Minutes of September 1, 2011 Commission Meeting

1. Call to Order. The meeting was called to order by Chair Randolph at the Ferry Building, Port of San Francisco Board Room, Second Floor, San Francisco, California at 1:05 p.m.

2. Roll Call. Present were: Chair Randolph, Vice Chair Halsted, Commissioners Addiego, Apodaca, Baird, Bates, Brown (represented by Alternate Carrillo), Chan, Fossum (represented by Alternate Kato), Gibbs, Gioia, Goldzband, Groom, Jordan Hallinan, Hicks (represented by Alternate Johnson), Lundstrom, McGrath, Moy, Nelson, Sartipi (represented by Alternate Richards), Sears, Shirakawa (represented by Alternate Carruthers), Wagenknecht and Ziegler. Legislative member William C. Taylor was also present.

Not Present were: San Francisco County (Chiu), Department of Finance (Finn), and Solano County (Spering).

3. Public Comment Period. Chair Randolph called for public comment on subjects that were not on the agenda. Comments would be restricted to three minutes per speaker.

Ms. Liddell commented: My name is Katy Liddell. I am a member of the Rincon Point/South Beach CAC and I am president of the South Beach/Mission Bay/Rincon Neighborhood Association and I speak for our members.

First of all I would like to say thank you very much for your appropriate response to the Draft EIR. The dock proposed for the Rincon Point Open Basin in either temporary or permanent form would destroy one of the great waterfront Bay vistas. And even in temporary form would compromise a prime viewing area of the America's Cup race itself.

Long-terms marinas are at odds with established plans for the waterfront and Bay.

One of the main reasons for holding the America's Cup in San Francisco is so activities can be viewed by a large number of spectators from land. Docking huge yachts and blocking the view from this beautiful location plays completely against that concept.

The Draft EIR assumes that BCDC will change plans to allow for the berthing of mega-yachts at Rincon Point Open Water Basin. From your response it sounds as though you will not do this and we strongly encourage you to hold to that plan. Thank you.

Mr. Anthony addressed the Commission: Good afternoon. My name is Michael Anthony. I am a board member of the South Beach/Rincon/ Mission Bay Neighborhood Association and I just want to amplify on what Katy has had to say.

I believe that two of the greatest gifts to the citizens of our city and to visitors from around the world are the revitalized Crissy Field Promenade and the Open Water Basin at Rincon Point

I support the BCDC's position that a yacht docking facility at Rincon Point should not be built, either in temporary or permanent form, and urge you to maintain that position in finalizing plans for the America's Cup event in 2013. Thank you.

Mr. Lewis spoke: Good afternoon, Commissioners; David Lewis, Executive Director of Save the Bay.

First, Save the Bay is celebrating our 50th anniversary this year with a whole series of events during the year. And I wanted to make sure that all of you save the date for a gala celebration here in San Francisco on the evening of November 3rd.

Secondly, I want to call your attention to a letter that we copied to the Commission and other regulatory agencies. We sent the letter to the Port of Oakland the Army Corps of Engineers regarding the Middle Harbor Enhancement Area Project.

Among the conditions for permitting this large dredging project the Port and Corps were required to create habitat at the middle harbor.

This project was supposed to be pretty far advanced at this point. It is now ten years since the dredging was initiated and there is not much evidence that any progress has been made.

This project never would have been allowed, it wasn't actually legal under the Bay Plan without these changes. So we are asking BCDC to require the Port and the Corps to report on what they've done. If they are not going to be able to accomplish the habitat that was required to be created as mitigation under the permit and the consistency determination they need to provide equal or greater benefit in another way and to pay for it.

Mr. Feinstein reported: Arthur Feinstein speaking just as a San Francisco resident at this time.

I really want to express my appreciation to staff for writing a pretty strong letter about the failure of the proposal right now of the America's Cup to meet the open space requirements that were worked out so diligently with many groups in addition to the City for the shoreline of San Francisco in this area.

Chair Randolph moved on to Item four, Approval of Minutes.

4. Approval of Minutes of the August 4, 2011 Meeting. Chair Randolph entertained a motion and a second to adopt the minutes of August 4, 2011.

MOTION: Commissioner Halsted moved, seconded by Commissioner McGrath, to approve the August 4, 2011 Minutes. The motion carried by voice vote with Chair Randolph and Commissioners Lundstrom, Johnson, Baird and Moy abstaining.

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

a. Departing Commissioner. Commissioner Brian Baird who has represented the California Natural Resources Agency on BCDC for a number of years will be leaving the Agency at the end of this month.

Brian has made significant contributions to the protection and management of California’s coastal and ocean resources during the 34 years he has worked for the State. A few of his accomplishments are mentioned in the draft resolution of appreciation for Brian which our staff has prepared. I would welcome a motion, second and affirmative vote to approve this resolution.

MOTION: Commissioner Goldzband moved, seconded by Commissioner Halsted to approve the resolution. The motion passed by voice vote with no opposition or abstentions.

b. Joint Policy Committee. As you may recall, five members of our Commission represent us on the Joint Policy Committee. Three of these members must be local elected officials. Our current representatives are Geoffrey Gibbs, John Gioia, Brad Wagenknecht and me.

The fifth representative was the late Charles McGlashan. I believe it would be appropriate to have Kathrin Sears, who replaced Charles on the Marin County Board of Supervisors, be the fifth member of our delegation.

Therefore, I would appreciate a motion, second and affirmative vote to concur in my appointment of Commissioner Kate Sears to the Joint Policy Committee.

MOTION: Commissioner Wagenknecht moved, seconded by Commissioner Lundstrom to approve the resolution. The motion passed by voice vote with no opposition or abstentions.

c. Next BCDC Meeting. It won’t be necessary to hold a second meeting this month. Therefore, we will cancel our September 15th meeting and will hold our next meeting five weeks from today on October 6th. At that meeting, which will be held here at the Ferry Building, we will take up the following matters:

(1) We will vote on the fourth revised staff recommendation to amend the Bay Plan to address climate change. We’re holding a public hearing on these amendments today.

(2) We will hold a public hearing and vote on an application to build a new public park along the San Francisco waterfront at Brannan Street.

(3) We will hold a public hearing and vote on whether to initiate the process of considering amendments to the San Francisco Waterfront Special Area Plan to accommodate the America’s Cup yacht races.

(4) We will consider a status report on the progress we are making in carrying out our strategic plan.

d. Ex-Parte Communications. That completes my report. In case you have inadvertently forgotten to provide our staff with a report on any written or oral ex-parte communications, I invite Commissioners who have engaged in any such communications to report on them at this point.

6. Report of the Executive Director. Executive Director Travis reported:

a. Budget. The California budget act that was passed by the Legislature and signed by the Governor in June authorizes the Director of Finance to reduce total appropriated funds by 402 million dollars to balance expenditures with revenue. The Department of Finance has allocated this overall reduction to specific programs and departments.

Our share of the reduction comes to $129,000. So a few weeks ago we had to submit a plan for cutting our expenditures by $129,000 this fiscal year.

Our plan calls for keeping an additional staff position vacant and reducing related operating expenses. While this reduction is bad news, there’s corresponding good news: once our plan is approved, we’ll be exempt from the statewide hiring freeze.

This bodes well for us because we expect to receive additional funding from both the U.S. government and the Dutch government this fiscal year for our work on climate change. We can use this supplemental funding to help offset our reduced state funding and can use the money to add staff to carry out the funded work.

b. Personnel. As I explained to you in June, the state’s hiring restrictions prevented us from adding staff to deal with the additional workload generated by the America’s Cup races even though the City of San Francisco was willing to provide funding to hire these staff.

To deal with this problem, San Francisco provided funds to two of our partners––the San Francisco Estuary Institute’s Aquatic Science Center and the Association of Bay Area Governments.

SFEI and ABAG then hired staff and assigned them to work in our office and work under our supervision. Since these new hires are effectively part of our staff, I want to introduce them to you.

Javier Del Castillo received a BA in Economics from the University of Texas at Austin and a Masters of Urban and Environmental Planning from the University of Virginia. He has worked for a number of environmental non-profits in Washington, D.C., was a HUD Research Fellow at the University of Rhode Island’s Coastal Resources Center, interned at the San Francisco Planning and Urban Research Association, and was a Geographic Information Systems intern at BCDC.

Kevin Kahn received a BA in Geography and City and Regional Planning from UC Berkeley and a Master of Urban Planning from UCLA. He was awarded a fellowship with the UCLA Institute of Transportation Studies, has worked for a planning consulting firm in Berkeley and was a planning intern at BCDC.

Javier and Kevin, who work for SFEI, are part of our planning staff.

Susan Moffat, who is on loan to us from ABAG, works in our regulatory unit. Susan received a BA in history and literature from Harvard, a Master of City Planning from UC Berkeley, and a Master’s in Journalism from Columbia. She was a journalist in Asia with Fortune magazine and the Associated Press, a business reporter for the Los Angeles Times, has developed curriculum for elementary school watershed education programs, has managed affordable housing projects for non-profit developers in the Bay Area, and served as communications director for Greenbelt Alliance.

Also, Kate Nitta has joined our staff as a legal intern. Kate has an undergraduate degree in English from UC Davis and is a second year honor’s student at Golden Gate School of Law.

