Minutes of November 3, 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, CA 94111 at 1:08 p.m.

2. Roll Call. Present were: Chair Sean Randolph, Vice Chair Halsted, Commissioners Apodaca (represented by Alternate Fergusson), Bates, Chiu, Fossum (Represented by Alternate Kato), Gioia, Goldzband, Groom, Jordan Hallinan, Hicks, McGrath, Moy, Nelson, Sartipi (represented by Alternate Richards), Sears (represented by Alternate Adams), Shirakawa (represented by Alternate Carruthers), Vierra, Wagenknecht, and Ziegler.

Chair Randolph announced that a quorum was present.

Not present were: Association of Bay Area Governments (Addiego) Sonoma County (Brown), Alameda County (Chan), Department of Finance (Finn), Speaker of the Assembly (Gibbs) Solano County (Spering) and Association of Bay Area Governments – North Bay
Cities (Vacant).

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.

Three speakers requested to speak.

Ms. Sandra Threlfall addressed the Commission: I am the Executive Director of Waterfront Action which is an access and education project taking place on the Oakland Alameda Estuary.

The Middle Harbor Shoreline Park and the enhancement area are an example of three wins; the environment, the public and the shippers.

I was very disappointed to see the front page coverage over the issue that is out of control of the Port. When the dredge materials were put in 10 years ago the mix was more mud than sand and this is not something that you control easily.

I am extremely disappointed that Save the Bay chose the enhancement area as a target. I am excited that our Congresswoman Barbara Lee has come up with $350 million for dredge and maintenance for the Port of Oakland, but more importantly, she has put forth a bill, HR 104 which will require the federal government to release five billion dollars in funds for dredging.

Mr. Richard Sinkoff commented: I am the Director of the Division of Environmental Programs and Planning at the Port of Oakland.

I am also here to speak on the report prepared on the middle harbor enhancement area.

We are moving forward on middle harbor enhancement area with the Corps. Of Engineers project that will create habitat for eel grass and for all the species that were identified by the Technical Advisory Committee.

We are in compliance with all permitting conditions.

The issue of our being delayed by some of the critical funding issues has been raised but the technical work is continuing and we have prepared the reports and submitted those to the permitting agencies.

We are waiting for the site to settle appropriately so we can continue with construction.

We do appreciate the engagement and issues raised by Save the Bay.

Mr. David Lewis addressed the Commission: We wrote our letter of August 22nd because the Port and the Army Corps. Of Engineer’s own chart shows that they have not achieved what they were supposed to achieve under the permit and the consistency determination and that has an impact on the Bay.

Their response was a little disappointing but BCDC’s and other agencies’ responses have been more disappointing.

For the past four years I have been asking BCDC to have the Corps and the Port come and update the Commission on what was and was not being accomplished and that has not happened.

It’s distressing to me to read in the press BCDC staff suggesting that the main issue here is Save the Bay’s disappointment. That’s not it at all. We’re trying to help the agencies enforce their own permits and their own credibility.

This is one of the largest projects BCDC has ever permitted. The Bay Plan had to be changed in significant ways for this project to even go forward.

The longer it takes these agencies to deliver the benefits stipulated the more BCDC and the other agencies should require increased benefits to be created for the Bay.

Chair Randolph moved on to Agenda Item 4.

4. Approval of Minutes of the October 6, 2011 Meeting. Chair Randolph entertained a motion and a second to adopt the minutes of October 6, 2011.

MOTION: Vice Chair Halsted moved, seconded by Commissioner Goldzband to approve the minutes. The motion passed by voice vote with Commissioner Hicks abstaining.

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

a. Climate Change Policies. To ensure that the regional sea level rise adaptation strategy called for in the Bay Plan amendments we approved last month moves forward, I believe the Commission should become more actively engaged in the work of the Joint Policy Committee.

To determine how we can best accomplish this, our five representatives on the Joint Policy Committee will be meeting at BCDC’s office the afternoon of Wednesday, November 23rd, the day before Thanksgiving. I invite other members of the Commission who are interested in advancing our climate change policies to join us at that meeting.

b. Next BCDC Meeting. It won’t be necessary to hold a second meeting this month. Therefore, we will cancel our November 17th meeting and will hold our next meeting four weeks from today on December 1st. At that meeting, which will be held here at the Ferry Building, we will take up the following matters:

(1) We will vote on amending the Bay Plan to delete a port priority use area designation at Hunters Point in San Francisco. We are holding a public hearing on this requested amendment today.

(2) We will consider the ideas our group comes up with on November 23rd for advancing our Bay Plan climate change amendments.

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

c. 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.

Commissioner Chiu mentioned that he and his staff had a number of conversations with folks in regards to Agenda Item 9. Some of these were, Save the Bay, representatives from the mayor’s office, representatives from the Port staff and others.

Vice Chair Halsted commented that she also had had conversations regarding the same subject with others as well.

Commissioner Kato mentioned that she had conversations with Port staff regarding the same subject and talks with the mayor’s office regarding Hunters Point.

Commissioner McGrath stated that he had conversations with members of public access groups letting them know that the planning process for the America’s Cup would start today.

Commissioner Carruthers mentioned that he had a brief conversation with Save the Bay regarding the items on the America’s Cup.

Chair Randolph mentioned that he and Commissioner Gibbs had just returned from Salvador, Bahia, Brazil regarding an initiative proposed to BCDC by representatives from the state of Bahia for cooperation around sea level rise and coastal management.

This was a good opportunity to see the Bay of All Saints, which is the reason for the relationship with BCDC.

We signed an MOU with them and we will be hearing more from them and we’ve offered them whatever kind of technical assistance we can provide if they come up with their own plan.

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

a. Budget. In September I informed you that we had to develop a plan for cutting our expenditures by $129,000 this fiscal year and submit this plan to the Department of Finance and the Governor’s Office.

We did so and our plan was approved. As a result, we are no longer subject to either the state hiring freeze or the in-state travel freeze.

b. Office Lease. In March, I informed you that we have to move out of our current office by April 2013. BCDC must, by law, have its office in San Francisco so the Department of General Services, the state agency that is in charge of finding office space for us, has begun looking for rental space for us near our current office.

