Minutes of January 15, 2009 Commission Meeting

  1. Call to Order
    The meeting was called to order by Chair Randolph at the Metro Center Auditorium in Oakland, California at 1:00 p.m.

  2. Roll Call
    Present were Chair Sean Randolph, Vice Chair Halsted, Commissioners Baird represented by Alternate Vierra), Bates (represented by Alternate Balico), Bourgart, Gioia, Goldzband, Gordon, Hicks, Kniss (represented by Alternate Carruthers), Lai-Bitker, Lundstrom, Maxwell (represented by Addiego), McGlashan, McGrath, Moy, Nelson, Reagan, Smith, Kato, and Wieckowski. Not Present were: Sonoma County (Brown), Department of Finance (Finn), Speaker of the Assembly (Gibbs), Governor’s Appointee (Jordan Hallinan), Napa County (Wagenknecht) and San Francisco County (Vacant).

  3. Public Comment Period
    Ms. Jenny Callaway, District Director for Assemblymember Jared Huffman, read a letter from Senator Mark Leno and Assemblymember Huffman:

    “This letter urges the BCDC to deny the application from the Department of Corrections and Rehabilitation (CDCR) related to the construction of the $356 million San Quentin Prison Condemned Inmate Housing Project. We strongly oppose the project and have urged the Governor’s office and CDCR to explore alternatives to building on this property. To date, the administration has refused to consider any alternative and CDCR is now rushing to break ground in the weeks ahead, even as California faces the worst fiscal crisis in our history.

    There are many reasons to oppose the project, including the massive construction and operation costs, which will exceed $1.6 billion over the next 11 years, and the fact that, according to the state auditor, the new facility is likely to run out of space by 2014, just three years after it opens.

    As it pertains to BCDC’s jurisdiction, there is more direct reason to oppose the project. It would have substantial long-term negative impacts on the environment and the public’s use and enjoyment of San Francisco Bay, including permanent loss of public access, recreational opportunities and aesthetic damage, permanent loss of an ideal ferry terminal location with the potential for a world-class ferry transit hub at the western edge of San Quentin property - a site long identified as perhaps the best deepwater ferry terminal location on the entire San Francisco Bay, continued harmful and annual dredging of the Corte Madera Creek Channel to maintain the current inferior ferry location, continuation of greenhouse gas and other harmful emissions due to the ferry’s traveling extra distance and slowing down to reduce wake for the final five minutes of the ride, and continuation of wetland degradation and foreclosure of wetland restoration possibilities. These impacts are clearly within BCDC’s regulatory authority and resource protection mission. While the Commission cannot dictate to CDCR what type of project it does, it can require CDCR to design a project in a way that avoids or minimizes loss of public access and harm to San Francisco Bay and that doesn’t permanently foreclose a golden opportunity to improve the environment and the public’s use and enjoyment of the Bay in the years ahead.

    It is also significant that global warming impacts have never been considered, much less addressed, in connection with this project. CDCR’s CEQA process was completed prior to AB 32 and before the policy clarifications that now make it clear that greenhouse gas impacts and global warming considerations must now be part of the environmental review process. If CDCR will not address these issues then it is incumbent upon BCDC, as a state agency with a public trust and resource protection mandate, to consider them as part of your permitting decision.

    Finally, and arguably the most obvious reason for BCDC to deny this permit, is CDCR’s proposal to give approximately $1 million to the Marin Transit Authority to partially fund a Bay Trail gap closure. One million dollars does not begin to compensate for permanently locking out the public from this spectacular swath of San Francisco Bay shoreline. The BCDC staff analysis shows that $1 million would be at the very low end for any in lieu public access payments. While we question whether any amount of money could compensate for the environmental damage and permanent loss of the public use and enjoyment that would result from this project, $1 million is patently inadequate in lieu payment for the loss of public access at this incredible location. On this ground alone the permit could and should be denied.

    Thank you for your thoughtful consideration. If we can be of assistance please don’t hesitate to contact us.”

    Mr. Tony Sustake ,Richmond, echoed Ms. Callaway’s comments and specifically asked BCDC to lobby Caltrans to live up to its promise to allow pedestrian and bicycle access to San Rafael Bridge. He stated that Richmond has some very rich and natural historic resources with the Rosie the Riveter and other things on the Richmond shoreline and Point Pinole, etc. Having access to the bridge, as Caltrans promised as part of its mitigation, would allow people to make a very nice tour of the area.

    Mr. Walter Strakosh, Marin County resident, asked the Commission to take another look regarding the CDCR proposed application for San Quentin. According to the Marin Independent Journal, October 2001, the annual cost of running San Quentin, compared to a more modern prison, was quoted as $20-30 million more annually. The cost in 2001 to build new prison housing with the same amount of prisoners as San Quentin would have been $695 million. The taxpayers could have built a new prison with the savings in about 23 years. If we cared about the taxpayer’s money, that is what we should be thinking about doing.

    The feds closed Alcatraz when it had outlived its usefulness and became so costly to operate. Why not the State of California? It would appear that the state has ignored a similar fact with San Quentin. Our Governor claims to be a fiscal conservative but on this issue he seems to back off and we wonder why the term “politics as usual” became so infamous.

    There are 80 miles of open space between Oakland and Sacramento that is easily accessible to San Francisco, Sacramento and the prison’s attorneys. A whole new prison would be cheaper to build in that area, and less expensive to staff and operate. The estimated cost to build a new condemned complex in 2003 was $220M. That amount is now $356 million and we only have 764 beds, compared to 1,024 when the project was first proposed.

    A better use for the property at the proposed San Quentin site would be a bus terminal and ferry terminal, benefitting the entire North Bay and easing the commute for many of the current 705,000 residents and the 164,000 new residents who will be in the North Bay by 2025. Move the whole prison and we could also build additional affordable housing, not to mention the huge amount of money the state could make by selling the property and having a world-class, environmentally sensitive development there. And that is what the BCDC, I think, should be about.

    Ms. Jane Levinsohn, Corte Madera resident, showed a picture of the end of the Greenbrae Boardwalk in Marin County. The picture shows the last houseboat and Dairy Hill. On the back of the picture is a picture of Dairy Hill and how close it comes down to the ferry boat passage leading to Larkspur Landing.