She has worked on Bay-Delta issues at the Department of the Interior, conducted research on climate change and the public trust doctrine for the Environmental Law and Justice Clinic at Golden Gate, has worked for the Natural Resources Defense Council and for a real estate law firm in Sacramento.

c. Office Lease. On July 21st you concurred with our staff’s assessment that the best option for relocating the Commission’s office when our lease expires in April 2013 would be for BCDC to become a tenant in a building at 390 Main Street, which the Metropolitan Transportation Commission intended to purchase to accommodate its staff along with the staff of the Association of Bay Area Governments and the Bay Area Air Quality Management District.

However, last month MTC voted to rescind its offer to purchase that building, at least for the time being. Therefore, we’ll continue working with the Department of General Services, the state agency that is in charge of finding office space for us, to look for rental space in other commercial office buildings in San Francisco.

d. Staff Reports. I want to call to your attention two memos we sent you recently. The first is an August 19th memo transmitting information on three of the climate change adaptation case studies our staff is working on with Bay Area local governments.

Sara Polgar of our staff and Heidi Nutters, our NOAA Coastal Fellow, can tell you more about our local government adaptation assistance program if you have questions.

The second memo, which is dated on August 26th, describes a new system we have begun using for numbering permits, amendments and other regulatory documents.

This revision is necessary because we are moving to an entirely computerized data storage and retrieval system. Computers have terrific memories, but they aren’t very intuitive. Therefore, we need to be very precise and use a standard and consistent approach when numbering documents. I hope you don’t find this change too confusing and that you quickly get used to the new numbers. If you have any questions about this issue, please direct them to Sandra Sneeringer.

e. National Aeronautics and Space Administration. A few weeks ago Steve Goldbeck and I had the honor of representing BCDC at Ames Research Center where we received achievement awards for working with NASA on resilience and adaptation to climate change risks. We’re most pleased that NASA recognizes BCDC’s leadership in climate change adaptation planning and we’re looking forward to further collaboration with the folks at Ames and their neighbors in Silicon Valley as we work together to develop a regional climate resilience strategy.

Also, as part of our broader partnership with NASA, last week I provided an overview of our regional climate strategic work to the Center for Climate Sciences at NASA’s Jet Propulsion Laboratory at Cal Tech in Pasadena.

7. Consideration of Administrative Matters. Executive Director Travis stated: Bob Batha is available to respond to any questions you may have about the matters on the listing.

8. Public Hearing Regarding Bay Plan Amendment No. 1-08 Which Would Revise Various Sections of the Bay Plan to Address Climate Change and Add a New Climate Change Section. Chair Randolph announced that Item 8 was a public hearing on making revisions to our Bay Plan to address climate change. Joe LaClair will present the staff report.

Chief Planner LaClair presented the following: We sent you a Staff Report, Preliminary Recommendation and Revised Environmental Assessment on July the 29th, so you should have that as well as a memo that, described changes to the language that occurred between the June 2nd workshop and our July 29th recommendation and several letters and emails that we have received commenting on the proposal in the last few weeks.

In April of 2009, staff released a report summarizing the latest scientific information on global climate change and recommending amendments to update the sea level rise findings and policies that had been in the San Francisco Bay Plan since 1989.

Over the past 28 months we have had 35 public hearings, workshops and meetings on the amendment language as it has evolved and today the Commission will hold a public hearing on the fourth preliminary recommendation that staff has prepared for these Bay Plan amendments.

The draft amendment package includes changes, additions or deletions in 64 Bay Plan findings or policies. Outside of those folks who were simply opposed to amending the Plan at all, most people had no objection to about 98 percent of these changes. The other 2 percent of the changes focus on just five issues.

And over the past several months we have had very constructive discussions with the business community, environmental organizations, development interests and local governments to handle these lingering issues, which I'll highlight as I present the staff's fourth preliminary recommendation.

First, BCDC jurisdiction over the Bay's valuable natural resources will continue to have the same level of protection that they have for the past half century.

The staff still recommends that the Commission modify the Tidal Marshes and Tidal Flats policies to call for an update to the 1999 Baylands Habitat Goals for supporting Bay species to address sea level rise and to recast these goals as targets to provide some flexibility in achieving them.

The changes also recognize the importance of sediment in sustaining Bay habitats, especially in light of sea level rise, and recommend pursuing regional sediment management and research.

The proposed changes to the findings and policies recommend that the Commission encourage the region to make provision for marsh migration into upland areas so that rising seas do not significantly reduce marsh acreage, placing greater pressure on endangered species, fish and other aquatic organisms.

The policies clarify how sea level rise should be factored into the design, monitoring and management of wetland restoration, including creating buffers to allow wetlands to migrate.

In the Bay Plan Policy section called "Developing the Bay and its Shoreline" the staff recommends that the Commission add a new "Climate Change" section and update the safety of fills, shoreline protection and public access policy sections.

The proposed climate change findings have been revised to incorporate the sea level rise projections developed by the California Climate Action Team and endorsed by the Ocean Protection Council, recognizing them as the best science-based projections currently available for project analyses.

To deal with any confusion or worries that BCDC is trying to expand its authority and concern that the policies could make it more difficult to gain approval for infill development, the proposed amendments make it explicitly clear that the policies do not apply inland any further than 100 feet from the Bay shoreline.

The proposed amendments suggest that equity considerations should guide choices about where to protect development while promoting overall sustainability of the Bay and our shoreline communities. The amendments exempt projects involving repair and maintenance of existing structures or small projects that do not increase public safety risks from the requirements to assess risks or design for sea level rise. This recognizes the need to maintain facilities and allow projects with relatively short amortization periods, such as park improvements, to proceed under existing evaluation procedures.

The revised findings and policies require risk assessments for large projects in the Commission's jurisdiction. The policies require that large projects in the Commission's jurisdiction be designed to a mid-century sea level rise projection and demonstrate that they can be adapted to an end of century projection.

Risk is a combination of the potential consequences of climate impacts and the likelihood that they will occur. Because the probability of future sea level rise cannot be quantified, these risk assessments will, by necessity, be qualitative rather than quantitative. And, they will rely on the best-available science-based projections of sea level rise and other future circumstances.

Policy 3 intends to set high performance measures for innovative adaptation proposals. We must insist that any proposal to build in an area that is vulnerable to sea level rise has a definitive strategy for dealing with rising water, achieves long-term environmental sustainability, such as consistency with our regional focus program goals, and incorporates adaptive management to deal with uncertainties.

Proposed Climate Change Policy 4 promotes protection of existing shoreline areas that sustain diverse habitats and species or possess conditions that make them especially suitable for natural resource enhancement, such as wetland restoration. This policy also encourages the enhancement of these areas for ecosystem restoration or enhancement.

Policy 5 reflects the Commission's intention to encourage innovative solutions as sea level rises.

And our proposed Bay Plan Climate Change policies call for the development of a regional strategy in cooperation with the Joint Policy Committee, local, state and federal government agencies in a very inclusive public process. This policy statement is a call to action to the region to engage the Commission in developing a broad response that addresses the challenges we are likely to face along the shoreline from sea level rise and storm surge.

Policy 7 clarifies that the Commission will continue to consider all proposed projects on a case-by-case basis to balance the benefits of the project against the risks of flooding. To deal with these flooding risks, the proposed amendments call for innovative planning and design and encourage a wide variety of types of projects that have regional benefits or are unlikely to increase flood risks.

In recognition of the many overlapping jurisdictions along the shoreline, Proposed Policy 8 provides that, where jurisdictions overlap, authorities should endeavor to coordinate project reviews and requirements to streamline the process.

The proposed amendments acknowledge that existing and planned development will need protection from flooding and that the amendments will make it easier to get BCDC approval for levees and other protection devices.

The findings acknowledge that, in some cases, wetland restoration and structural shoreline protection can be part of an integrated strategy and the policies require use of vegetative protection solutions where feasible. The policies also require that impacts from shoreline protection to Bay resources be mitigated.

The proposed revisions to the public access findings and policies recognize that sea level rise will have negative impacts on existing public access such as damage from flooding and that some shoreline protection could impact public access. The proposed policies provide that public access required of projects should be designed to avoid the impacts of sea level rise and remain viable for the duration of the project or alternative access be provided.

Finally, we will be updating our background report, "Living with a Rising Bay" to reflect relevant scientific information that has been published since April 2009, and to respond to the comments that we have received on this document over the last two and a half years.

In summary, the proposed amendments do not call for a surrender and retreat strategy as some have suggested. Instead they support protecting both the Bay and the communities around the Bay by retaining state authority over Bay resources and local government authority over planning and land use regulation inland from the Bay shoreline.

We welcome your questions and comments on our proposed recommendation. Thank you.

Chair Randolph moved to public comment. The first speaker addressed the Commission:

My name is Louis Blumberg. I direct the California Climate Change Program for the Nature Conservancy. We have 100,000 members here in California and we have been working for many years to promote nature-based solutions to climate change.

BCDC's decision some two and a half years ago to craft a Bay Plan Amendment to address the impacts of climate change and sea level rise within its jurisdiction was courageous, precedent setting and prescient, as we have seen local and state agencies increasingly taking up this issue and developing their own policies.

The Nature Conservancy was here a year ago and publicly supported the draft Bay Plan Amendment last September.

The Plan provided an appropriate role for wetland conservation and natural resource protection and was built on a comprehensive, scientifically sound staff report.