On July 21st, you concurred with our staff’s assessment that the best option for relocating our office would be for BCDC to become a tenant in a building at 390 Main Street, about five blocks south of our current office, which the Metropolitan Transportation Commission was considering purchasing.

In mid-October, MTC did, in fact, purchase that building with the goal of accommodating not only its staff, but also the staff of the Association of Bay Area Governments, the Bay Area Air Quality Management District and BCDC to create a new regional government center.

We think this is a sensational idea so we informed the Department of General Services that our preferred alternative is to co-locate with our regional Joint Policy Committee partners within the same headquarters building in San Francisco. But just in case renovations to the regional government building can’t be completed by the end of next year, or the space doesn’t meet state standards, or the rental price is too high, we’ll also continue looking for rental space in other commercial office buildings in San Francisco.

c. Personnel. We have another new intern on our legal staff. Penny Johnson will be with us until the beginning of next year. She has an undergraduate degree in communications from Cal State Chico and graduated with honors from Golden Gate University School of Law where she was Associate Editor of the Environmental Law Journal and worked in the Environmental Law and Justice Clinic.

d. Staff Reports. I want to call to your attention two reports we sent you recently. The first is a biannual report on regional issues and the Commission’s planning program that is required by our strategic plan. Joe LaClair is available if you have any questions on that report.

The second report is on the status of the Middle Harbor Enhancement Project at the Port of Oakland. This brief report is cover memo to the detailed response prepared by the Port of Oakland and the U.S. Army Corps of Engineers to Save the Bay’s concerns about the slow progress in completing the enhancement project.

We’ve also provided you with an e-mail message from Commissioner McGrath requesting a further evaluation of the project. We will take up his request with our LTMS partners next week.

Brenda Goeden of our staff, who prepared our brief cover memo, is out of town today, but representatives from the Port and the Corps are here if you have any questions about this matter.

e. Transition. As Chair Randolph mentioned, the Commission needs to remain actively engaged to ensure that the regional sea level rise adaptation strategy called for in the Bay Plan amendments you approved last month moves forward.

To assist in this effort, I have decided to make a personal transition in my professional life. I intend to retire as your Executive Director and become the Senior Policy Advisor to One Bay Area, the name BCDC and our three partners on the Joint Policy Committee have coined for our initiative to develop a comprehensive regional strategy that integrates climate change, economic development, transportation, land use, air quality and Bay protection.

I plan to take on my new responsibilities at the beginning of 2012. Over the next two months, I will be out of the office a good bit of the time as I begin to use up the extended amount of vacation time I’ve accumulated over the years.

Steve Goldbeck will be serving as Acting Executive Director during my absences. Because there are a number of variables that have to be worked out, as of today I don’t know the exact date of my retirement. Therefore, it’s quite likely that Steve will continue to serve as Acting Executive Director well into 2012.

I strongly recommend that you appoint Steve as my successor, but ultimately, that choice is yours. I’ll be available to work with you to make this transition as smooth as possible.

In this regard, I suggest that BCDC’s Joint Policy Committee representatives, along with others of you who are interested, include this transitional planning in the discussion we are planning to have at the informal meeting we’ve scheduled on November 23rd.

Needless to say, I haven’t made this decision lightly. I began my professional career at BCDC in 1970, I’ve been your Executive Director for over 16 years and, all told, I’ve worked for BCDC for over 28 years.

I truly believe that BCDC is one of the most effective government agencies in the history of the United States. Our staff, who I love and respect, are the best of the best. But the core strength of BCDC rests in you, the dedicated commissioners, who bring a rich diversity of perspective and expertise to carry out our mandate of protecting San Francisco Bay. Thank you for the opportunity you’ve given me to help you do just that.

I’ve often said I would never retire because I couldn’t imagine doing anything more enjoyable than what I do as your Executive Director. But meeting the challenges of climate change and working to help make our wonderful Bay region an even better place in the future is simply an opportunity I can’t pass up.

7. Consideration of Administrative Matters. Bob Batha was available to respond to any questions Commissioners may have about the matters on the listing.

Chair Randolph added: This is not your last report yet. It’s been an extraordinary period that you’ve presided over at BCDC. It has been for me personally an enormous privilege and pleasure to work with you and I’m sure it has been for all of our commissioners.

The energy and dedication that you’ve given climate change, especially these last couple of years, has really come to fruition and is really a tribute and a lasting, long-term contribution to BCDC and to our region.

8. Public Hearing and Vote on Initiating a Plan Amendment Process. Chair Randolph announced that Item #8 was a public hearing and vote on whether to initiate the process of considering an amendment of the San Francisco Waterfront Special Area Plan to allow vessel berthing as part of the America’s Cup races. Lindy Lowe presented the staff report on this item.

Ms. Lowe reported the following: This is a request to amend the San Francisco Waterfront Special Area Plan to allow the temporary use of all four open water basins designated by the Special Area Plan to allow for the berthing and mooring of yachts and vessels associated with the America’s Cup events in 2012 and 2013.

The Port of San Francisco and the America’s Cup Event Authority have requested as co-applicants to amend the Plan to allow the berthing and mooring of large private yachts and team racing yachts in the Brannan Street Wharf in 2012 and 2013, the berthing of large private yachts in a portion of the Rincon Point open water basin from Pier 14 south to the north end of Rincon Park in 2013, the berthing of large private yachts in the Broadway open water basin in 2013 and the berthing of a variety of vessels in the Northeast Wharf open water basin in 2013.

The request to amend the special area plan for the America’s cup events comes at a time when there are a number of other projects and proposals reshaping the San Francisco waterfront. Construction is underway for the Exploratorium, an amendment and permit recently approved by the Commission. The Commission will hear the proposal for Brannan Street wharf later in this meeting. The port is proposing a cruise ship terminal at Pier 27. The Exploratorium amendment resulted in a request to conduct a public process to evaluate planning for the San Francisco waterfront.