    She added that on Tuesday Senator Mark Leno had an article in the Independent Journal that said it costs the State of California $250 million a year to have the death penalty on its books. Since 1978 there have been 13 executions in California. This is no time to be spending $400 million on the site of a 150 year old rat-and-cockroach-infested prison that should be torn down and not added to.

    She asked “how many of you have actually visited the site you’re about to vote on? I would suspect not many. I live within site of the facility and there are things in your report which are not correct.” For instance, it talks about Dairy Hill and says that the background view shed would be beneficially affected because removal of Dairy Hill would open up views to the Bay. It doesn’t say anything about opening up views to the prison -- the lights, the yard, the noise, and all the other disturbances that would come from that area if Dairy Hill were torn down. Dairy Hill is a 650-foot high hill that is the only buffer between the folks on the Boardwalk and the prison and it will be reduced to a six foot height. It has been there for as long as Marin County has been there.

    As far as water is concerned -- they want to cut down the flushes of the toilets. There’s a lot of inmates who wash their clothes in their toilets because they don’t have a decent laundry.

  4. Approval of Minutes of December 18, 2008 Meeting
    Chair Randolph entertained a motion to adopt the minutes of December 18, 2008.

    MOTION: Commissioner Balico moved, seconded by Commissioner Lai-Bitker, to approve the December 18, 2008 minutes. The motion carried with five abstentions.

  5. Report of the Chair
    Chair Randolph reported on the following:
    1. New Commissioners. Chair Randolph noted that the Solano County Board of Supervisors has appointed Mike Reagan to serve as the County’s representative on BCDC. Barbara Kondylis will serve as Mike’s alternate.
    2. Former Commissioners. As reported at the last meeting, the terms of two long-time Commission members ended with the coming of the New Year. Aaron Peskin represented the Board of Supervisors of the City and County of San Francisco, and Tim Smith represented the Sonoma County Board of Supervisors in his capacity as an alternate member. BCDC staff has proposed resolutions thanking both of them for their terms (as well as David Owen, who was Commissioner Peskin’s alternate).

      MOTION:Commissioner McGlashan moved, seconded by Commissioner Goldzband, to approve resolutions of thanks for Commissioners Peskin and Tim Smith and alternate Owen. The motion carried unanimously.

    3. Joint Policy Committee (JPC). Seven representatives of the Commission have been serving on the regional JPC in a non-voting capacity for the past two years: Jim Bourgart, Geoffrey Gibbs, Larry Goldzband, Rich Gordon, Charles McGlashan, Vice Chair Anne Halsted and Chair Randolph. As a result of the passage of AB 2094, these seven are now voting members of the JPC. However, JPC passed a resolution reducing the number of representatives that can be appointed by each of the regional agencies from seven to five members effective

      2-1-09. Therefore, it is necessary for BCDC to trim its delegation by two appointees.

      The seven members discussed this earlier today and concluded that it would be best for Commissioners Bourgart and Goldzband to forego their appointments to the JPC. Therefore, in accordance with BCDC regulation section 10250(b), Chair Randolph asked for a motion expressing the full Commission’s concurrence on this decision and the re-appointment of Commissioners Gibbs, Gordon, McGlashan, Vice Chair Anne Halsted and Chair Randolph as BCDC representatives on the JPC.

      MOTION:Commissioner Carrruthers moved, seconded by Commissioner McGrath, to approve the re-appointment of Commissioners Gibbs, Gordon, McGlashan, Vice Chair Halsted and Chair Randolph and to express their thanks for the work of Commissioners Bourgart and Goldzband. The motion carried unanimously.

    4. Next BCDC Meeting. The next regular business meeting will be in three weeks on February 5, 2009 at the Ferry Building in San Francisco. At that meeting the following matters will be taken up:

      1. A public hearing on whether a roadway shoulder on the upper lane of the Richmond-San Rafael Bridge should be used for a multiple-use pathway during non-peak commute hours.
      2. A public hearing and a vote on amending the last of BCDC’s regionwide permits.
      3. A briefing will be heard on plans for a 1,400-acre shoreline property in Redwood City.
    5. Ex Parte Communications. Chair Randolph reported on an ex parte communication during a conversation with Jim Wunderman, Steve Kinsey and Assemblymember Jared Huffman, who indicated that they believe the Commission should not approve the permit application for the inmate housing facility at San Quentin State Prison, which will be considered shortly. They believe the public access proposed as part of the project does not meet BCDC’s mandated requirement that every project provide maximum feasible public access to the Bay and shoreline. Also, the construction of the inmate housing would forego the opportunity to use the site for other purposes that are more appropriate from a regional perspective and have less adverse environmental impacts.

      Chair Randolph invited Commissioners to provide staff with a report on any written or oral ex-parte communications.

      Vice Chair Halsted reported that she had a similar conversation with Steve Kinsey this morning, mostly reflecting the letter that Mr. Kinsey submitted to all the Commissioners.

      Commissioner Lundstrom reported that she was contacted by Mr. Kinsey concerning the question of maximum feasible public access and the transit issues on the San Quentin site. Ms. Lundstrom also had a discussion with staff of the Transportation Authority of Marin (TAM) regarding BCDC public access findings.

      Commissioner Nelson reported that he was also contacted by Assemblymember Huffman with the same message that the Chair has reported.

      Commissioner McGlashan reported that he also had conversations with Jared Huffman and Steve Kinsey which basically reflected the remarks of his colleagues -- the maximum public access issue with Kinsey and the financial matters with Assemblymember Huffman. He also spoke with Jane Levinsohn from the local community and, regarding legal matters, with Patrick Faulkner, county counsel.

  6. Report of the Executive Director
    Executive Director Travis provided the following report:a.
    1. Budget. The Governor and Legislature still have not reached agreement on how to deal with the state’s multi-billion dollar budget deficit. As part of the administration’s efforts to deal with this crisis, last Friday, BCDC received further instructions regarding the Governor’s

      plans. Except for those operations that have to be open 24/7, all state agencies have been directed to close their doors the first and third Fridays of each month and to furlough their staff without pay on those two days. This approach, which amounts to a ten percent salary cut for state workers, should save BCDC about $117,000 this fiscal year and an additional $282,000 in fiscal year 09-10.

      We intend to follow these instructions unless they are deemed invalid by a court decision on one or more of the lawsuits that have been filed against the Governor.