However, the role of conservation and the level of protection afforded to ecological values has become increasingly eroded, and we believe, with inadequate justification. So today in its current form we cannot support the proposed Bay Plan Amendment.

This lengthy process does not reflect our recommendations nor adequately address our concerns. Nor do we feel it reflects a reasonable debate. We think too much emphasis has been devoted to responding to misinterpretation and misrepresentation of the objective, scope and potential impacts of the policy proposed in September.

We believe the Plan should clearly prioritize nature-based adaptation to climate change. Development should be discouraged in undeveloped, vulnerable shoreline areas subject to inundation to future sea level rise that would require shoreline protection.

This is the policy in the California Adaptation Strategy and we believe this current draft does not specifically incorporate the state Climate Adaptation Strategy; rather it defers to the Ocean Protection Council.

It also undermines the role for conservation in many places. It inappropriately restricts the scope of application in regards to the coastal zone management in CEQA and it defers too much to an ad hoc regional planning process.

We must remember that the laws of chemistry and physics on the planet are not influenced by prevailing priorities in our public policy. Sea level rise is inexorable for decades. In conclusion, we are disappointed in the plan before you today. It is a missed opportunity. I am resubmitting our previous letter from December with our detailed recommendations. Thank you.

Ms. Gail Raabe commented: I'm speaking on behalf of Friends of Redwood City this afternoon. We appreciate this additional opportunity to comment on the proposed climate change amendment.

The amendment must provide clear direction on what should be considered in these deliberations, especially during the interim period before a regional Sea Level Rise Adaptation Strategy is in place.

If the Commission is looking for a balanced amendment, Policy 7, which provides interim guidelines for evaluating proposed projects, does not meet that objective. As currently written Policy 7 explicitly directs the Commission to encourage certain types of development projects listed in Sections A, B and C while providing no direction to also consider a project's current or future impacts to the Bay ecosystem, including loss of ecosystem enhancement opportunities.

We believe this is a significant oversight that undermines the Commission's effort to craft clear and effective interim guidelines that are consistent with the other policies in the Climate Change Amendment.

In the interest of consistency, balance and clarity we recommend that the Commission consider the following change to Policy 7:

First, where Policy 7 directs the Commission to evaluate each project on a case-by-case basis to make specific determinations we recommend adding the phrase "to determine if there is significant habitat or potential for Bay ecosystem enhancement at the site." And where Policy 7 states that specific types of projects should be encouraged we recommend adding the phrase "If they do not negatively impact the Bay."

Ms. Gwenythe Scove commented: I live in Redwood City and I have attended a few of these meetings and spoken about the Bay Plan Amendment over the past couple of years.

I believe that your responsibilities in adopting the Bay Plan Amendment are to protect the Bay and wetlands from any further degradation and development in areas prone to rising sea levels and to protect the public by discouraging development of low-lying lands in the path of certain flooding due to sea level rise.

It is painful to watch so much effort and diligence on everyone's part result in such a watered down document full of inconsistent language with no clear direction when it comes to development of low-lying areas that will be subject to flooding.

Regarding Policy 7, please consider removing all ambiguous language, such as that found in Section (r) Part 4 which suggests that it is okay to build in low-lying areas, re-dike our former marshes, as long as development is clustered. This policy then goes on to suggest that the public will have to provide flood protection for such development in the future, whether public or private.

Such ambiguous language creates poor public policy and reflects poorly on agencies that are charged with enforcement.

Mr. Greg Cochran stated: I'm the Chair of the Peninsula Coalition of San Mateo County here and also the former director of the South San Francisco Chamber of Commerce, home to the biotech capital of the world, the largest concentration of biotech companies anywhere in the world.

The revised amendment represents a genuine compromise that calls for caution and careful scrutiny of proposed development in low-lying areas where acknowledging that new, private investment will be an essential part of protective solutions.

The revised amendment puts off formation of a true regional strategy for identifying what property needs to be protected, how to protect it and how to pay for the protective measures.

Concerns over local control over development remain because the revised amendment still takes the form of a set of interim land use policies and advice that could lead to conflict and uncertainty.

To adopt a regional strategy regarding sea level rise in the Bay area, we recommend that BCDC, plus the Association of Bay Area Governments, MTC, the Bay Area Water Control Management District and federal and state local governments plus stakeholders from the private sector, including property owners, organized labor, business associations like the Peninsula Coalition, environmental advocates, all have a say in adopting a regional strategy.

Mr. David Lewis spoke: I'd say we're relieved and disappointed in the draft before you. I'm relieved that after two years of scare tactics and stalling maneuvers and lies, fueled mostly by a few deep-pocketed developers; BCDC is still moving ahead to try to adopt climate change policies, which are needed and overdue.

And relieved that more than $350,000 that we know of in PR and lobbying campaign spending just from one developer, has left BCDC's policies battered but still breathing. And I think that's thanks to the hard work of many commissioners and staff.

But we're also disappointed that the draft before you is weaker and provides less clear guidance than what most of you wanted to adopt a year ago. Before you agreed to delay and invite developers, potential permittees and their lawyers into the room to take an active role in rewriting it.

DMB, the home builders and their allies deliberately tried to scare cities about a BCDC land grab and retreat strategy. They have never recanted; they have never apologized. They have never admitted that they lied to try to damage this Commission, even after the Chair and Executive Director itemized those erroneous attacks. So, if they change their spin today and tell you that they now support this watered down policy it's actually because in the end, a few of you stood up to them and refused to weaken it any more.

But they ultimately failed in their true goals, to stop BCDC from one of your routine functions, updating your Bay Plan language. They failed to make this policy an engraved invitation for particular developments in vulnerable areas. And they failed to deny that sea level rise means we must change our approach to protecting people and wildlife on the shoreline.

This policy still acknowledges the California Climate Adaptation Strategy in passing, which says that undeveloped vulnerable areas with habitat or restoration potential should not be developed. And this policy doesn't prohibit or guarantee approval of any particular project, but it was never going to. You've always dealt with permits on a case-by-case basis.

So the developer's campaign brought them a few commas, some vagueness and Policy 1's sort of embarrassing declaration of non-jurisdiction, but the amendment survived.

But our standards and aspirations should be higher, and so should yours. We need BCDC leading our region on climate adaptation, not establishing what is the lowest common denominator that we can just get passed; you can do better.

So we're asking you again in our letter what we've asked you before, do the right thing and direct the staff to improve this draft to make it clear and give more useful guidance to local communities who need to avoid putting more people at risk and need to protect the Bay habitat we still have. We associate ourselves with the comments from the Nature Conservancy and Friends of Redwood City among others, in addition to the comments in our letter.

If you don't do this, I think you're missing an opportunity to fully pursue your mandate, to tell the unvarnished truth to the community and to keep this agency at the forefront of protecting the Bay shoreline in an era of climate change. Thanks very much.

Mr. Louis Franchimon commented: I am the business manager for the Napa-Solano Building Trades Council, and I am here today representing the entire Bay Area Councils who surround the San Francisco Bay. We have a membership of over 100,000 union construction workers; half of them are out of work right now.

We the trades do still have some issues with the proposed amendments. Undefined terms such as "small project, large shoreline project and regional benefits," we are concerned that this close scrutiny might discourage development and cause us to lose more jobs instead of create them.

Ms. Barbara Salzman stated: I am representing the Marin Audubon Society. And I too wanted to thank the Commission and the staff for many years of work on this.

We supported this somewhat reluctantly because it has some improvements in it, it has some positive policies, it also has some conflicting and weak policies, which we would urge you to focus on and take this as a last opportunity to change and make some needed changes.

The first concern we had is about Finding W; a recommendation to consider prohibiting projects; it would place development in harm's way and in critical habitat. There are policies stating special consideration, there is nothing prohibiting development. So we would urge you to take that recommendation from the Climate Adaptation Strategy and add it to the policies.

The second one is about Climate Change Finding S, which places a clear priority on regionally important development over regionally important ecosystems. Now to us, the most obvious regionally important ecosystem are ecosystems that support endangered species.

As we read the policies and the findings related to habitat priorities under development is that you were basically allowing, or perhaps even encouraging development in endangered species habitat. And that's extremely troublesome.

It isn't just a matter of regionally important habitat, endangered species habitat is nationally and internationally important, and they're protected by federal law. So that's something we think that slipped under the table. It slipped by everybody.

Climate Change Policy 7 encourages housing and employment in your jurisdiction. But to be recommending housing and employment in your jurisdiction seems way out of line.

And lastly the Safety of Fills Policy 4. They’re valid of course, but how effective they’d be is another issue.

Mr. David Smith commented: I'm with DMB Associates and we thank you for the opportunity to talk to you today.

To date DMB has been on record opposing adoption of the proposed amendments. But, based on the July 29, version we are withdrawing that opposition.

For those not familiar with DMB, we look for large-scale opportunities to pair integrated communities with landscape-scale conservation efforts. We're active throughout the western United States and we're in the process of examining several such opportunities in the Bay Area, the most public of which is our Saltworks Project in Redwood City.

We'd like to commend BCDC for their proactive efforts in calling attention to the potential consequences of sea level rise for San Francisco Bay.

In particular, we appreciate the staff and Commissioners' willingness to listen and consider the comments of the broad array of stakeholders who have commented during this process, including landowners, local government, business and others.

From DMB's perspective the Bay shoreline is not only the focal area of concern for this issue, it will necessarily be the source of the solution. Whether a given area is appropriate for landward migration of the Bay or structural protection must be made based on that particular area's existing and potential future characteristics.