Due to concerns regarding the Exploratorium amendment and approval process, there was a request to conduct a public process to evaluate comprehensive planning for the San Francisco waterfront. Approximately 30 people, representing a broad range of organizations, were interviewed by one of two interviewers. These organizations included Save the Bay, The Bay Institute, the San Francisco Chamber of Commerce, San Francisco Tomorrow, the Bay Trail, neighborhood organizations along the entire length of the Port’s lands, industry groups and others. The interviewees were provided the questions and background material in advance and each interview was approximately one to two hours in duration. The majority of interviews were conducted one-on-one, with several including two people. The commission received a briefing In May of this year regarding the findings of these interviews and the port commission received a briefing several weeks later.

One perspective that became clear throughout the interviews is that it would be preferable for the Port and BCDC to assume a comprehensive view to planning the waterfront. Some stated that it would be quicker and more efficient to amend the plan on a project-by-project basis; but most believed it is preferable to review amendments in a broader context to ensure an equitable, transparent and successful outcome. They felt that approaching projects along the waterfront on a case-by-case basis and amending the plan as a reaction to them is unlikely to yield a waterfront that balances the public’s interests with commercial and economic investment goals. With the number of issues and projects that are being planned or are underway along the waterfront, along with the results of the interviews, it is important to review these projects together to ensure that the public benefits and development opportunities remain in balance and to use the results from the interviews to guide the development of public benefits that will serve as mitigation for projects like the America’s cup and the cruise ship terminal. Due to the timing of the America’s cup, the port and BCDC staff did not have the time to develop a planning process that may have resulted in a comprehensive amendment to the special area plan. So, we are approaching the plan amendments comprehensively and looking beyond the project sites to develop public benefits for the entire waterfront. In some ways, the America’s Cup event, happening along the entire San Francisco waterfront from Pier 80 to the Golden Gate Bridge is a great vehicle for looking at the waterfront comprehensively.

The request to use all four of the open water basins for the America’s Cup event includes an intensity and an amount of time that is inconsistent with the Special Area Plan policies for all four of the designated basins.

In many cases, the staff recommendation for a request to use all four of the designated open water basins for an event lasting several months would be that the commission not initiate the amendment. Even this case, BCDC staff, the port, the city and the event authority had to work very closely to reduce the impacts and preserve more of the open water basin area at Rincon Point to ensure that the public benefits required by the plan would still be achieved. Additionally, the America’s Cup events are an international event on the level of an Olympics or World Cup, events which inspire and appeal to a large audience and often require accommodations of their host cities due to the size and scope of the events. In order to balance the impacts to the public during the America’s Cup events BCDC staff, Port staff and the Event Authority as well as the City will be working together to identify public benefits that will occur both during and after the event.

Finally, while the amendment request concerns only the temporary use of the four open water basins there is a provision in the Host and Venue Agreement for the America’s Cup Events that is triggered by the dredging for the temporary uses proposed at Rincon Point Open Water Basin and Brannan Street Wharf Open Water Basin. The Host and Venue agreement provides the event authority with the right to negotiate the development of permanent marinas at both the Rincon Point Open Water Basin and the Brannan Street Wharf Open Water Basin. This amendment request is only for the temporary uses and a proposal for permanent marinas in either of these locations is inconsistent with the current plan and will require a separate proposal to amend the special area plan.

BCDC staff recommends that the Commission initiate the amendment to the Special Area Plan related to the proposals for the Brannan Street Wharf, Rincon Point, Broadway and Northeast Wharf open water basins.

Chair Randolph opened the public hearing on this matter.

Ms. Julie Ring commented: I am here representing Waterbar and Epic Restaurants on the waterfront. I am here to support this amendment.

Ms. Katy Liddell addressed the Commission: I am the President of the South Bay Rincon Mission Bay Neighborhood Association and I’m also a member of the Rincon Point South Beach CAC.

We need to note that the amendment request could include dredging at both basins. If these areas have to be dredged, which they probably would, that triggers actions to establish the rights to negotiate long-term use of these areas for recreational marinas.

I am absolutely opposed to the idea of having permanent recreational marinas in either of these open water basins.

Please, do not allow dredging of permanent marinas to happen. We don’t need more marinas.

Mr. David Lewis commented: I’d like to discuss the history since the Special Area Plan was updated in 2000 and what has and has not happened since then.

This update was an attempt to do a comprehensive plan and individual developments that have come about since then have resulted in very different kinds of development and less of the specific kinds of public access improvements that were contemplated at that time.

I agree that the America’s Cup represents a huge opportunity and Save the Bay is working with them to try and make this event as good as it can be, beneficial for the Bay and the City and the waterfront.

We believe that the America’s Cup can be accommodated on the waterfront in a way that accomplishes public access goals. However, there are a number of parts of their proposal that are not consistent with the Special Area Plan but also not consistent with the goals of this Commission and the goals of the City.

I encourage all of the Commissioners to instruct the staff to try to accomplish public access goals. We have contributed a number of specific ideas about other places on the waterfront not envisioned in 2000 that can provide public access benefits, including removing buildings behind the ferry building to open up views and public access both during and after the event.

Ms. Corinne Woods spoke: I am the Co-chair of the Port Central Waterfront Advisory Group, a Port waterfront tenant, a privatizer of the public trust.

There should be enforceable mitigation measures to offset the impacts of these short-term uses of the special areas.

The objectives of the Special Plan include increasing revenue to the Port. I don’t see that in the America’s Cup Proposal.

The public benefits that we’ve been trying to get on the central waterfront for years aren’t there yet. We don’t want to see Brannan Street Wharf built and then closed to public access for this event.

The idea of a permanent marina in either of these places doesn’t make sense. These are not places to put marinas that need parking because there is no parking in any of these places and there never will be.

Paul Nixon commented: I’m a member of the Central Waterfront Advisory Group and I’m also on the Board of Directors of Bay Access which is the human-powered boating group which has put together the idea of the human-powered Bay Water Trail and also the Board of Kayaks Unlimited.