      This furlough program will have an impact on our ability to deliver quality service to the public. We believe the best way to deal with these problems is to generally hold only one Commission meeting a month, on the first Thursday, and to mail the material for that meeting on the third Thursday. Undoubtedly, there will occasionally be a need to hold a second monthly meeting, so please continue to reserve both the first and third Thursday afternoons for BCDC meetings. It is essential that all Commission members stay until the very end of every meeting, so please don’t schedule other obligations that would force you to leave our BCDC meetings before 5:00 p.m.

      As you know, we’ve already instituted a $100,000 expenditure reduction plan in the current fiscal year so we can quickly respond to any further directives from Sacramento. We will continue to keep you apprised as the budget details unfold.

    2. Interns. We are still able to attract bright, young volunteer interns to work for us. Nicole Gladstone has been with us for about a month. She completes her internship tomorrow and heads back to Hampshire College in Massachusetts.

      Jasmine Keough joined our legal staff on Monday. She’s a second year student at the University of San Francisco School of Law, where she co-chairs the Environmental Law Society and edits the Maritime Law Journal. She is a graduate of Pepperdine University. In addition to her legal skills she is able to translate any legal documents we produce into either Farsi or French. She will be with us until May.

    3. Competition Contract. Competition Contract: At our last meeting you authorized me to enter into a $25,000 contract with Meckel Design Consulting to manage an international competition for innovative design ideas for dealing with sea level rise. You also authorized staff to provide up to five $10,000 awards to the winners, who would refine and expand the best ideas generated by the competition.

      Based on his experience in managing other design competitions, our consultant, David Meckel, has recommended that we use a small portion of the funds earmarked for awards to retain a graphic designer who can assist us in developing a competition Website, create an inspiring call for ideas, and provide a unifying visual image for all competition materials. Mr. Meckel believes this will expedite the next step in the competition process and our staff believes his recommendation is sound. Therefore, $2,500 will be used to secure the services of a graphic designer. If you have questions about this matter please direct them to Brad McCrea.

    4. Larkspur Ferry Terminal. Last August, BCDC approved a stipulated agreement with the Golden Gate Bridge, Highway and Transportation District, to resolve a series of violations at the District’s Larkspur Ferry Terminal. The agreement required the District to complete a number of improvements at the terminal by January 1, 2009. Most were completed, including eliminating parking on a bicycle path and making improvements in the public access areas. However, the District was unable to complete other obligations, including replacing a concrete wall with a transparent fence, installing new bike racks, seating and modular news racks, and installing signs. The District requested a time extension until April 1, 2009 to complete these obligations and our staff has determined that it is reasonable to grant the extension and has done so.

    5. Reports. A report entitled “Taking the Heat”, the feature article in the current edition of Bay Nature Magazine, which describes the impact of climate change on the Bay Area ecosystem. As you may recall, BCDC provided $6,000 to help underwrite the preparation of this report, as part of the broader initiative to make the Bay Area aware of global warming. It was written by Glen Martin, who for many years was the environmental writer at the San Francisco Chronicle.

      The second report deals with regional issues BCDC is working on in partnership with other agencies and organizations. In the strategic plan you directed staff to provide a quarterly update on the actions of the regional committees on which BCDC serves. This is the first of these required reports. If questions, please ask Joe LaClair.

      Finally, the current edition of NOAA’s newsletter is about its coastal fellowship programs and features an article on our very own NOAA fellow, Dan Robinson.

  7. Commission Consideration of Administrative Matters
    There was no administrative listing for this meeting.

  8. Vote on Permit Application No. 2-06 from the California Department of Corrections and Rehabilitation for the San Quentin Prison Condemned Inmate Housing Project in Marin County
    Chair Randolph noted that a public hearing was held on this application at the last BCDC meeting. He noted a letter and materials from Karen Wolowicz will provide the staff’s recommendation on the application.

    Mr. Bob Sleppy, CDCR, reviewed the San Quentin proposed Condemned Inmate Complex. Construction funding budget of $300 million was recently approved. The prison extends from the east gate in San Quentin Village, past the employee parking lot, around the point, and over to the west gate on Sir Francis Drake Boulevard. The shoreline area around the prison has not had public access for many decades; it has been a part of the prison.

    The project site is to the west, in an area underutilized consisting of warehouses and buildings. The majority of the project is outside the BCDC zone.

    There are 33 prisons in the state; this is the first/oldest in the state. It houses 5,200 inmates; of those, 634 have committed homicides and are committed to the condemned unit. The current condemned unit was never meant for this level of capacity.

    The other 32 prisons in the state of California are at capacity -- 180 to 200%. The CA system is designed for 84,000 and currently houses 170,000. A new prison expansion is badly needed to help diminish this enormous system-wide overcrowding. It is very important to CDCR. They have the area to build it, the inmates and staff are there already and they have the protocol for handling inmates there.

    This project is extremely important for the officers. The spatial area in the old prison is so small that officers stand a darn good chance of being attacked day in and day out. It is a tough place to work and needs to be fixed. It needs to be a modern prison where the officers are not so exposed.

    The proposed project will be a much safer prison. It will meet the prison design guideline standards, which includes a very good fence.

    They fully support the staff work that went into the proposal, which is to take the BCDC mitigation line item of $1 million, put $900,000 of it to Marin County for their project, take the balance of $100,000 and fix up the historic pump house site and make it public access. The plan respects the historic pump house setting and the dimensions of the historic area and it provides an overview to the Bay. It is a great plan that can be done with the remaining funds.

    Mr. Sleppy expressed his appreciation for the staff work that has gone into this.

    Ms. Karen Wolowicz gave the staff’s recommendation, which is that the Commission approve the small portion of a project to build new Condemned Inmate Housing Project at San Quentin.

    Approval of the recommendation, as conditioned, will result in the following in the shoreline: construction, use and maintenance of a guard tower; a gun locker building; a portion of a paved road; and a 1,000 foot long portion of a lethal, electrified security perimeter fence and a construction staging area. The only work proposed in the Bay is a storm water outfall.