Our concern with earlier versions of the proposed amendments was that they appeared in our analysis to prejudge certain types of areas sight unseen as to what their future should be. But in the July 29 version of the proposed amendments it appears the approach has moved away from advanced presumptions to case-by-case scrutiny of individual projects, both their benefits and vulnerabilities. Such an approach allows each project or shoreline proposal to rise or fall on its individual merits.

Although this process has been going on for over two years now the real discussion, we believe, is only just beginning. Highlighting the threat is just the start. The real discussion of on the ground solutions is where we must go next.

We strongly urge BCDC to advance the discussion and process called for in Policy 6 immediately, including engagement with landowners, local agencies and your sister regional agencies. Rest assured we understand that the proposed amendments give a green light to no one.

In the tough discussions that lie ahead it will be incumbent upon each project in the inundation zone to make its case on the merits. In so doing BCDC establishes a fair and exacting forum where it may evaluate each local component of what must eventually interconnect to become a baywide response to this threat.

Ms. Libby Lucas addressed the Commission: I just want to draw your attention to the letter submitted by the Citizens Committee to Complete the Refuge.

It points out a lot of the inconsistencies that have already been brought up today in regards to the low-lying areas that are critical habitat and how best to retain them and keep the viability of the species that the Bay is known for.

And I think something you have to think in terms of is the continuity of this low-lying habitat. Because while some of the avian species can pick and choose there are other species like the Salt Marsh Harvest Mouse that need a continuity of corridor around the edge of the Bay.

And also I do hope that you'll think in terms of the water-dependent industries being the concern rather than the development that can be put any place in the entire Bay Area.

The structural considerations I think are strong as far as you want to protect the airports, you want to protect railroad bridges, you want to protect roads. But I hate to see too much emphasis put on structural protection of housing because as it's been pointed out, it's the fluvial inundation of the areas that is so dangerous. That's what happened in Vermont and it's happened throughout the Eastern Seaboard. And we also have the problem of the Delta islands that may turn into an inland sea.

Mr. Dwayne Hunn spoke: I'd like to thank BCDC for the approach they've taken. I think you've raised the IQ level of even property owners to the rising sea level situation that we're facing, causing some property owners to take a renewed interest in it.

I think your approach has kind of reflected what I would say is, ask not what BCDC can do to just save the Bay, ask what BCDC can do to save both the Bay and the land surrounding the Bay. Which I think is a very wise approach.

So we hope that in the future there will be some coordination between the property owners and BCDC to help clear up the complex situations that often appear between the various jurisdictions that we have to deal with.

Mr. Tito Sasaki commented: First of all, we appreciate you having incorporated many public comments, including some of ours in the revised preliminary recommendations. And I support adoption of this version and I also praise highly Mr. Travis' herculean work of bringing the project to this stage.

However, there remain some questions. One question I'd particularly like to raise is concerning the public access. We would like you to clarify your legal powers in securing public access to the Bayfront. Specifically we are interested in knowing your official position as to whether BCDC can require as conditions of permit, number one, granting of fee title or easements without compensation.

Number two, public access improvements, including pavement, landscaping, signage, street furniture, handicapped access, lighting and parking, et cetera.

And three, maintenance and liability insurance thereof.

This doesn't have to be answered in the report, it can come separately. But many of our members like to farm land along the San Pablo Bay shoreline.

If the sea level rises as you predict, we will have to obtain your permit to raise the levees. But if these expensive conditions are attached to your permit it will be tantamount to the denial of the permit applications, even if your demands are legally supportable. That's our concern. Thank you very much.

Mr. Alan Talansky spoke: I am speaking as the public policy chair of the San Mateo Chamber of Commerce. I thank you for the opportunity to speak before you today.

I'd like to express my appreciation to the Commission and their staff for the hard work they have put into the Bay Plan and for the revised language that was presented on July 29th. This version shows the progress represented by a true compromise in addressing the threat of sea level rise and understanding that protecting our communities is the first and foremost priority. The revised language acknowledges that new private investment can be a part of the solution to help protect our businesses and our homes and community.

I am also encouraged by the actions of the City of San Mateo which has made sea level rise an important part of their annual sustainability reports and are leading the way with their levee implementation plan to ensure that properties in the inundation zone will be protected against potential 2050 sea level rise projections.

Ms. Weems spoke: I am an attorney in Marin County and I represent some smaller developers, principally Francisco Properties.

The Bay is expanding, it is no longer shrinking. I was disappointed after all of the work that has happened the last two years in particular to see so many of the environmental community appearing so bitter about the July 29th modifications. We appreciate very much the dynamic process the Board has encouraged at these meetings. The recognition and respect for existing infrastructure projects and uses along the Bay shore is definitely deserving.

And in connection specifically with the comment, our comments with respect to the proposed plan. Staff report page 4, We approve the modifications to Finding W. That would propose you eliminate the amendments of the last paragraph. It's at the last eight lines of Finding W. It's redundant and confusing. It's a repeat of the immediately preceding sentence.

I also had raised to the Commission previously some materials that appeared to be a bit outdated on your website. I saw those changes were made and I appreciate that because I do rely very heavily on the BCDC website for staying up to date. You have an excellent website.

The FAQ that has been amended seems to be much more accurate and reflective of the current positions of the BCDC and these conversations.

Mr. Wayne Miller stated: I am speaking on behalf of a number of environmental concerns and for the Citizens Committee to Complete the Refuge.

I am a long-time resident of the San Francisco Bay Area and a previous researcher in oceanographic sciences with emphasis on ocean chemistry. In the past I provided to BCDC a number of scientific documents and references.

I spoke out on behalf of environmental protections supporting enhancement of wetlands and habitat as feasible and economic methods to protect shorelines.

Today I submitted another document for further improvements to the Plan.

We are pleased that the Commission recognizes the threats to the Bay wildlife and habitat and the human developments that would be impacted by sea level rise. However, a number of us are most concerned and are reluctant to support certain conditions of the Plan that evolved into weakened positions towards protecting Bay shorelines, wetland and habitat environments.

The primary driving forces were financial. Deferring future environmental issues to other sources, leaving protections up to an unknown such as the regional taxpayer level.

Compounding the impact of forces that are affecting sea level rise in the Bay Area is the potential for earthquakes, tsunamis and liquefaction.

We are encouraged that at least the BCDC language allows them to discourage projects in low-lying flood prone areas. However, much of the language is too confusing and too flexible to support and needs to be strengthened with less emphasis on how to develop.

In a recent conversation with a friend and colleague, the Chair of the Science Board of the Bay-Delta Plan who is also on the IPCC's committee and recently attended the Korea IPCC meeting said that if the BCDC Bay Plan is weakened, then the Delta Plan must be redone. All are interchangeable waters, of course.

So BCDC's plan is being watched by many with the expectation of a strong, proactive plan to address sea level rise and related environmental impacts. Interest is increasing from many parts of the world realizing that about 83 percent of the developed world populations are subject to sea level rise. That's a recent report in Scientific American, September 2011.

We can be sure that the greater public does not want us to pull the plug on the science of sea level rise in order to plug the holes in some of the pseudo-sciences of levee protection and face the consequences of poor planning for new, existing and infill developments in vulnerable areas. Taxing for levees could become synonymous with levying a tax to protect developments against the force of the sea. Thank you.

Mr. Arthur Feinstein commented: Commissioners, I'm representing the Sierra Club. I'm the Chair of the San Francisco Bay Chapter and also I'm speaking for our coastal, California Coast Habitats Campaign, a national Sierra Club campaign.

It's totally appropriate to say that the policies you have before you, while you do as we say in our letter and I hope you read it, give you the opportunity to protect our shoreline and to deny projects that are inappropriately placed. As you have heard from many previous speakers, the language falls on the side of encouraging development rather than discouraging it. In the face of the adaptation strategies, the California Climate Adaptation Strategy.

Please look at the language, the recommendations many of us have made. It's an easy change to fix. Previously, in fact, you had in Policy 6 the last words, "discourage development in low-lying areas." I urge you to put that back.

Because failing to do so is simply irresponsible. We're seeing right now what happens when nature, as has been previously mentioned, takes its course. And so when you're saying, let's get a financial strategy that's going to deal with the disaster that's going to hit the Bay. Nonsense, there isn't one.

And to say that developers will create a financial strategy. As we say in our letter, we have seen many developers go bankrupt in projects, which means they don't fulfill it because their obligations are removed through bankruptcy. They will no longer be obligated to pay for the repairs. And then we'll come to the public to pay for them. And we're seeing now in the United States that the public simply doesn't have the money to do that either.

So in fact by encouraging, and you use this word a lot, development in low-lying areas, you are acting extremely irresponsibly. Putting people at risk, putting the public at risk financially, people's health at risk. I really urge you to look again at this. Change a few words, make this stronger. It's not saying "prohibit." We are not urging that, we understand case-by-case. But "discourage" is a good word when you are asking people to not develop in sensitive areas that are going to be costly to life and the economy. Thank you.

Ms. Karen Keefer addressed the Commission: I am Karen Keefer representing myself. I retired as a senior program officer from FEMA.

Sea level rise is going faster, even than the 55 inches that were predicted earlier. On NPR, a woman that was a climatologist was talking about it and said it's going to be 72 inches now by the end of the century and we know that it keeps going faster than what we were.