The feeling I get from different users of the Bay is that they are concerned about not being able to use the Bay during preparations for the race event.

Are kayakers and other users of these areas going to be able to enter the space where the boats are berthed and moored? Obviously, on the days of the racing things will not be ordinary but how about those days when the actual racing is not taking place?

Ms. Jennifer Clary addressed the Commission: I’m President of San Francisco Tomorrow.

I also participated in the years and years of negotiations to create the Special Area Plan. This process was done so that we could have some certainty about what the waterfront was going to become and to have some protection from development pressures.

One of the concerns with the changes contemplated is that you are splitting off the temporary and long-term use and you’re also taking one big bite out of one big piece of the Special Area Plan.

What this proposal does is that it totally knocks out the open water piece and that’s the thing that I care most about in this plan.

We’re compromising all of the great open water views that currently exist for four months.

We suggest that you find a way not to use all four basins, even on a temporary level.

We also suggest that you find mitigation in creating new open water views and maybe keep an eye on the problem of the potential for dredging in the Rincon open water basin.

Ms. Christina Rubke commented: I am the Vice-Commodore for the Bay Area Association of Disabled Sailors. I’m also a member of the America’s Cup Organizing Committee and I’m also a lawyer across the street at Shartsis, Friese. I am speaking on my own behalf.

I am speaking in support of going forward with this amendment to the Waterfront Special Area Plan.

I urge your support on this.

Ms. Bridgette LeBlanc spoke: I am an elected board member for the San Francisco African American Chamber of Commerce.

I am asking that the Commissioners vote, yes, to initiate the process of considering an amendment to the San Francisco Waterfront Special Area Plan.

This will benefit San Francisco businesses and it will also add to the economic development for our city.

What happens with how we actually handle and move forward with the America’s Cup can also open up other opportunities for other events of this magnitude.

Ms. Penny Wells stated: I am a member of the Bay Access Board of Directors and also a sea kayaker.

As the America’s Cup planning process moves forward our concern is that there will be restrictions to access for small boats and for the public to get on the water itself.

If there could be an executive summary of the restrictions and the limitations on access that go with the America’s Cup could be presented to the community as well as the mitigations accompanying those limitations, it would be very helpful to us so that we would know how to respond.

Mr. William Robberson spoke: I am Bill Robberson with the San Francisco Board Sailing Association. We’re a not-for-profit organization founded approximately 25 years ago to both protect and enhance board sailing and now kite boarding access and also promoting and providing education on the same.

Throughout the America’s Cup planning process there has been very little discussion about access. I am here to encourage you to help lead the discussion about access.

We do look forward to supporting the America’s Cup but we feel it should be done in balance.

Ms. Deb Self commented: I am the Executive Director of San Francisco Baykeeper. We have been here for 23 years mostly acting on pollution matters.

Baykeeper is actively working with the City as a member of the Environmental Council to provide technical expertise and representation of a broad sector of the public and environmentalists to make sure that the City has access to our ideas during the planning process.

It’s really important to make sure that there is not an iterative planning process that results in a favoring of one particular recreational group over the others in the long term.

I feel concerned that the topic at hand is strictly focused on the short-term impacts to the waterfront when I believe that the long-term impacts are very much triggered by this process and should be incorporated so that the cumulative impact of the planning can be addressed in a thoughtful and comprehensive way.

The America’s Cup is something that Baykeeper is very supportive of and we believe there is a tremendous potential for raising the visibility of the Bay and educating people about this incredible asset that we have.

We don’t want to end up with any long-term impacts that are accidental and having marinas put in along the central waterfront and blocking access is something that we don’t to see happen by accident.

Mr. Brad Benson addressed the Commissioners: I am a Special Projects Manager with the Port of San Francisco.

We appreciate having a regulatory partner like BCDC to work with.

With respect to the America’s Cup the planning effort has been very intense. With respect to the Plan Amendment requests that are before you today we know that there has been a significant amount of controversy about this proposal.

This is a temporary amendment. The improvements that are going to go into these open water basins will be required to be removed by operation of the other permits that we’re soliciting from the appropriate agencies.

We are aware that there is the long-term marina issue that is triggered by dredging in these areas and that there remains a public concern about that.

We will continue to look at this issue through the City’s approval process.

I want to urge you to support the temporary requests before you today and we look forward to developing a public benefit package that retains division of the Special Area Plan.

Mr. David Osgood spoke: I’m President of the Rincon Center Tenants Association and ours is the closest residential building to the billionaire’s row of yachts that are being proposed at the north end of the Rincon Basin.

Nobody believes the City bureaucrats negotiated the better deal with Larry Ellison. We all know the City rushed into this.

Support for the America’s Cup trickles off when people learn of the lost Bay views, the lost access and the environmental damage that would be caused by dredging.

People also don’t want their views lost permanently to smaller marinas which amount to a sea of tangled mass and rigging.

The idea of dredging the waterfront and then turning it over to Larry Ellison is a real lose/lose proposition.

Dredging seems to be portrayed as this harmless removal of lifeless muck at the bottom of the Bay. But you should know that these areas are very rich with marine and plant life and scooping it out with a dredge is akin to weeding the Japanese Tea Garden with a bulldozer. It’s incredibly destructive.

We ask that you slow down, learn the details about what is actually being proposed. Don’t automatically believe all the pretty pictures they show you. Don’t just follow the San Francisco politicians but learn about the views that would be lost and understand that the public support for this is a mile wide but only an inch deep.

Mr. Garrett Greenhlaugh commented: I work for a number of companies down at
Pier 40.

As far as the basin below Rincon Hill, short term, we’re all for it, long term, not so much. We do like the open space. It currently provides anchorage for recreational boaters. So for the long-term view we would like to see that stay open, short term, we can deal with boats
coming in.

MOTION: Commissioner Nelson moved to close the public hearing on this matter, seconded by Commissioner McGrath. The motion passed by voice vote with no opposition or abstentions.