    The recommendation conditions approval to require two components of public access for this project; first is construction, use and maintenance of a public access area, located on Main Street in San Quentin Village. The public access will be centered around but not affect the historic saltwater pump house. It will include 2 to 3 parking spaces, landscaping, a view platform with an interpretive display, a short path, and two seating areas. Second, CDCR will provide in-lieu access by contributing $900,000 to the Transportation Authority of Marin to provide offsite public access. The money will be used to help fund a portion of the $10 million phase of the Central Marin Ferry Connection. This phase of the project will connect the Cal Park Hill Tunnel to Sir Francis Drake Boulevard via a bicycle and pedestrian bridge over Sir Francis Drake Boulevard, to connect to Larkspur Landing and the Ferry Terminal.

    Staff’s recommendation has special conditions that require the permittee to incorporate Best Management Practices to minimize impacts on natural resources and executive director approval of the disbursement of funds to the Transportation Authority of Marin.

    Staff has received a number of calls and e-mails since the closure of the public hearing. We have attached the letters received, along with a few articles from the Marin Independent Journal, in the packets you received today. Most of the concerns center outside the Commission’s purview.

    A few comments mentioned that the project does not provide maximum feasible public access, an issue properly before the Commission. As the Public Hearing has been closed, the Commission has the discretion to include these comments or not in their vote.

    The staff believes the project is consistent with the law and Bay plan policies regarding bay fill, public access, and appearance design and scenic views. In addition, the recommendation should be revised to reflect revisions noted in the attached errata sheet, which includes a minor revision to Exhibit B and corrections to non-substantive typographical errors.

    With that, staff recommends that you adopt the recommendation.

    Commissioner McGrath asked about the public access cost -- is the $100,000 additional cost, leading to $1 million total cost, accurate? Ms. Wolowicz stated yes, this is the estimated price tag.

    Commissioner McGrath noted that this amount was quite small compared to the overall construction project. Has a precedent for such a small fee been set? Ms. Wolowicz responded that there is no set formula in determining a minimum/maximum public access; ultimately, it is the Commission’s determination. Executive Director Travis noted that, when dealing with in-lieu access, it is largely a negotiated position. For this project, about $3 million is within the BCDC jurisdiction. The entire project is about $350 million. BCDC worked with CDCR, who designed an effective project, but it was not ADA accessible. When modified, it would require long ramps that would intrude on secure areas of the prison facility, thus becoming infeasible. BCDC staff felt that getting a third of the project budget ($1 million of the $3 million within the jurisdiction) seemed like a fabulous number but this is ultimately a Commission policy judgment.

    Commissioner Nelson asked about the ferry issue. What is the Commission’s policy/position regarding the ferry terminal that Marin County has interest in? Executive Director Travis responded that, in the Bay Plan it is noted that, “if and when not needed by the state of California for a prison facility, a portion of the site should be considered for a possible commuter ferry terminal.” . The law provides that “within any portion or portions of the shoreline band that are located outside the boundaries of a water-oriented priority land use” -- and this is one of those areas -- “the Commission may deny an application for a permit for a proposed project only on the grounds that the project fails to provide maximum feasible public access consistent with the proposed project to the Bay and the shoreline.” Thus, personal opinions on capital punishment, prison populations, etc. are legally irrelevant for the Commission.

    Commissioner Gioia noted that there has been history at the Commission where they have increased in lieu public access requirements from the staff recommendation. He recalled one that he had suggested that was approved by the Commission several years ago at the Port of Richmond facility. It was a much smaller dollar amount, much smaller facility, when the Commission doubled it, so it is the Commission’s call, and that has come up in the past.

    Commissioner McGlashan commented that it is incumbent on Commissioners that they honor the intent of restoring and protecting the Bay for maximum public access and the kinds of facilities that support that. He further stated that this particular proposal fails to honor the Commission’s commitment to intervene against climate change as well as the commitment to Bay transit such as ferries. He acknowledged the limitations of the Bay jurisdiction, but he doesn’t think approving this permit is the right thing to do. Deep concerns have been raised by citizens who live nearby regarding the appropriateness of the financial commitment that the Commission would be supporting if they say yes to this, and serious concerns about losing a century of opportunity for access at this location for a significant improvement in ferry transit and Bay access. The real issue is the fundamental question about the permit and losing access to ferry transit there.

    Commissioner Lundstrom stated that, as a longtime resident of Larkspur, she has followed this issue closely. Does this proposal meet the criteria of maximum feasible public access? Looking at the other three projects, they are CalTrans projects of road widening, which take a strip of land. To her, those comparisons are not in the same category as this 40 acre site with historic public ownership right on the Bay. This is a very unique project and is not in the same category. She personally cannot make the finding that this proposal meets the maximum feasible public access criteria.

    On the broader point of does it include relevance to the Bay plan, this particular site has, for many years, been considered as a possible ferry site. Specifically for BCDC, does this recommendation provide maximum feasible access? And she would argue no, for the reasons of the comparison with the other project.

    Commissioner McGrath stated that he rode the Bay Trail earlier this week. He noted that the Legislature has recognized that there are certain coastal dependent uses where no access is appropriate. The Bay Plan says “public access to and along the shoreline should be provided in every new development on the shoreline;” i.e. every new development, unless it is clearly inconsistent with public safety. Here we are looking at a decision that will validate that use for 100 years. It will also dramatically alter the land forms. Is it reasonable access? We are looking at about 5,000 to 6,000 feet of shoreline -- how do you get around that on your bicycle? Is public safety assured? Is maximum feasible public access provided? For this application he cannot find that this is so.

    Commissioner Nelson stated that he felt this is a project that requires the Commission to be very careful about distinguishing between the outcomes that are encouraged, hoped for and recommended by the Bay Plan and the Commission’s legal jurisdiction. There are two pieces of the application that trouble him.

    First, with regard to the ferry terminal, we have limited authority over visual access to the Bay, and yet BCDC requires applicants to address that in detail and the staff addresses that in detail. We encourage the public to testify on the visual access issue. We haven’t heard from the various parties involved regarding the significance of losing this site to a terminal. As a Commission, I don’t think we have discharged our responsibilities yet; we have more due diligence to do on this site.

    Second, with regard to maximum feasible public access, he agrees with the Commissioners that have previously spoken today. As Commissioners, we need to consider the impact of a project -- both the impact of losing public access on a piece of the shoreline and the duration of that loss. This is one of the more significant projects in terms of lost opportunities. A key piece of the Bay shoreline will be lost for a century or more. Thus, this is a particularly significant project in terms of its impact and, when making a determination on maximum feasible public access, evaluating the scale and duration of that impact is important. Bearing that in mind, he doesn’t feel that it is possible at this point to make a finding of maximum feasible public access and thus he can’t vote for the application.