So I'd like you to consider, since you are in charge of conservation and development within 100 feet of the shoreline, that you might do it 100 feet from the shoreline that will be there in 2100. In other words, take into consideration all of the water that's going to cover El Camino Real and other places and consider your conservation and development from that point. That's number one.

Levees. I've worked a number of disasters in the field even though I was a policy person at headquarters in DC. And I've seen how levees fail all along the Mississippi. You all know about the levee failure in Katrina. They were constructed by engineers and engineers do what they know best but Mother Nature fools a lot of us and so we need to consider that levees may not be the best thing to build to protect us.

A lot of people said, well, when Loma Prieta hit in '89 we didn't get the damage. Well, we're 75 miles away from Loma Prieta. Right here we're like eight miles away from two major earthquake faults. And the Hayward is overdue, God forbid, in going off. That will destroy most everything that's already in the Bay, God forbid, future development in the Bay. Because I care too much about people. I've seen too many deaths and talked to too many victims that have lost everything.

Regarding the jobs, since you are into development. Redwood City has a great general master plan that calls for building up along transportation corridors, rather than these one-story shops and stuff. There's been a number of four-story, five-story buildings along transportation corridors and that to me would be smart growth and provide the jobs that the gentleman was talking about that are needed in this area. Thank you.

Mr. John Coleman commented, as I've stated before, we appreciate at the Bay Planning Coalition all the hard work and effort that was put in by staff, Commissioners, members of the business community as well as the environmental community trying to come to terms and coming up with the document that was produced on July 29th. A good solid document at that.

And what the document does provide, what the previous documents didn't in versions one, two and three, it assures the business community, investors, the insurance community and venture capital that we are open for business here in the Bay. And we're trying to make sure that we're looking out for the future and protect all interests of the Bay, both financial as well as environmental. We have a better product today as a result of the last six months of work.

Is it perfect? By no means is this a perfect document. In any compromise everybody is going to have problems and issues and certainly the business community doesn't like all aspects of it. However, when we entered into this dialogue for six months we entered into it in good faith. We entered into it saying that we would support it if it remains as it is.

It is very disingenuous to have some people coming up here who were part of the negotiating process now saying that they don't support it and are putting changes forth asking you to make those changes. That is not operating in good faith. We ask you to keep with the current language that has been negotiated.

And I just want to real quickly go to the issue of levees and sea walls that people keep talking about. Will Travis, the esteemed Executive Director, keeps talking about Holland and what they're doing. They are underwater, they have been underwater for centuries and they have done a phenomenal job protecting their investments.

We have those abilities to do it here in the Bay. We are not any less likely than Holland to engage in that activity.

Mr. Scott Zengel commented: This newest draft is a true compromise, just like your organization, Bay Conservation and Development. That is a compromise, it's balance. This is one of your key tenets. We're glad to see that this is finally a compromise.

While this is not perfect this is something that we can support. It is one of the leading documents in the world in this area. We're glad to see that it's finally at a point where we can potentially vote next month and do something that is going to change the world and lead in this area.

But this is a short stop on this long train of climate change. There's much to do here. This is the beginning of a long discussion. We need to make sure that we're involving SB 375, our regional planning agencies, other stakeholders, some of whom have been mentioned today, other regulatory agencies, landowners, et cetera. So in summary, we look forward to closing this chapter in the book and really moving on to be able to take your leadership and guidance.

Ms. Nona Dennis spoke: I'm Nona Dennis and I'm representing the Marin Conservation League. And I regret that we have been watching this process from a distance, reading but not being vocal. And we want to commend you on being the leaders in helping us to understand the science and the practical implications of sea level rise.

In Marin County, eight of our eleven incorporated towns and cities and substantial areas of our unincorporated lands lie within vulnerable areas. So we have been very conscious on a local level and concerned.

We're concerned, for example, that the County which adopted policies addressing sea level rise in 2007 in the update of the county-wide plan has done virtually nothing to really carry out the implementation programs.

I think Arthur Feinstein hit the right kind of tipping point when he said that the effort here should be to discourage, not to encourage development in low-lying areas that are going to be vulnerable.

The second point that I'd like to make is that we see in the revisions to the Plan, to the proposal, that ecosystem restoration, protect and restoration, has kind of fallen down. It's fallen to second place and Policy 6 has fallen to fourth place. Not necessarily are those all in priority order but it has crept downward.

We feel that if there were any change at all that should not have been made it is in Policy 4 under Tidal Marshes and Tidal Flats which did say, where and whenever possible, feasible for tidal marshes and tidal flats, should be restored.

But to take out the "wherever/whenever possible" takes away the primary need to maintain that this is not only a physical biological system but a physical buffer against the rising sea level.

So if we have any recommendations at all, we are ready to accept the revised language but we agree that it has watered down too much the protection of these primary restoration areas. Thank you.

Mr. Scott Peterson stated: Scott Peterson with the Economic Development Alliance of the East Bay, a public/private partnership promoting economic vitality in Alameda and Contra Costa Counties.

And we appreciate the efforts over the last many months to negotiate this compromise language and that we look forward to supporting when it comes to your attention for a vote shortly.

At the same time that we're supporting this we want to acknowledge again with appreciation the participation of so many different stakeholder groups to engage in conversations and debates with you both as a body and in the task force format to develop the draft.

And we hope that as the next stages of forming an adaptation strategy that same process can take place so that all stakeholders are at the table to ensure that the Bay Plan and the strategies used to implement it both protect the environment and promote economic development at the shoreline.

So we look forward to making sure that the shoreline landowners and local governments and communities that are affected by the rising level are engaged in the process of forming the strategy, finding ways to implement it, making sure that the cost measures and who pays for those costs are all worked out in a more conciliatory and productive manner moving forward. Thanks very much.

Ms. April Wooden spoke: My name is April Wooden, I'm the Community Development Director for the City of Suisun City.

And we are here to thank the Commission and the staff as well. I think we all learned a lot. I certainly have had quite a learning curve and I appreciate that. And we have been very appreciative of the workshops that have been held in Suisun City to get local government, our business community and property owners together to hear firsthand about how these amendments could affect our future.

We have only a few areas left that we're concerned about and we have been working in concert with other affected Bay cities in the Bay Cities Coalition. And our City has submitted a letter both for our city alone and also as part of a Bay Cities Coalition letter.

And one of the most significant things that remains is also a small detail-oriented thing and it's been mentioned earlier this afternoon and it's definitions. When terms like "larger shoreline project, small project, regional benefits" are not defined it creates uncertainty for development. And we would encourage the staff to think about those terms that have not yet been defined and give us a better comfort level of what a small project really means, what a larger shoreline project means.

One other area that we're still concerned about is in Climate Change Policy 6. We wholeheartedly agree with the call to action that BCDC is sounding and we agree with most of the information that suggests it should be in a regional climate change strategy. We simply believe that a regulatory document like the Bay Plan is the wrong place to put what we hope we'll see in some other document. We would encourage you to consider an appendix, a separate document or something of that sort to sound that call to action without including it in your regulations.

Ms. Ursula Luna Reynosa commented: I am here representing the City of Vallejo as the Economic Development Director.

I echo the specific comments communicated by April Wooden, the previous speaker, with the City of Suisun. That addresses specific concerns, namely that there has been great progress but there are a few areas that need some additional clarification and changes.

As Vallejo prepares to rebuild our sole strategy is economic development. No pressure on me. And I think it's important to understand the context of doing business in California. California consistently is ranked as one of the worst places in the Union to do business. There is a highly burdensome regulatory process already in place. The number of trade shows and different times I get to communicate with businesses outside of the state of California, the refusal to invest in California is often repeated.

Creating wealth through job creation and investment is the only way Vallejo can increase its revenues to get back to a situation where we can provide the level of service demanded by our community.

I endorse responsible development, I also think that it's irresponsible to do policy decisions in a vacuum without considering the larger context or impact to a larger vision. That that's actually detrimental to our state and our communities.

As you are considering the decisions before you I ask you to consider the risks of sea level rise. But I also ask you to consider the risks to all the affected communities if they are not able to develop their economies to generate the economic revenues necessary to provide basic and essential services, including police and fire, social services and maintain our deteriorating transportation infrastructure.

Consider the risk that the business community has had enough and California's climate and natural resources are not enough to mitigate the great challenges of doing business in the state.

Is "discourage" a good word when we use it in the context of job development? Because California probably holds the patent on discouraging jobs right now. Thank you.

Ms. Roseanne Foust commented: Thank you, Chair Randolph and Members of the Commission. I want to thank you for all the work that has gone into the development of the Bay Plan Amendment.

Chair Randolph commented: I want to thank and acknowledge everybody who has contributed and participated in this discussion over the last year.

I think it's pretty evident from what a lot of people have been saying today and before today that it's not perfect. I think any one of us might have written it differently. Any interest group we have talked with over the last year might have written it or would have written it differently. And I think it's in the nature of the process but a healthy one that we have worked together, and I think very patiently, to reach out and engage repeatedly I think all the major perspectives and interest groups all the testimony that we have received over this last year.

So I think it has been said earlier. If we vote and approve these amendments next month we will be closing a chapter in this really thick book. There are a lot of steps ahead down the road and I think it's unrealistic to think we could do the entire job at once in addressing climate change just through the Bay Plan.