Commissioner McGrath commented: I’m certainly going to support opening a hearing and pursuing it but I’m also going to strongly encourage that the scope of the effort be widened substantially to look at existing public access opportunities and their disruption.

What has been raised here today is the long-term impacts of having a marina in breakwaters. This is also about the impact on existing users.

The physical prevention of access in areas where it has been established is a matter to be considered. There are possibilities that access would be restricted for current users of these spaces.

I am also concerned about the physical access areas. As a bicyclist I know that private viewing facilities are proposed to be put up on what appears to be public land. So the question is, what kinds of restrictions on public access are going to be established, is there going to be mitigation for them and to what long-term benefit?

Commissioner Chiu stated: I have been a long-time supporter of the America’s Cup. We all know the reasons why this will be an amazing opportunity for the Bay area.

I want to address the Rincon Point open water view issue. I hope that we will be able to ask our BCDC staff, as you move forward with this process of amending the Waterfront Special Area Plan that you look to retaining and strengthening the SAP language to limit additional fill in the open-water basins so that we discourage development of long-time uses that might require such fill.

I do not support the development of a marina at Rincon Point either now or in the future.

I do strongly support the component of the agreement that states that the Event Authority will recoup its investment but I don’t think that’s appropriate at Rincon Point at this time, or again, in the future.

I do have a question for BCDC staff whether you can address some of the mitigations around public access that you have considered around small boat access et cetera. I’m wondering if you have any thoughts on that.

Ms. Lowe responded: We have two processes going on. One is the plan Amendment. And this is the portion of the America’s Cup event that is inconsistent with the Plan.

The other process that is going on is the permit process for the America’s Cup events. And a lot of the public access impacts are being addressed in the permit process as well as the Plan amendment process.

In terms of whether or not there will be restrictions in the actual open water or there will be proposals to restrict the use of the open water basins by recreational water users; that’s been a question that has been posed to both the Port, the City and the Event Authority and it’s not something that we as staff are clear on.

Mr. Brad Benson of the Port of San Francisco stated: The Host and Venue Agreement contemplates short-term venue leases with the Event Authority for use of certain piers.

I don’t think that we have confronted requests to limit other recreational boating access in the other water areas around our piers. But it’s an issue that we’ll certainly take back and talk to the Event Authority about and make sure that if the concern is in those areas that there be recreational boating access – we’ll look at that.

Commissioner Gioia commented: As we think about mitigation necessary for short-term use, we need to think about the fact that if the America’s Cup is won by Larry Ellison’s team then they get the choice of having it come back here which means that the short-term use could end up being a potentially longer-term use.

We need to think that issue through because some are thinking of this as only improvements here for this upcoming America’s Cup when, in fact, it could be something that is ongoing over a period of time which will change the way we think about mitigation.

I’d like to hear what staff’s initial thinking is on that.

Ms. Lowe responded: We have asked this question as well and we have been assured and our reading of the Host and Venue Agreement makes it clear that the Event Authority doesn’t have any rights to these locations for a future event. They would have to negotiate another Host and Venue Agreement.

Under the current agreement, they are granted development rights to certain properties, such as Piers 30-32 if they either do not win or move the event to another location. If they were to win the event and decided to keep it in San Francisco it would be a new process.

Both in the amendment and in the permit we will have a date at which all of the fill would have to be removed from the open water basins.

Commissioner Gioia asked: What happens if they come back and say, well, we’re in a permit application process to extend this because the America’s Cup is going to come back at a future date?

Executive Director Travis answered: At that point we’re going to know an awful lot more about all of the impacts because we will have gone through it.

Commissioner Gioia added: Right. And I think this underscores why mitigation is a really important issue.

Executive Director Travis conceded and added: While the America’s Cup is kind of a permit application on steroids, it is essentially the same process.

People come in with expectations and our job is to temper those expectations to bring them into consistency with the law.

Commissioner Adams commented: I think there is support to finding our way to get there and the devil is in the details. I appreciate Commissioner the verbal commitment about not considering development if the dredge is triggered.

But having been on a board where we didn’t have that in writing from other land use issues, unless there is a way to make sure that we capture that and ensure that that’s not going to happen; it needs to be in writing.

It can’t just be a promise because elections come and go and people come and go and the next person that sits in your seat might not have the same sentiment that you’re sharing with us right now.

We need to have more detail in the mitigation aspects of this and also another issue that was raised in the public testimony was the enforceability of it.

And so what happens if those mitigations aren’t being met and how do we enforce those?

And certainly the issue of access resonates well with me for people that are users but then the other issue that comes along is security and how do we deal with the security of a number of users of the water with some boats out there where there might be some people that have some nefarious designs on some of those big boats.

I haven’t seen anything in the documents that have talked about this as well. So while I support the whole concept of a temporary allowance for this event, I think that we haven’t quite gotten it to the place where we can reassure the community and those others on the Commission that might have some concerns about the detail.

Commissioner Halsted added: I do have the same concerns about the open water basins, particularly the Rincon Point as well as the others. In the long term I would not be willing to compromise the open water basins.

I have a great deal of concern about access. I also need to understand our process a little better as far as timing and knowing when we will know what the public benefits would be and the public needs to know as well.

Ms. Lowe added: This is just the initiation of the looking at the issue of the Plan amendment. During the Plan amendment process we’ll be working very closely with the Port, the City and the Event Authority to identify specific mitigation measures both in the Plan amendment as well as the permit.

Commissioner Nelson commented: I hear a general support for moving forward with the America’s Cup in a way that’s appropriate and balanced, support for implementation of a special area plan that’s evolving over time and being clear about what’s a temporary use and what’s not.

The genius of a special area plan is striking an appropriate balance between preserving public uses of a public resource and encouraging economic development and other uses that can produce a thriving waterfront.

Most of the comments here have focused on two areas: teasing out the difference between temporary uses and permanent uses and issues about the Special Area Plan in particular.

The direction we want to give to staff is that they need to work hard to make sure that we’re limiting temporary impacts and taking great care to make sure that temporary impacts are temporary and that we’re not engaged in an effort that will unintentionally turn into long-term decisions and to be very thoughtful about mitigation for those temporary impacts.