    Commissioner Carruthers stated that, with regret, he is inclined for personal reasons to abstain from a vote. He has been out of the state for a month and doesn’t feel prepared to make a decision today.

    Commissioner Gioia stated his agreement with previous speakers and the issues raised regarding the maximum feasible public access issue. The Commission’s jurisdiction is within 100 feet of the shoreline area and it is unclear to him -- if there was not a permit granted by BCDC, is it possible for CDCR to revise their project so that it is totally outside the shoreline band and thus they never return to BCDC for a permit? Mr. Sleppy responded that they have a big investment in San Quentin, there is a big job base there, and they think it’s a good idea to keep it there. If they can’t get guidance today they may have to consider changing the building plan to retreat from the 100 foot area. This has to be built. There are people at risk every day in a very dangerous setting. There is no other place to put the condemned inmates in California. There is no magic bullet.

    Commissioner Gioia asked staff’s opinion about whether or not the project can be redesigned outside the shoreline band? Bob Batha responded that they are not prepared to answer that question today. They would need to go back and talk to CDCR about it. Executive Director Travis noted that changing the project to be located outside the Commission’s jurisdiction might be very difficult.

    Commissioner Gioia commented that he is troubled because, ultimately, he is in agreement with the issues raised by other Commissioners, but he wanted to raise the issue of what might happen if the project is considered from the perspective of being outside BCDC jurisdiction. The Commission has seen this scenario before.

    Commissioner Vierra asked about the actual location of the ferry terminal. Her understanding is that the location is within the existing property of CDCR so the public would only be able to use this location in the future if San Quentin moved its location?

    Commissioner McGlashan stated this is not actually correct. The county’s position is that San Quentin doesn’t need to be closed. What should happen is the general prison should continue going and the condemned inmate housing prisoners should be integrated into other facilities or into the general population at San Quentin. That would allow public utilization of the area with the abandoned buildings (that was the former San Quentin boot camp area). Mr. Sleppy noted that CDCR has strong disagreement and a reservation about the characterization of being able to mix the land uses there at San Quentin. San Quentin has a secured boundary by having officers keeping an eye on people climbing over a wall. They can’t suddenly have people getting on/off a ferry right next door. There are a lot of security concerns and CDCR has never concurred with the ferry plan as being possible to implement.

    Chair Randolph noted that Mr. Sleppy had stated that the funding that’s currently in the proposal is currently in CDCR’s approved budget. What scope does he have for increasing that funding?

    Mr. Sleppy responded that there is a series of line items added together; a single line item -- “BCDC access permit, $1 million” -- is the only detail about it. This follows from an earlier proposal to develop public access on Main Street at an estimated cost of $932,000. Nowhere else in the budget is there a place to put this cost. There are many as-built conditions that are very challenging and they don’t like to start saying “well, we can take some money here, we can take some money there” and suddenly not be able to do the project. If there was a request for a significant increase they would need to go to the Department of Finance and see how they feel about that. It’s really their money, not our money, as well as if it’s big enough then it goes back to the Legislature. We have a million; we can do what the staff recommends, we have no issue with that.

    Commissioner Balico asked if staff had been in touch with the Water Emergency Transportation Authority (WETA) in reference to the location of the ferry? Ms. Wolowicz stated no. Commissioner Balico stated that there seems to be a lot of unanswered questions and perhaps the Item needs to be moved to a future Agenda to get those questions answered.

    Commissioner Nelson noted that he understood that the applicant is eager to build the facility. But it’s not clear to him that it is impossible to maintain the existing facility and maintain appropriate security between a ferry terminal and the existing facility. If it truly is impossible, then he welcomes the thoughts of WETA regarding whether it should be eliminated as a priority site for a ferry. He stated that this is another example of why the Commission needs to investigate the issue more thoroughly.

    Mr. Sleppy responded that CDCR is very uncomfortable about a conclusion regarding the compatibility of these two land uses, regardless of where the condemned inmates are eventually placed. The ferry brings a land use inside their secure perimeter.

    Commissioner McGlashan observed that it has not been explored; i.e. whether the land use is doable. But Marin County has been asking for five years for an answer to those questions. To lose something for a century is a lot to give up without doing the adequate due diligence.

    Commissioner Bourgart asked what differences, if any, would occur if CDCR did redesign to move outside BCDC jurisdiction? And what would that mean to public access? Mr. Sleppy noted this would require some modifications and the public access would be ascertained after the modifications. In addition, it would be awkward for CDCR to write a check to BCDC if these modifications were made.

    Commissioner Carruthers asked how the parties feel about the idea of holding the Item over until the next meeting? He stated that he would probably feel prepared to vote at that time.

    Mr. Sleppy stated they were in full agreement with that and would support it.

    Executive Director Travis noted that they would consult with WETA. He cautioned that, after consulting with them, if WETA thinks this is the best place in the entire Bay Area for a ferry terminal, staff will still be limited to making a recommendation to the Commission regarding whether the public access is the maximum feasible. That is the issue staff must focus on. They are constrained by law in what they bring before the Commission.

    Commissioner Wieckowski asked about the status of the stormwater outfall -- what the condition is and what the environmental improvement might be? Mr. Sleppy responded that it is simply an unimproved ditch that comes out now and they will make it look nicer and get some sediment out of it. It is a standard, very modest outfall.

    Commissioner McGrath stated that there may be ways to make the project maximum feasible public access, but they are not here yet.

    Commissioner Lundstrom commented that perhaps they are at a point where more reflection is needed and the vote should be put over for three weeks or someone should make a motion.

    Commissioner Gioia noted that there is consensus that the public access is not sufficient and one direction to staff is the need for additional discussion and exploration of maximum feasible public access, either onsite or in-lieu offsite. Chair Randolph agreed that there should be a holding over of the vote to the next meeting but did not specifically agree on the balance of that paragraph; i.e., that the public access offering was adequate. Also, Mr. Sleppy was asked if he agreed that the vote should be held over, and he agreed to the deferral.

    It was agreed that the Item would be held over until the next meeting, scheduled for February 5, 2009.

