. 7-03. The motion passed unanimously.

      VOTE: The motion carried with a roll call vote of 17-0-0 with Commissioners Bates, Sartipi, Gioia, Goldzband, Gordon, Carruthers, Lai-Bitker, Maxwell, McGlashan, McGrath, Moy, Nelson, Peskin, Kato, Wagenknecht, Wieckowski, and Vice Chair Halsted voting “YES”, no “NO” votes and no abstensions.

  9. Vote on Amendment to Consistency Determination No. CN 10-03, U.S. Fish and Wildlife Service, for the South Bay Salt Ponds Restoration Project, Alviso and Ravenswood Sites, Alameda, Santa Clara, and San Mateo Counties. Max Delaney presented the staff recommendation for approval of Item 9.

    Mendel Stewart, Project Leader, National Wildlife Refuge Complex, U.S. Fish and Wildlife noted that the application has been fully reviewed and Fish and Wildlife is fully supportive of it.

    MOTION: Commissioner Nelson moved, seconded by Commissioner Wieckowski, to approve the Amendment to Consistency Determination No. CN 10-03. The motion passed unanimously.

    VOTE: The motion carried with a roll call vote of 17-0-0 with Commissioners Bates, Sartipi, Gioia, Goldzband, Gordon, Carruthers, Lai-Bitker, Maxwell, McGlashan, McGrath, Moy, Nelson, Peskin, Kato, Wagenknecht, Wieckowski, and Vice Chair Halsted voting “YES”, no “NO” votes and no abstensions.

  10. Public Hearing and Vote on Strategic Plan. Executive Director Travis noted the staff recommendation called for a public hearing and vote be held on the proposed Strategic Plan.

    Ellen Johnck, Executive Director, Bay Planning Coalition, congratulated the Commission on the proposed strategic plan. She asked that an additional objective be considered — the need to focus on the waterfront. She proposed that the Coalition and the Commission work together to identify a strategy that sustains local industry, ensures there is an adequate supply of land for water-dependent and associated transportation infrastructure, yet at the same time balances and ensures the compatibility of land uses that are going to be coming into the waterfront and adjacent to it. This would involve all the uses that could combine and coalesce at the waterfront.

    Ms. Johnck then read an initial draft for one possible objective: “BCDC staff would work with the Bay Planning Coalition to develop a strategy to ensure the adequacy of waterfront land for industry and marine transportation and infrastructure, and that also allows for the compatibility and balancing of other adjacent recreational and commercial land use.”

    Executive Director Travis suggested that the Commission welcome the Coalition’s input and that they work together in the near future on developing a strategy to meet this objective. He further suggested that, as part of their status report for next month, he would bring some specific language before the Commissioners regarding this subject.

    MOTION: Commissioner McGrath moved, seconded by Commissioner Carruthers, that the Public Hearing portion of Item 10 be closed. The motion carried unanimously.

    MOTION: Commissioner McGrath moved, seconded by Commissioner Wieckowski, to approve the currently constructed Strategic Plan, with the understanding that there will be an addition to it next month, per Executive Director Travis’ suggestion (see above). The motion carried unanimously.

  11. Briefing on Tidal Energy Generation. Dr. Ian Austin, Vice President, URS, gave a presentation on the feasibility of using the Bay waters to generate renewable power. A few highlights:

    He noted that San Francisco has a goal of producing about 10 percent of its energy needs from renewable resources.

    In-stream tidal power is harnessing the energy from the flows coming through the Golden Gate; and the capture of energy from waves at sea.

    The SFPUC retained URS in 2006 to look at potential resources. Large computer models were used and reviewed. Various databases were integrated into graphic form. URS concluded that the total resource available is approximately 12-15 megawatts, which is considerably less than the approximation from EPRI (about 1/10 as much).

    Commissioner McGlashan asked about the so-called Venturi tube that could be utilized to produce power; Dr. Austin responded that the technology really does not work.

    Other Commissioners asked questions and commented on the presentation.

    After the briefing Vice Chair Halsted stated that, although a public hearing was not scheduled for this briefing, anyone wishing to comment could do so. Seeing no response, she thanked Dr. Austin for the presentation.

    MOTION: Commissioner Nelson moved, seconded by Commissioner Moy, to adjourn the meeting. The motion carried unanimously.

  12. New Business. There was no new business.

  13. Old Business. There was no old business.

  14. Adjournment. Upon motion by Commissioner Nelson, seconded by Commissioner Moy, the meeting adjourned at 3:00 p.m.

Will Travis
Executive Director

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

R. Sean Randolph, Chair