In regards to the comment letter that we have received I read it as not that the authors are opposed to this event but rather that they see a risk. That we’re taking a special area plan that was thoughtfully developed and simply modifying on a case-by-case basis and that over time we’re losing the balance in that plan. I think it’s important for us to step back and take a hard look at that.

Chair Randolph agreed with Commissioner Nelson and added: I subscribe to Commissioner Nelson’s remark about the need to be very, very conscious and cautious about the possibility of inadvertently backing into a permanent situation from the temporary accommodations.

Commissioner Carruthers: I want to second our Chair’s support of Commissioner Nelson’s remarks.

I’d like the staff to look at the letter from the three organizations and address how we’re proceeding and how it relates to their concerns.

I hear reference to an agreement about if the Rincon Point Open Area Basin is dredged; it conveys certain rights to the dredger to negotiate for something. I would like to understand that more. I don’t understand that at all.

And I’ve heard some reference to some of the agreements with the Event Authority gives them some rights to various development options along the waterfront. I’d be very concerned that that doesn’t become, inadvertently, a subverting of the Special Area Plan.

I would be concerned that rights would be created which would automatically allow whatever in the future to bring forth development proposals that are quite contrary to the Plan.

I don’t want to see us undercut the long-term implementation of the Plan through the permits and through the agreements of the Port with the Authority.

Ms. Lowe responded: What you’re referring to is the Host and Venue Agreement that the City and Port entered into with the Event Authority. It does have a number of provisions for the right to negotiate developments, opportunities on certain piers as well as in two of the open water basins, the Rincon Point Open Water Basin and the Brannan Street Wharf Open Water Basin.

For the open water basins, it’s just the rights to negotiate which means they have to go through the full permitting process if whatever it is they’re proposing is inconsistent with the Special Area Plan or some other plan; they would have to propose an amendment.

There is nothing that becomes automatic in the Host and Venue Agreement, any changes in use will need a permit from BCDC and if it is inconsistent with the special area plan, then it will need a plan amendment. None of what it is that we’re doing in either the permit process or the Special Area Plan Amendment is blessing the Event Authority’s Host and Venue Agreement with the City and the Port.

It is not an agreement that BCDC signed on to and neither our permit decisions or our amendment decisions will make us signatories to that.

Commissioner Carruthers added: I as one member of this Commission would want it made exactly clear to the parties to those agreements that there is no guarantee that any proposal that they would make would be approved by this Commission and that we’re looking for consistency with the Special Area Plan.

Commissioner Bates commented: This event is being put on by the ultra-rich for the ultra-rich. We happen to be in a situation where we’re going to get some economic benefit because they’re having it here.

We have to be really, really careful and people should understand that we shouldn’t be giving these people anything. They’re coming in here and asking us to roll over backwards and what are we going to get out of this?

We’re going to get some economic, short-term tourists and trade and some jobs. So we really have to keep our eye on what is going to happen when it’s over?

And are we going to be better off because we had it? So I think it’s essential that our actions not be seen as a giveaway to Mr. Ellison and the other people who are involved in this.

I mean the one percent is here. They’re going to be here in the Bay area. This is no joke.

This is a double-edged sword. I think the public has to have access and the public has to be able to be involved and be able to get some benefit out of this.

At the same time, there’s going to be a tremendous security problem. What’s happening today, with the occupy movement, is not going away.

Commissioner Chiu commented: You can rest assured that the Board of Supervisors and the city officials here in San Francisco fully intended that if there’s any future discussion around development rights, we agreed in certain circumstances to provide rights to negotiate development rights but not the rights themselves.

It was absolutely intended that if Mr. Ellison and his team wish to do any type of development or wish to have any sorts of actual rights, they not only have to go through our planning process and our Port process, our mayor, our Board of Supervisors, but they have to come to the various state agencies that have to give approval, particularly this body.

From my perspective we have belts and suspenders and more belts and suspenders to make sure that we’re all being protected as the Bay area as part of the 99 percent.

Commissioner Carruthers added: I just wanted to reinforce the idea of casting a wide net for mitigations.

Chair Randolph asked for a motion and a second on the staff recommendation for this item.

MOTION: Commissioner Fergusson moved this item, seconded by Commissioner Chiu. The motion was voted on by a show of hands. The motion passed by a vote of 19-0-0.

9. Public Hearing and Vote on Shoreline Public Park. Chair Randolph stated Item #9 was a public hearing and possible vote on an application from the Port of San Francisco to construct a new public waterfront park at Brannan Street along the Embarcadero. Ming Yeung gave background on this project.

Ms. Yeung presented the following: The project is located along the San Francisco waterfront between Brannan and Townsend Streets in the Rincon Point South Beach area and is one of three public plazas required in the Commission’s San Francisco Waterfront Special Area Plan.

The project involves the construction of an approximately 58,700 square foot pile supported park over the Bay in place of former Piers 34 and 36 with a public boat launch and gangway.

In addition, a portion of the concrete seawall and the Embarcadero Promenade would be rebuilt and strengthened and portions of the concrete art ribbon along this stretch of the Embarcadero would be flattened to increase access to the new park and improve access along Herb Caen Way.

In total, the project would result in approximately 63,100 square feet of new and improved public access and a net increase of 63,400 square feet of Bay fill.

The project will also result in a net increase of 176,200 square feet of Bay open water within the Brannan Street Wharf Open Water Basin.

The staff believes the proposed project raises four issues.

One, whether the project is consistent with the San Francisco Waterfront Special Area Plan.

Two, whether the project is consistent with the Commission’s fill policies, including safety of fills and sea level rise.

Three, whether the project is consistent with the Commission’s public access and scenic-view policies.

And four, whether the project is consistent with policies on natural resources including water quality and fish, other aquatic organisms and wildlife.

At this time Dan Hodapp from the Port of San Francisco will provide a more detailed description about the project.

Mr. Hodapp commented: This project will be a new public space defining the center of the South Beach neighborhood.