  9. Public Hearing and Vote on Permit Application No. 1-08 from the San Francisco Bay Area Water Transportation Authority (WETA) and the San Mateo County Harbor District (SMCHD) for the Proposed South San Francisco Ferry Terminal at Oyster Point in San Mateo County
    Chair Randolph noted that Item #9 is a public hearing and vote to construct a new ferry terminal in south San Francisco. Ming Yeung presented the staff report and recommendation.

    Ms. Yeung noted that the site is designated as a waterfront park priority use area in the Bay Plan, with provisions for a possible ferry terminal. The project would result in removing about 18,800 square feet of recreational boat docks from the Bay and placing approximately 13,980 square feet of Bay fill for a new ferry terminal. In total, the project would result in a net increase of 4,900 square feet of open Bay surface area.

    The project also involves dredging approximately 19,300 cubic yards of new material from the east basin of the marina to accommodate the ferry and disposing of the dredge material at the Alcatraz disposal site. The project would result in approximately 5,300 square feet of new public access in the form of a viewing terrace and ferry pier in the Commission’s jurisdiction; and 6,630 square feet of improved public access pathways outside of the Commission’s jurisdiction.

    The Commission should consider if the project, as proposed, would be consistent with the Bay Plan’s waterfront park priority use designation at the site and the Commission’s law and policies regarding filling the Bay, public access, natural resources, dredging, and transportation.

    Mr. John Sindzinski, Planning Manager, WETA, and project manager for this project, noted that this is the first new public ferry in many decades and they are excited to move forward with the project.

    Boris Dramov, from ROMA Designs, gave a presentation that introduced the Oyster Point Marina site. There are over 40,000 employees in the area. Major users include Genentech. A recently proposed life sciences campus will be directly adjacent to the business park, which will add a significant amount of new employee development.

    There will be people coming predominantly from the East Bay to jobs within the City of South San Francisco. It is a landfill site and careful consideration was given to that fact.

    There will be a number of direct improvements in support of the terminal. An existing trail will be widened from four to ten feet. They anticipate a large number of people who will be walking and bicycling to and from the Terminal. In addition, there will be designated public access parking spaces and bicycle lockers. There will be improvements for the shuttle connections, which will be provided by the Peninsula Congestion Relief Alliance, which will connect the riders directly to their place of employment.

    In order to build the project, two existing marina berthing areas will be demolished and the area dredged.

    There was a specific desire to build the terminal in a manner that would provide for the necessary waiting area, any potential requirement for screening of passengers, and that both extended the terminal out into deeper water and in a way where none of the piles would go through the capped landfill and cause leachate.

    The ferry terminal would be publicly accessible at all times when the ferry service is operating. It will be built to address sea level rise at the site. About 12 benches will provide additional accessibility to viewing of the Bay.

    WETA and the city were very interested in weather protection and the ferry terminal itself is designed to provide a shield from the strong westerly winds. In addition, natural ventilation is provided for the hotter days.

    Commissioner McGrath asked a series of questions: what is the area to be serviced, the service status of the shuttle, the size of the ferry, and what is public parking currently? Mr. Sindzinski responded that service will be exclusively from the east bay to South San Francisco. There will be no service from South San Francisco to the City of San Francisco at this time. Peak period service will probably be 3 to 5 trips each way during each of the two peak periods. They estimate about 1,000 passengers daily at build-out. The funding for operation of the services will come in large part from county sales tax. Also, the boats will carry at least 35 bicycles. The boat has a capacity of 199 people.

    Commissioner Nelson asked if the existing public parking in the area will be restricted in any way. Mr. Sindzinski responded that he doesn’t believe the existing parking will be restricted.

    Commissioner Moy suggested that the Design Review Report be part of the staff report in future to allow more feedback time.

    Commissioner Lundstrom asked about the dredging -- how often will the area need to be dredged and in what quantities? Mr. Trivedi responded that the shoaling rate is about 20 years in Oyster Point. Different basins are dredged approximately every 10 years. Project depths for the marina are 8 feet below mean lower low water level. In terms of shoaling there may be a higher frequency than in the past, as the entrance will be wider, and this will help with the navigation of the ferry itself. Shoaling will go from eight foot maintenance to 10 foot maintenance. The total amount of dredging is about 20,000 yards.

    Commissioner Carruthers asked where the boundary of the fill and clay cap is relative to the shoreline? Also, how will the wake of the ferry affect that? Mr. Sindzinski noted that all of the boats are dual hull catamaran boats, designed to be low wake boats. The wake that will be created inside the marina will be less than that of a pleasure craft going through there. Mr. Dramov added that the terminal is designed for the maximum level of projected sea rise and will be raised only once in a 50 year timeframe. At that time additional fill will be used as needed.

    Commissioner Hicks asked for clarification of the pier structure. Mr. Sindzinski responded that the structure is fully covered and will be open at all times that the ferry itself is open. The pier structure capacity is sufficient to hold one and a half times the ferry capacity. There are no bathroom facilities on the structure, although the ferry boats have restrooms.

    Chair Randolph asked if part of the long-term plan is for the terminal to serve commuters who traffic to south bay or San Francisco? Mr. Sindzinski responded that originally the ferry was designed to have a triangulated route from east to south SF to SF. There was a subsequent request by the city to defer the south SF to SF service as there is already Caltrans, SamTrans and BART service. Also, there are different expectations about the development of the Oyster Point area in terms of future land use. From a transit landing perspective this location is quite remote and makes perfect sense as a destination but less sense as a transit origin site.

    Vice Chair Halsted asked about the oysters at Oyster Point. Mr. Sindzinski noted there are about 18,000 non-edible oysters at Oyster Point. They do expect an effect on the oysters during the dredging phases and they will probably need to do some substrate work and help grow oysters again in the area after dredging.

    Chair Randolph asked if there were requests to speak from the public. Hearing none, he entertained a motion to close the public portion of the hearing.

    MOTION: Commissioner Carruthers moved, seconded by Commissioner Gordon, to close the public hearing portion of the Item. The motion carried unanimously.