But I think it's pretty clear, certainly to me, that the process that we have gone through up to now has successfully, or largely successfully, brought the community together with us going forward. And that although it may not be as advanced as some might like that -- this document from BCDC, it is the leading document or will be the leading document I think really anywhere in terms of how communities address climate change.

So with that I would welcome a motion and a second to close the public hearing subject to continuing to accept written comments through next Tuesday, September 6th.

MOTION: Commissioner Wagenknecht moved this item, seconded by Commissioner Gioia. The motion passed by voice vote with no abstentions or opposition.

Chair Randolph entertained Commissioners’ comments.

Commissioner McGrath commented: Mr. Travis, I was concerned enough about the comment by Ms. Wooden, I believe it is from the City of Suisun City, about Policy 6, to reread it. And I think her concern was not with the concept of adaptive planning but with the sense that this was prescriptive.

Now I don't read it that way. I read some shoulds and some examples but let's just be really clear. If a local government develops cooperatively an adaptive management plan that for reasons that make sense for that particular local government deviate in some way from this, this would not be intended to be prescriptive and say that it must have this content. Is that correct?

Executive Director Travis replied: That's absolutely correct. And in fact you will see that the language is not even prescriptive on what BCDC and the other three regional agencies would be doing. All we can do is recommend to our partners how we think is a good process to go forward.

Commissioner McGrath continued: So this is guidance to simplify it but not to discourage innovation. We recognize that there are many out there that will have very wonderful innovative ideas and that continues to be encouraged.

Executive Director Travis responded: You're absolutely right. And just a personal aside: I think one of the most difficult things that a regulatory agency can do is to encourage innovation. Because the way we craft our policies and procedures is to specify, this is how you can do it and this is how you can't do it.

So to some degree we have tried to do that in here with these interim policies and then be working on a region-wide strategy. In the meantime we are beginning to see, and I cited some of the case studies with local governments that we're engaged in. There are different approaches and we want to see much more of that. And then hopefully we'll all copy from the best.

Commissioner Gibbs commented: This was an extraordinary public hearing. We'll be voting next month. And I wanted to outline again for some of the Commissioners, and I also think it's very important for the public today, the approach that we took in arriving at this document.

It was really a three-pronged approach. The first is compromise. And let's be very clear, this is a compromise document and we have seen examples elsewhere in our nation of what happens when people fail to compromise.

Not everybody will get exactly what they want but it was a compromise that was worked on very heartily over the course of a long time and everybody's input was taken into account.

Second, we tried to make this consistent with the State Climate Adaptation Strategy, the specific elements of that Strategy, and I have it with me here today, on pages 7 and 73. And I would encourage, if it's possible, for the staff to either post that on the website or distribute it before the next vote so that we can see that indeed where they refer to the policies to be taken into account in vulnerable areas that we are consistent with that strategy.

Thirdly, we wanted to be consistent with our regional responsibilities as a regional agency with the regional greenhouse gas reduction policy. And what that means specifically is that we can't just be concerned about vulnerability around the Bay if the effect of those decisions pushes everybody who wants to come and work or play into the Bay two hours away and that they then drive here and contribute even more to the greenhouse gas problem. So that runs through these policies as well.

I wanted to briefly address some specifics. I think Mr. Lewis was correct that at the beginning of this process there was some mischaracterization coming from some elements of the business community. Now a year later it seems that the same, frankly, is happening from some elements of the environmental community. And I'm referring specifically to the remarks of Mr. Feinstein, Mr. Blumberg and Ms. Raabe. I want to take them in reverse order because this is a document that deals with specific language and it's important for the Commissioners and the public to know how we got where we got.

Mr. Feinstein I believe, and anybody can come back up and recharacterize their remarks if I mischaracterize them, but he said that our document and these policies encourage development rather than discourage them and he termed that irresponsible.

Policy 4 language in plain and clear English says that undeveloped areas around the Bay should be encouraged for ecosystem enhancement and preservation.

It is true that at one time the word "discourage" was in there. That word was a red flag and so we took it out. But frankly, discourage and encourage are merely opposite sides of the same coin. And the clear intent of that language as guidance to this Commission and any future Commissioners is that when you have undeveloped areas around the Bay it is a treasure, it should be preserved and the first priority is preservation.

And in fact, at our hearing, I think it was in the summer, it was over in Oakland, we had one of the leading representatives of the building and development community, Mr. Campos on it. We proposed taking out the word "discourage" but we said that the language would appear as this. We asked him did he understand that that meant that the first priority would be given to preservation of these areas and ecosystem advancement and he said, yes.

But we did take out the word "discourage" because it was causing too much problem for what it was worth. And it was removed as part of a legislative compromise because in this matter we were acting as a legislative body. So I just wanted to cite that so everybody knows how we arrived at that and what the intent is.

Second, with respect to Policy 7. And it's too long to read in its entirety but this relates to areas that are not undeveloped where there may be some development to come. And it is a balancing test. But two of the three elements of the balancing test, it refers to a case-by-case to determine the project's (1) public benefits, (2) resilience to flooding, and (3) capacity to adapt to climate change impacts. Two of the three elements there are environmental protection or climate change protection measures. Only the first, public benefit, relates to development or economic goals.

The test then says that certain projects that will contribute to infill development and help sustain our regional greenhouse gas strategy should be encouraged if, and it says if, their regional benefits and their advancement of regional goals outweigh the risk from flooding.

So I just want to say that anybody who has come here today and said that this document and these policies somehow do not take into account adverse impacts of climate change and potential flooding, it is simply not reflected in what we have agreed on after a year of hard work and what is actually in this document.

And so I would encourage everybody who is interested in this to once again before we vote next month, read the actual language and make comments and attempt to influence this Commission and the public based on what is actually here.

And I believe that that is a document that both protects our Bay, which we all regard as a treasure, and allows for sustainable development for those who want to live, work and play close to the Bay. So thank you very much.

Chair Randolph added: I want to completely endorse and subscribe to what Commissioner Gibbs just said, having participated with a number of other Commissioners here as well as staff in many, many of these discussions over very many months. Where we narrowed down the differences, we fine-tuned the language, always looking for an appropriate balance between strong, legitimate environmental concerns and objectives and the concerns of the business community.

It hasn't been easy striking that balance but I think what Commissioner Gibbs has described is accurately the process of how we arrived at the current language and I think he has described it very accurately.

Commissioner Gioia commented: I am glad that we're moving forward although it's been, I think, a longer process than we all anticipated at the outset. And I think whenever there are major changes to the Bay Plan Amendment we would expect that. In my 13 years on the Commission here this has clearly been the issue that's taken the greatest amount of time.

But whenever I think about this issue I always reflect back to the history of this Commission, which is that it was formed out of a regional need to protect the Bay.

So I do think that some of the misinformation at the outset of the process has continued to have a residual effect.

And I also respect that cities want to have local control. But I think this is clearly a case where we all sink or swim together here in the Bay Area. That having a regional policy on sea level rise and how we address it is important for every one of the jurisdictions in the Bay Area because we can't pursue locally our own objectives if we don't have a strong policy regarding the Bay in general.

And I think the most important part of our policy is really Policy 6, which sets forth the process to move forward through the Joint Policy Committee

So I agree with all those who feel that we need to jump start that process as soon as possible

And I hope that we go into that process wearing more of a regional hat rather than our individual agency hats because that's what is really going to make that policy most effective, which is sort of what the history of this organization has been.

And I think everyone today looks back on those formative years and says yes. The idea that we would have regional planning for the Bay to protect the Bay from the fill and have jurisdiction over the shoreline makes sense. I think likewise in the future people will look back on this action and say, yes, we needed to have a Regional Adaptation Strategy on sea level rise.

Commissioner Nelson commented: Well like a couple of other Commissioners I'd like to start by clarifying just to make sure to the maximum extent possible that everybody is reading this language in the same way. And I just want to clarify a couple of comments that we heard today that are also reflected in some comments we have seen in writing recently.

The first is a concern raised by the Marin Audubon Society regarding Finding (s).

This is the concern that Barbara Salzman raised regarding placing a clear priority on development over preservation.

What this Finding (s) says is: "Some undeveloped low-lying areas that are vulnerable to shoreline flooding contain important habitat or provide opportunities for habitat enhancement. In these areas, development that would have regional benefits could preclude wetland enhancement that would also have regional benefits."

I read that as a finding.

Chief Planner LaClair responded: It absolutely is. And all of the findings are statements of fact. They are not policy. They are, of course, used to interpret policy but they are not directives in and of themselves.

Commissioner Nelson continued: And that's really highlighted by the following sentence that says: "Some developed areas may be suitable for restoration, if existing development is removed to allow restoration." That's likewise a statement of fact, not a statement of policy that establishes a priority of restoration over existing development.

So I just want to make sure that when people look at that finding they really see that as a statement of fact and not as a statement of priority of one use over another. And in fact if you attempt to interpret it as a statement of priority it points in opposite directions. It's simply a statement of fact and some of the tradeoffs there.

The second clarification is simply we have received a number of letters from Vacaville, Fairfield, Vallejo and a number of other cities that raise a number of questions about options to provide practical, locally appropriate solutions about financial resources and so forth. Again, simply a clarification that those are the issues that the Commission intends to be addressed in the regional planning effort and that they are not issues that the Commission has made any final determinations regarding in these amendments.