In the year 2000 BCDC, while working with the Port, amended the San Francisco Waterfront Special Area Plan. With the adoption of these changes several heretofore impermissible developments took place.

This project will enhance and improve property that is currently characterized by dilapidated and failing wharf and pier sections.

The major project components which originated from the public design process will improve public access.

A number of measures were taken into account for sea level rise as anticipated into the next 50 to 100 years.

Insofar as sustainable design is concerned, we are following LEED practices on open space projects.

We believe this project is consistent with the San Francisco Waterfront Special Area Plan and other BCDC policies. This is intended to be a simple, fun and sustainable project.

Steven Reel from the Port of San Francisco addressed the Commission: I am the Project Manager with the Port of San Francisco. I will discuss the engineering, construction and the anticipated scheduling of this project.

A sustainable project goal is a 75-year design life. To achieve this goal in a seismically active area, we’ve looked to performance-based engineering techniques to provide appropriate design levels. We’ve designed minimum standards that go beyond what is required by code.

Construction impacts will impact public access to varying degrees contingent upon the actual phase of construction taking place.

We are taking measures to minimize the effect of construction on aquatic life in the area.

Scheduling has been delayed due to a technical error. Construction is due to be completed by June of 2013, just in time for the America’s Cup.

Chair Randolph asked for public comment on this item.

Ms. Corinne Woods commented: We’ve been working on this project for a long time. We need it built. Please vote to approve this project.

Unless we do the America’s Cup right it will no sooner be opened than they’re going to close it to public access.

We should also consider the fact that phase 2 is really important to this project and should be considered a legacy project for the America’s Cup and potentially a mitigation for some of the privatization that will take place.

Ms. Shelley Carroll commented: I am a member of the Rincon Point South Beach CAC and I am speaking for myself.

I urge you to vote for this project and consider public access all the way through the time of the America’s Cup.

Speaking for Marilynn Smith who is also a member of our CAC, she says, this will provide continuity to the open space along the Bay between the Ferry Building and the ballpark.

Ms. Katy Liddell spoke: I am president of the local neighborhood association and a member of the Rincon Point South Beach CAC.

We have an opportunity with phase 2 that could be a legacy project for the America’s Cup.

Let’s just do this and get on with it. We’re really excited.

Mr. Paul Nixon commented: This would be a great legacy to complete the whole thing. I hope you approve of this project now.

Ms. Jennifer Clary stated: I totally support this project and hope that the timeline for approval and completion of future work will be speedier than what has happened to date.

Chair Randolph called for a motion and a second to close the public hearing on this item.

MOTION: Commissioner Goldzband moved to close the public hearing, seconded by Commissioner Wagenknecht. The motion passed by voice vote.

Vice-Chair Halsted commented: I wonder if there are any funds set aside for maintenance of this project in the future.

Mr. Hodapp responded: Funding of maintenance for this project and other open-space projects – the Port has agreed to take on the expanding maintenance as it transitions from a traditional cargo port to an urban waterfront.

This is done through its operating budget. Right now the Port is maintaining Rincon Park for the Redevelopment Agency and the Port will be assuming the cost of that in about a year or so.

Vice-Chair Halsted responded: I was under the impression that Rincon Park was funded partly through the Redevelopment Project.

Mr. Hodapp replied: Redevelopment Agency is paying for it and it is the Port’s maintenance staff that is performing the maintenance. And we’ll be taking over the cost of that in about a year or so.

We are approaching this project to reducing maintenance through design.

Commissioner Goldzband commented: You mentioned that the Port or the City plans to close a portion of the northern roadway during deconstruction.

Baseball season starts in April and you had deconstruction through June. So how will deconstruction not be during the baseball season?

Mr. Reel replied: That closure is only for construction of phase 2 and not the first part.

Chair Randolph inquired: In phase 2 there’s a reference to placing approximately 1,800 cubic yards for abatement along the base of the wall extending Bayward approximately 50 feet covering 850 square feet of the Bay floor.

Where does that rock or abatement go exactly?

Mr. Reel answered: It’s riprap. The purpose of it is to reinforce the bulkhead seawall in that section.

Commissioner Fergusson: Funding sources is a driver to how the project was designed in phases. Can you talk a little bit more about that and also other drivers for how this was divided into phases.

Mr. Reel replied: Funding is the main driver and we have a certain pot of money. Most of the money is in building the wharf structure.

You get most of the function of the park within the phase 1 boundary that we set. So it makes sense structurally. It makes sense functionally. And it turns out that it just fits our budget and this depends on the amount of money we spend on demolition.

Commissioner Fergusson then inquired: And so proportionately, how is the funding allocated to the three phases?

Mr. Reel answered: We’re still fine-tuning our numbers but for demolition that’s going to be about seven and a half million dollars. There’s federal funding for that of 4.6 million dollars and the Port has to match a third of whatever the cost is.

Phase 1 is 13 million dollar construction costs.

The Phase 2A is in the ballpark of three million dollars.

And Phase 2B is about 1.4 million.

Commissioner Nelson commented: Could you walk through how the Special Area Plan fill crediting process works?

Ms. Yeung replied: The Special Area Plan had contemplated that with the removal of Piers 34 and 36 and the construction of the Brannan Street Wharf that there would be a removal of about 140,000 square feet of fill.

After we’ve calculated it all with the construction of the Brannan Street Wharf and the removals of Piers 34 and 36 it looks like they’re actually removing more fill than is required in the Special Area Plan, actually 176,500 square feet.

Commissioner Nelson continued: So for the purposes of the Commission, as we’re determining minimum fill necessary for the project and so forth, we need to look at this project which in isolation has a net fill of 60,000 square feet; we need to look at it in the context of a larger Special Area Plan because of the crediting arrangement for fill removal.

Ms. Yeung agreed and stated that there is going to be a net increase in fill just for the park itself. But if you look at it in the context of the Special Area Plan and the removal of 34 and 36 we’ll actually be gaining more open water in the area and the size of the Brannan Street Wharf will be greater than is required in the Special Area Plan as well.