    Ms. Yeung, Commission staff, noted that on January 9, 2009 Commissioners were mailed a copy of the staff recommendation, which recommends that the Commission authorize the new ferry terminal. The public access provided by the project would include a new viewing terrace with seating, interpretive signage and expansive views of the Bay; and a portion of the enclosed ferry pier to provide a sheltered area for the public. In addition, the permittees would make pathway improvements to connect the ferry terminal with existing Bay trail paths and provide bike lockers, public access parking, signage and landscaping at the sight. The staff recommendation contains various special conditions that require the permittees to adopt a variety of measures to address the Commission’s Bay Plan policies. One condition requires the permittees to maintain public access areas or improvements damaged by future flooding by raising land elevations or redesigning access features to ensure the use of these areas and improvements in the future. Conditions have also been included to minimize the project’s impacts on fish and wildlife, including those regarding dredging, pile-driving and others requiring an oyster monitoring survey in consideration of a study on ferry vessel impacts on rafting water birds.

    As conditioned, the staff believes that the project is consistent with the Commission’s law and Bay Plan policies regarding park priority use, Bay fill, public access, natural resource, dredging and transportation, and recommends approval of Permit.

    Commissioner McGrath recommended a slight change to page 13, third paragraph, which currently states “the ferry terminal is expected...” and etc.; add the following language: “according to the applicant studies, 40,000 jobs are located within a one mile walk of the terminal, and of the total estimated ridership of 1,000 people per day only about 20 are expected to travel to the east Bay.”

    The applicants concurred with the recommended change listed above.

    MOTION: Commissioner Moy moved, seconded by Commissioner Lundstrom to vote in favor of the staff recommendation.

    VOTE:The motion carried unanimously with a roll call vote of 19-0-0 with Commissioners Vierra, Balico, Bourgart, Gioia, Goldzband, Gordon, Carruthers, Lai-Bitker, Lundstrom, Addiego, McGlashan, McGrath, Moy, Nelson, Reagan, Kato, Wieckoeski, Vice Chair Halsted and Chair Randolph voting “YES”, no “NO” votes and no abstentions.

  10. Briefing on Delta Vision Strategic Plan
    Phil Isenberg, Chair of the Delta Vision Blue Ribbon Task Force, gave the briefing on their strategic plan for the Delta. He began by noting that some of the Commission members have been frequent participants over the last two years during the planning process. He thanked them for the enormous amount of time they have spent on the process.

    Governor Schwarzenegger, in late 2006, issued an Executive Order creating the Delta Vision process. It was an attempt to corral literally dozens of entities conducting studies of the Delta and bring it into some coherent view and balance. In early 2007 seven people, including himself, were appointed to the Delta Vision Task Force. The Governor stated that it was to be an independent commission that would prepare an independent analysis.

    The Delta is an intersection of water, eco-systems, politics, economics and controversy. It is unique because the largest water export system in California is fundamentally run through the Delta. The Governor asked the Task Force to develop a vision and then a strategic plan to implement that vision. The plan was submitted in October 2008. All the recommendations were made unanimously.

    First, the water supply in California is static; it is not growing. 97% of all water that comes into the state comes from rain and snow. There are 120 years of records of rain and snowfall and there are immense variations from year to year. The average stays flat, except that the last 30 years are the wettest in the 120 years.

    Second, to the extent that the facts are clear (and they are really insufficient), although there have been modest improvements in per capita use of water, growing population and the growing demand for water far outstrips the savings that have resulted. We have tentatively concluded that California is only periodically serious about conservation, and this is true statewide.

    Third, the Delta is “going to hell.” No one who testified to the Task Force disagreed with that assessment. Everyone has a different idea as to why that is, but it is based on a variety of things:

    1. It is subject to increased levels of risk from earthquakes, floods, and other factors.
    2. Sea level rise is coming. By the year 2100 a rise of about 55 inches is not impossible; by the year 2050 about a 16 inch rise is likely. These are estimates, but the potential flooding of Delta-surrounded land means an additional 250,000 acres may be subject to tidal flooding.
    3. Less and less freshwater is coming into the Delta.
    4. Solving or helping to address the problem of the Delta ecosystem is a legally required condition for the export of water from the Delta or the upstream use of water in Delta watershed .
    5. Urbanization pressures are increasing.
    6. There are over 200 government agencies, including BCDC, that have something to do with the Delta. The governance system lacks clarity and cohesion.

    He compared what his Task Force recommended with what the Cabinet Committee, chaired by Mike Chrisman, Secretary of the Resources Agency -- that was set up in the Executive Order at the same time -- recommends. The Cabinet Committee was tasked with taking the Task Force recommendations and developing an implementation plan, to be forwarded to the Governor.

    The Task Force had seven basic goals for management; the Committee agreed with those. The Task force had 22 strategies; the Committee agreed with 20 of them. They didn’t agree with two of them because they decided they would study them some more. The Task Force had 73 actions recommended; the Committee said yes to 43, opposed one, were unclear on 26, and never talked about three. The Committee then changed all the due dates for implementing the actions.

    Page two of the Task Force report gives the first strategy -- they think the mold should be broken regarding all the promises made to all the various regions connected to the Delta. The notion of a co-equal goal of restoring the Delta ecosystem and providing a more reliable water supply for California appeals to everyone. It is important to say that; the Committee agreed.

    The next strategy notes that the Delta has a complex array of interests. We should apply for a National Heritage status, which will help in a number of ways. Also, we should promote market strategies that emphasize agriculture, which is the usage of land that is probably the most consistent with maintaining an ecosystem.

    A regional economic plan should be developed for the Delta. There should be a Delta investment fund.

    The Task Force tried to develop broad categories and themes that might fit as a definition for an ecosystem, understanding that once something is defined, you have put boundaries around it, which precludes someone responding to the question of “What do you want” with the answer “More!”

    On the Delta flows and standards, they pushed hard for the notion that there has to be a standard set on Delta flows. The Water Board has tried twice in the last 25 years to set those standards; both times they have been halted essentially by litigation.

    All of these things are deeply controversial because they suggest that the uses of water have to be adjusted in order to provide more water at some times for the ecosystem, which is a politically explosive idea. Mr. Isenberg was especially pleased that the Cabinet Committee agreed with that.

    The Task Force stated that the state has to be tougher on water quality standards, including discharges. The Cabinet Committee agreed.

    Conservation and system efficiency will be the source of one-third to one-half of all available water in the future. Since the water supply is static, it either has to be bought or you take it from something or somebody.

    Mr. Isenberg thought that the Governor was being surprisingly aggressive when he said there has to be a mandatory savings of 20% per capita use by the year 2020 -- the first Governor in history to say anything like that. This painful savings process is now just starting.