Chief Planner LaClair replied: That's correct. But also I think Mr. Travis pointed out earlier that we have seen and will probably continue to see different approaches taken by local governments to address this issue while the regional strategy is being developed. And we encourage that kind of innovation and we expect that there will be different solutions brought forward as people grapple with this issue and the specific geography of their communities.

Commissioner Nelson added: Thank you. Finally one additional point about this language. Mr. Blumberg pointed out that the Nature Conservancy finds distasteful the language that -- he referred to it as a statement of non-jurisdiction and the language regarding CEQA and CZMA. I have to say that I have some sympathy with his concerns; it troubles me a bit. But the thing we have to remember here is that this is not a debate over a single development. This is an effort by the Commission to create a regional strategy to tackle these issues.

In order for us to do that we have to build a partnership with local governments. And I think that is an essential ingredient to success in this effort.

And I think it's important for us to note that these are interim policies. When that regional strategy is adopted I think it's likely we're going to come back and revisit these policies. As painful as it is to contemplate that I think it's virtually inevitable if we're successful in developing a regional policy.

And I think it's likely and I hope that we come back and revisit some of the language in here and in some cases strengthen that language. But I think in order for us to do that effectively, given that so many of the tough decisions regionally are not within our jurisdiction, that we really develop that in a partnership with other regional agencies and with other local governments.

And frankly, I think this is a necessary step for us to begin that process.

Commissioner Lundstrom commented: I represent local government in the North Bay and have been a long-time city council member. Actually I applaud the staff of BCDC for the extra steps of outreach to local government. And then also I applaud the leadership of BCDC because local land use authority still remains with the cities and the counties, that hasn't changed. And I think Commissioner McGrath clarified it for the record. BCDC as a regional authority gives guidance.

Because to make this work we need to have local governments adopt these policies or their interpretation of these very forward-looking policies into their general plans. And that's where BCDC can provide the guidance and the leadership to do so and then take the next step in the strategy committee.

What do you do with existing levees or levee repair? To encourage that as a next step. That as a subset BCDC work with the flood control engineers, there is an association of them and also the Corps of Engineers, to take a look at the whole issue of levees. And I think that's very substantive and that will resonate also with local government.

Commissioner McGrath commented: I want to echo my appreciation for all the members of interest groups and the public. Despite my early concern to move rapidly I found that the process was educational to me. There were things that we had put out as an organization that confused people and concerned them. And we fixed those and we listened carefully. Certainly we drew some lines in the sand on both sides of the issue and I think came out at a good place.

But I want to specifically respond to concerns that somehow we have weakened this to a degree that's unacceptable and give my own perspective of that.

When you become a Commissioner and you represent not just the environmental community but the business community. You also have a responsibility to administer the Act you have, not the Act that you might want to have.

The McAteer-Petris Act does not give us the authority to deny a project in our shoreline band jurisdiction because it is or might become subject to some level of risk from flooding in the future. We don't have that authority. It doesn't give us the authority to deny something there because it's highly suitable for restoration.

Now knowing that, we could ask the Legislature for that authority. I don't think we could get it. Or we could make different kinds of strategic decisions, which is I think what was involved here.

Very early on in this process I did go in and have lunch and a long talk with Professor Seed, the UC professor who along with Bob Bea did the post-mortem on Katrina and the mechanisms for failure, both structural and institutional. What went wrong and why and what lessons we could learn.

What Professor Seed told me about California flooding was people were going to die in the Delta, that that's where people were at risk. And that around the Bay they would get their feet wet. So what was more important, most important, was getting started I think in a process that begins to reflect the flooding hazard and reflect the physical reality that what happens in sea level propagates upstream.

There are certainly going to be adjustments in the process as the fiscal implications of Irene work their way through the system. We currently have a system that only generates about a third of the money that's paid out and we have a Congress that's kind of cranky about that in different ways.

Maybe the federal process of insurance will disappear because it's too much of an intrusion into the private sector. Maybe it will become more fiscally responsible. But we know going forward that the mapping, if it stays the same, will change. And the insurance industry is going to drive this. So how do we get started?

Well I think the process that's outlined but not mandated absolutely in 6 is the way. And I think setting that standard to cooperatively begin to look at planning. It is more than just the shoreline; it goes up all the streams. It has to be collaborative. And that to me is the heart and soul.

It is what the staff got and it took me a while to get as well as they had. It is, I think, a wonderful idea. And it's not going to make or break depending on whether or not we use a word like "discourage" or "encourage." It's going to sink or swim based on how well we form this collaboration and begin to approach the process.

In some cases we're not going to be able to afford to protect everything. The local government has to come to that conclusion, we're not going to mandate it. In some cases it's going to take more development to be able to afford to do it. And that has to be a collaborative process.

So I'm very happy with the work. I appreciate the work of the staff, the fellow Commissioners who listened to every objection, understood them before we said aye, yes or no. Pushed back.

I think we have a good product here. And I don't think it's weak. I think it sets a precedent for the collaborative planning that is how we're going to have to approach this. Not just in the Bay where people are going to get their feet wet but in many, many places of the world where the human health risk is just tremendous.

Executive Director Travis added: If I might, I would like to comment on a couple of things that were raised so that you understand why we're doing what we're doing or recommending what we're recommending and you're comfortable with it. And that is the fact that there are terms like "small project,” “large project” and “regional benefit" which are not defined.

Remember that these policies are for your use within your jurisdiction. And the Commission some 46 years ago got the responsibility from the Legislature to assure that any project that you approve along the shoreline provides maximum feasible public access to the Bay and the shoreline consistent with the project.

That term has never been defined. You have applied it on a case-by-case basis using the nature of the site, the nature of the project, what sort of amenities are there and it has worked.

One of the things that I think is the greatest benefit and value to the Commission is the fact that it's such a large body. You have a terrible weakness for common sense. You just use that. So a project comes through, you say maximum feasible public access consistent with the project. You define it and you determine it on a case-by-case basis. It has not been a hindrance to development along the shoreline as there was that citation of the billions of dollars of development we have approved.

There is another term in the law that says that you have jurisdiction over a vessel that is moored for an extended period of time. That's never been defined either. In some cases it’s an extended period of time, when it's somebody in a recreational boat and they're dumping sewage overboard and they're anchored in one place where they're not supposed to be, that can be as short as hours if not a few days. In the case of a large, commercial seagoing vessel that's undergoing a major overhaul it can be months or years. So again, it's defined based on the context.

So given your culture, given that you have been comfortable applying these terms without definition, we didn't want to say a small project is something that you can authorize administratively. Because there may be a small part of a big project that you couldn't administratively approve which we would consider a small project.

Regional benefits, I think, are the sorts of things that you will look at a project and see what are its benefits to environmental protection, its benefits to resource enhancement, its benefits to the economy, its benefits to reducing greenhouse gases by putting housing and jobs close together.

So that is why we took this approach and I hope that you're comfortable with it. We think it is consistent with the culture of the way you have operated.

Commissioner Ziegler commented: You know, being that I have the honor of sitting on the Commission representing the EPA, as the federal government I'm in somewhat of a unique position. And in that way I come listening to many people with great deference and respect, particularly the Commissioners and the public who represent local government.

Commissioners Gibbs, Nelson and McGrath gave me a higher level of comfort that we are doing the right things in terms of still promoting and seeking out all those opportunities to restore wetlands as much as we can. As well as do the responsible part of discouraging development in low-lying, vulnerable areas.

And just from not having been part of those negotiations. Just reading our record and participating in the hearings I could see how a reasonable person could be concerned about where that balance is. And in fact even your comments clarify that you needed to make sure with everybody involved that we had the same understanding of how these words would be carried forward.

I would like to see if there is any opportunity to clarify some of the wording in here that I think suggests that the Habitat Goals Project goals need to be revised. And it does say that they need to be revised due to climate change considerations, without putting that in any context of when.

And that has been a great effort to set specific goals for restoration. And my thinking is really at what time do we put resources into revising those goals with all that we have to do in our various regional planning efforts?

I have suggested language and all.

Executive Director Travis replied: If you have specific language I would suggest that you vet it in front of the Commission right now.

Chief Planner LaClair added: I know the EPA was one of the key leaders of the Habitat Goals Project in its formulation along with Department of Fish and Game. We have been in conversation with the Coastal Conservancy who has funded a staff position through the Bay Area Ecosystem Climate Change Consortium to begin looking at the habitat goals and whether or not they need to be revised. And how, if it's determined that they do need to be revised, how that ought to be done. So I know that there's funding and an effort underway under the auspices of what we fondly refer to as BAECCC, the Bay Area Ecosystem Climate Change Consortium.

Commissioner Ziegler asked: Have you spoken with Josh Collins and Judy Kelly?

Chief Planner LaClair answered: Absolutely so. All those people are engaged; they're all members of that consortium. It's a very nascent effort. I mean, it's not something that is far down the road by any stretch of the imagination. But it is something that has commenced and I imagine it will take years.

Commissioner Ziegler continued: So if it would be appropriate I could just suggest some language. Under (g), page eight, the underlined part "that require." I could see it saying "that may require."

And in fact that's consistent with what the staff analysis says. So the staff analysis says, the potential need to update. And I just didn't think the finding reflected that it was a potential need. I thought the staff analysis is accurate.

So page 11, Policy 4. And it says they should be updated periodically.

So I might suggest language that starts on that sentence where it says, "Regional ecosystem targets." The Commission should support “when appropriate” updating the regional targets to guide conservation, restoration and management efforts.