    The Task Force also thinks that regional areas should be more self-sufficient in water use, to the extent possible. There is a belief that the state provides all the water or the feds do; in fact it is a mix. There is no way to get through the next 30-50 years and do some of the things they want to do without an expanded and extensive conservation.

    The next goal is facilities. The Task Force does not think the future of California holds a cutoff of water exports from the Delta to anywhere. There will continue to be water exports but there probably has to be decreased reliance on exports. Thus, the existing system needs to be improved.

    The pumping in the existing system is doing terrible damage to species.

    They prefer a dual conveyance system, which would transport water both through and around the Delta. The Cabinet Committee made the same recommendation. Central Valley flood management needs to be integrated with this.

    The next goal deals with the risk issue. The Paterno lawsuit, which cost the state over $500 million, dealt with the premise that the state is co-equally responsible for flood damage. This means that the issues of levees, floods and land issues are of direct importance to all taxpayers in California because a stupid decision or an unprotected piece of property has exposure. There are 1,100 miles of levees in the Delta. This is also why land use planning is so important.

    Another important idea is trying to change public perception and attitudes about risk assessment, especially relating to flooding.

    Lastly, there should be a new, independent governance body with the duty to pursue the co-equal goals of protecting the Delta ecosystem and guaranteeing a more reliable water supply. The object should be to develop a plan to achieve these results and require that state agencies conform to the plan, and allow the independent governance body to determine if they conform to the plan.

    This governing body should be appointed by the Governor and confirmed by the State Senate. Appointments should not be based on geography and interest groups; i.e. the environmental movement gets one vote, delta economy gets one vote, etc. -- because this is the status quo that stops any collective things from being done. It should also take over the CalFed authority.

    How do we get the feds to cooperate with what we’re doing? The Coastal Zone Management Act is the closest prototype the Task Force could find to coordinate planning that is, although imperfect, not bad between federal and state agencies. So setting up the governing body with an equivalent statute to the Coastal Zone Management Act probably makes sense.

    The new governing body has to be financed. Water is like a utility and the ecosystem has to be financed in a way that includes public participation. Thus, revenue bond authority and fee-setting authority should be given to the new body.

    The Task Force also thinks more clear information on water use is needed -- it’s not just agriculture. There has to be an accounting of water use.

    The Water Board produced a paper on water rights for the Task Force. It says that, as best they know, there are 6,200 water rights in the Delta watershed. A lot of them are big -- PG&E, the State Water Project, the utilities, etc. The cumulative total of all water rights granted in California history to date exceeds the average annual flow in the entire Delta watershed by a factor of 8.4. Comparing the water rights on paper to the highest recorded flows in the Delta watershed, it exceeds that by a factor of three. The paper states that the state has over-promised to everyone, not just the water users.

    Commissioner Carruthers noted that the San Jose Mercury News, in the last week, had an article about some agency proposing construction of a dual conveyance system. Mr. Isenberg stated that he also saw the article, which is referring to the Cabinet Committee agreeing with the Task Force’s recommendation. But no one knows where the proposed peripheral canal could go, what the size should be and how much volume should go through it.

    Commissioner McGrath complimented Mr. Isenberg on his presentation. He asked about the cost question. As water prices have gone up, agriculture has been transformed. What are the political prospects of a Delta withdrawal fee -- something that reflects a more efficient way of trying to promote an arid culture? Mr. Isenberg responded that the political possibilities of overturning water policy are not high. In fact, the Legislature couldn’t even get a majority vote on a bill to respond to the Governor’s call for a 2020 conservation goal. However, there is a slowly growing change of attitude about all this.

    One of Mr. Isenberg’s goals is to have people tell him in public at least some of the things they were telling him privately, and he was marginally successful. People are always more conciliatory in private than in public; if they say more pragmatic things publicly then it becomes the floor for their opponents to badger them.

    Commissioner Nelson stated that the Task Force did a remarkable job of putting forth their vision for the Delta. It is, however, a plan without authority. And now the debate moves into the agencies and into the Legislature. Mr. Isenberg responded that the Task Force found very clearly that the agencies are broken and need to be reformed. The agencies then responded that they weren’t entirely sure that they were broken. Mr. Isenberg further commented that they didn’t like the way things are working but they are pretty sure they don’t want to give up any authority to anyone else and they’d like to have more money to hire more people to do the work. It makes them uneasy to think about change.

    Commissioner Nelson commented that one of the reasons the courts have been increasingly running our water projects and flood management and land issues in the Delta is because some agencies are doing such a bad job. He then asked What are your thoughts about how the logjam in the Legislature can be broken so that legislation can be passed; and what happens if we don’t break the logjam?

    Mr. Isenberg responded that if nothing happens again then you will find the Judge Wanger increasingly using the cases in front of him to make mandatory observations on flows that have to be required at some point in some time. But the judge would like to have agencies, like the Water Board, step up and start setting flow standards that could then be evaluated. A forum needs to be set up that will allow these issues to be addressed.

    Commissioner Nelson asked if Mr. Isenberg had a sense yet of whether or not the Bay Delta Conservation Plan (BCDP) process will tackle the questions about a Delta facility (a peripheral canal or some other conveyance facility) before making a final decision. Mr. Isenberg noted that the BDCP wasn’t set up to deal with governance per se. Their scope has broadened slowly over the 3-4 years of their existence. Eventually they will use the Task Force definitions and categories on ecosystem and other things.

    Chair Randolph thanked Mr. Isenberg for his presentation and noted that the historical northern/southern California split about water is not a split within the business community. There is an increasingly close alignment between business leadership in both northern and southern California around the kind of vision Mr. Isenberg articulated. The conversations among the business leaders have been long and deep.

  11. Consideration of Strategic Plan Status Report.Executive Director Travis asked that the full report be postponed until the next Meeting.

  12. New Business
    There was no new business.

  13. Old Business
    There was no old business.
    Following Executive Director Travis’s comments, Chair Randolph entertained a motion to adjourn.
  14. Adjournment
    Upon motion by Commissioner McGrath, seconded by Commissioner Baird, the meeting adjourned at 4:45 p.m.

Respectfully submitted,

WILL TRAVIS
Executive Director

Approved, as corrected, at the San Francisco Bay Conservation and Development Commission Meeting of February 5, 2009

R. Sean Randolph, Chair