So again it is, you know, do they need to be revised? When do they need to be revised? And then that when they are revised these considerations should be part of that.

Chief Planner LaClair explained: Just to explain a little bit about the thinking behind the language. We wanted to acknowledge that the dynamic estuary that we live in is going to require us to adaptively manage the shoreline environment in a way that we haven't in the past because things are going to be changing probably more quickly than they have in the past.

And that requires an iterative process of monitoring and adaptive management, including reevaluating things like goals and targets based on changed circumstances, particularly if a threshold event is experienced that changes the underlying assumptions about what's feasible and what's appropriate.

And so that may be why the language is a little more assertive than we're accustomed to. But that was the thinking behind why we proposed that the targets need to be periodically updated because we believe that circumstances will change more quickly than they have in the past and it's just appropriate to acknowledge that.

And of course this isn't directive. It doesn't require that they be done at any particular time. It's really more of a general directive to all of our partner agencies, the EPA included, that help to formulate and then eventually implement these goals.

Commissioner Ziegler added: But I would say that there are other concerns that come in place first, even on being able to track progress towards achieving those goals.

We don't have a real effective process for saying, where are we overall in achieving the goals we have. And then the question is, are these goals that we've established, are they still appropriate for where we're heading to. So there are various orders of questions that need to be asked as we update that.

And I just was somewhat concerned as I looked through this that it would undermine any efforts to move forward with achieving those goals. And I didn't want something, when other people are sitting here, for that language to address it. And also that we don't inappropriately start directing resources to revise goals that we don't really even have the basis for revising them to in terms of new science on sea level rise.

Chief LaClair concurred: Yes, that's a very good. I think that, you know, the folks that are part of the consortium that have been involved in this conversation are very concerned about the changing nature of habitats along the shoreline because of rising sea levels, inundation, limited migration opportunities. And recognizing that the habitat mix is likely to change and that we really need to begin thinking about that and having an approach in mind.

Executive Director Travis added: May I suggest some language? Where it says "Regional ecosystem goal targets should be updated periodically." Page 11, Policy 4.

Now it says: "Regional ecosystem targets should be updated periodically." I think if I understand you correctly, that you would like it to say it “should be monitored and if necessary updated periodically.”

Commissioner Ziegler agreed.

Executive Director Travis stated: This will be incorporated into the staff recommendation.

Commissioner Nelson commented: I want to ask staff for their advice on Page 8. I see in looking at this language, I certainly think it's important that we don't give the impression that the Commission believes that the existing Habitat Goals are out of date, irrelevant, should be discarded.

As Travis suggests, they may need to be revised over time. Those are complex goals. Some tidal goals may remain unchanged, other goals may change. So a question of staff whether they believe a change is appropriate to (g) on page 8. Make it clear that we're not suggesting that the existing goals be simply discarded but they may need to be revised over time.

Chief Planner LaClair agreed: I think the addition of the word "may" is appropriate.

Commissioner Baird commented: This has truly been a high-wire act, I think, for a year. It really has been pretty compelling, pretty emotional.

I think one thing in this business, since I'm about to leave this portion of this business, is that this whole thing in collaboration and trying to look at the long haul and how you're going to all work together as I think Jim said. I really did enjoy these comments which really helped put this in perspective for me. But I think you're setting forth a process, a long-term process to bring the various jurisdictions together in a reasonable and hopefully rational way to do this.

I think that you've set forth a process that hopefully will honor those and carry out those philosophies.

Try to look back at the long haul. If this document had come out ten years ago people would have thought you were absolutely out of your minds. I think that we have evolved with the science and a great deal of discussion to get to where we are now.

Commissioner Gibbs added: I just really want to sign on the remarks of Commissioner McGrath. While this is a compromise we shouldn't be thinking about what's been weakened and where it may be weak but as a whole this document is very strong. And it's very strong in reflecting what I think most people in the Bay Area would want to do with this resource that we have in terms of protecting the vulnerable areas and allowing some development where appropriate. That's what it says, that's what we worked on. And it is going to be one of the first documents of its kind and it's one that we can be proud of and should think of as strong. So thank you.

Commissioner Jordan Hallinan commented: I think even without this document this process over the last couple of years has really raised awareness of the idea of sea level rise. Whether it happens or not, developments that end up on the Bay, I think we've raised such awareness that people that move into these developments or are looking at developments are going to ask themselves, what's going to happen if there's sea level rise. That kind of natural evolution I think has occurred through the controversy.

There are just a couple of things that I wanted to address that are kind of minor but they are important in terms of perceptions. There was one comment about the Commissioners that follow may not have the benefit of being immersed in these deliberations but they will have the benefit of scientific and technological innovations and advancements.

And I think it's really important that we not get very prescriptive because we don't want to tie our future Commissioners' hands, even though I'm certain that some of the Commissioners here will be still be here 20 years, 30 years from now, as has happened in the past.

The Fish and Wildlife does have a job. Whenever there is a development on the Bay let them do their job. We have locally elected officials that come up with land use policies. Let them do their job. We don't need to be encroaching on the responsibilities of these other representatives of the public. Those are my thoughts about this whole process, thank you.

Vice Chair Halsted commented: When we first issued this Bay Plan Amendment proposal, many of us thought we were ready to go and it was a great proposal as it was, and it was. But it has been vastly improved. And even, as everyone has said, it has really improved the public's awareness of the issues and brought people to the table. Brought municipalities and local government to the table and I think it's a great step forward. And I thank our staff and our Commission for wonderful work as well as the public.

Commissioner Carruthers commented: As the longest participating member of the Commission I simply want to say I am really satisfied with the work the staff has done. I am really satisfied with the work the Commission has done.

And perhaps our major accomplishment has been actually waking up the Bay Area. Getting the attention of the community. When you get the attention of the Silicon Valley Manufacturing Group, most of whose members manage the industries that sit in the area of the Golden Triangle that's going to be underwater, that's a major, major accomplishment. And I don't think the world will be the same after this.

We're sort of undertaking a forward pass with still having to put together a receiver. And that's doing the regional plan. I'll be rooting in the stands there for that to happen.

Commissioner Bates commented: The process has been really phenomenal. And I think in itself we have learned a lot. We have actually started working with people and listening to people on both sides of the aisle and on different issues and I think it's been very healthy. I think where we have come is really very important.

I do have the responsibility, working with other members, to look at this now at some point from the JPC standpoint about what are the strategies we're going to come up with. So it's going to be really an interesting task. And I think that the other part about this that we're adopting, the Bay Plan, is first of all I keep reminding myself, you know, this thing is not, you know, chiseled in stone. I mean, this can be changed. If we find out that we have overlooked something or went too far or didn't go far enough we can come back and revisit this. It's not like it's, you know, locked in steel. So that's the first thing.

The second thing is, I think that the market and the various things like people are worried we're going to open up runaway development. Well, that could be in some cases but, you know, there are other factors, there are other factors that are involved.

The financial ramifications of development also come into play too. Like you can't just build. You can't just, you know, build a huge dike and expect to be able to make the economics work. So there are some other factors involved, not just the planning.

But I think that this document that we're about to adopt is really a major step forward. And I think we should be proud of it and I think the staff did a fabulous job. And the Commissioners have listened and have learned and I think we got a better product because of it.

Commissioner Goldzband commented: I just want to say one thing and it's only really tangential to this. This is Brian's last meeting at BCDC after an incredibly long and distinguished career dealing with BCDC.

And having been in Brian's shoes for two years during the last two years of the Wilson Administration I have some knowledge. And Trav, of course, has far more than any of us about how difficult that job can be. Because not only are you representing the Secretary but you are also working with other Secretaries' representatives from BT&H and you deal with Caltrans.

And you also have these five independent gubernatorial appointees who have no reason to believe that anything that they do will ever be communicated to the Governor and are never asked by the Governor, thankfully, to do anything because that's not what the process is about. But if they're smart they understand that looking to people like Brian can only help the process.

So I don't think that simply passing a resolution is enough for Brian. I really think that we owe him a great deal of gratitude.

Chair Randolph closed the Commissioners’ comments session by stating that BCDC would be voting on this matter in October.

9. Closed Session to discuss litigation against John M. Asuncion and the Blue Whale Sailing School, affecting properties in and near Alviso Slough, in the City of San Jose, Santa Clara County. Chair Randolph stated that Item 9 would be a closed session to discuss the status of a lawsuit BCDC filed against the Blue Whale Sailing School on the Alviso Slough in San Jose to resolve an enforcement case.

He stated that it would be necessary for everyone except members of the Commission, staff and the Attorney General’s staff to leave the room before taking up the matter.

After a short closed session Chair Randolph reported that the Commission held a closed session to discuss pending litigation and gave direction to staff and the Attorney General’s Office.

10. New Business. Chair Randolph mentioned that he and Commissioner Bates wished to propose a resolution of congratulations in recognition of the 50th anniversary of Save the Bay.

11. Old Business. No old business was discussed.

12. Adjournment. Upon motion by Commissioner Goldzband, seconded by Commissioner Lundstrom the meeting adjourned at 4:01 p.m.

Respectfully submitted,

WILL TRAVIS
Executive Director

Approved, with no corrections, at the San Francisco Bay Conservation and Development Commission Meeting of October 6, 2011
R. SEAN RANDOLPH, Chair