Commissioner McGrath commented: And that size is four acres, is that correct?

Ms. Yeung answered: Yes.

Commissioner McGrath continued: Is that fill all removed from this area south of the Bay Bridge?

Ms. Yeung replied: Yes.

Commissioner McGrath added: So it’s not importation of fill credits from outside of the area?

Ms. Yeung responded: No. It’s actually at the site.

Commissioner McGrath continued: So it’s a net increase in Bay surface of 4.05 acres.

Ms. Yeung gave the staff recommendation as follows: The staff recommends that the Commission approve the major permit for the Brannan Street Wharf Project.

This recommendation includes a number of conditions designed to assure that the project is consistent with the Commission’s Bay Plan and San Francisco Waterfront Special Area Plan policies.

The Wharf has been designed to be consistent with the policy requirements of the Waterfront Special Area Plan in size, fill removal and function.

The recommendation includes a condition for final plan review approval of all public access improvements to ensure that all areas of the park are barrier-free and reflect the recommendations of the Commission’s Design Review Board.

The recommendation also requires the raised concrete art ribbon along this stretch of the Embarcadero to be flattened to increase access to the park and along the Promenade.

To address the Commission’s policies on safety of fills the recommendation requires approval of a seismic instrumentation plan consistent with the recommendation of the Commission’s Engineering Criteria Review Board.

Finally, to address the Commission’s policies on natural resources, conditions have been included with pile driving restrictions, required best management practices and required approval of a final incidental harassment authorization from NOAA’s National Marine Fisheries Service before work can commence.

As conditioned, the staff believes that the project is consistent with the Commission’s law, Bay Plan and Special Area Plan policies regarding Bay fill, public access and natural resources and recommend approval of the staff recommendation.

Chair Randolph asked the representatives of the Port if they agreed with the staff recommendation.

Mr. Hodapp replied: Yes we do.

VOTE: The motion carried with a roll call vote of 16-0-0 with Commissioner Fergusson, Bates, Chiu, Kato, Goldzband, Groom, Jordan Hallinan, McGrath, Moy, Nelson, Richards, Adams, Carruthers, Vierra, Vice Chair Halsted and Chair Randolph voting “YES”, no “NO” votes and no abstentions.

10. Public Hearing on Plan Map Amendment. Chair Randolph stated that Item #10 is a public hearing on proposed revisions of the San Francisco Bay Plan port priority use designation at Hunters Point in San Francisco. The Commission will vote on this amendment at our next meeting. Linda Scourtis will present the staff report on this item.

Ms. Scourtis presented the preliminary staff recommendation on proposed Bay Plan Amendment Number 2-11.

The San Francisco Redevelopment Agency has applied to the Commission to amend the San Francisco Bay Plan and the San Francisco Bay Area Seaport Plan by removing the port priority use area designation from the Hunters Point Shipyard.

The Commission voted to initiate the amendment process July 7th of this year.

Deleting the designation would facilitate the San Francisco Redevelopment Project for Hunters Point.

The Commission authorized a modification of the Candlestick Point Park priority use area boundary during its August 4th meeting to facilitate the redevelopment of the southern portion of the overall Candlestick Point-Hunters Point Shipyard Project.

Multi-use functions would be established under the proposed stadium project.

To consider removing the port designation, the Commission must find that the cargo assigned to Hunters Point could be handled at alternative sites.

The Seaport Plan designates port priority use areas at the five Bay area ports and other sites deemed suitable for future terminal development.

Annual monitoring conducted by Commission staff since the mid-1990s has shown that break bulk cargo has fallen well below projected levels and this trend is projected to continue.

Removal of the Hunters Point designation will not adversely affect the goal of the McAteer-Petris Act to reserve adequate and suitable areas for maritime port use, and will not lead to filling of the Bay for new terminals.

The staff preliminarily recommends the Commission amend Bay Plan Map 5 and corresponding Seaport Plan findings, policies and maps to remove the designation from Hunters Point.

Staff also recommends the Commission revise Resolution 16 to remove Hunters Point.

And finally, the staff preliminarily recommends that the Commission find that the environmental assessment reviewed impacts of the larger project as a whole and found that there are no substantial, direct environmental effects related to the amendment and that the amendment is consistent with CEQA, because in the project EIR and as outlined in the EA, changes to the redevelopment project are within the responsibility and jurisdiction of other public agencies and BCDC through its permit review.

Staff is not recommending at this time that the Commission adopt the revised projection as the formal Seaport Plan forecast but, instead, that a complete forecast for all cargo types be developed when the Commission undertakes a full update in the Seaport Plan.

Mr. Wells Lawson presented the following: I am with the San Francisco office of Economic and Workforce Development.

We are looking at a number of public access enhancements to be established at Hunters Point once the designation is changed.

Chair Randolph opened this item for public discussion.

Ms. Linda Richardson spoke: I’m representing the Bay View Hunters Point Project Area Committee and this is a community group that for the last two decades has been working with BCDC, the Mayor’s Office of Economic Development and all the regulatory entities to bring about the final development of the shipyard project.

We are in favor of your staff recommendation to delete the port priority use area designation.

The World Architectural Committee has actually endorsed this project, the transportation elements, the infrastructure development and the open space and parks upgrades.

We urge your support on this project. I would like to commend the excellent work of Mr. Will Travis. When I was a member of BCDC I had the opportunity to see how this man works with the staff and the community and I think Mr. Travis’ legacy is here in the Bay area and his work speaks for itself.

Chair Randolph asked for a motion and a second to close the public hearing on this item.

MOTION: Commissioner Goldzband moved to close the public hearing, seconded by Vice-Chair Halsted. The motion passed by voice vote.

Commissioner Adams commented: I was wondering how the revamping of the Candlestick Park stadium fits in with the stadium project Santa Clara is proposing.

Commissioner Chiu responded: San Francisco remains eternally optimistic and we are hopeful that our counterparts to the south may not be able to come up with their financing and if so, we are ready to take back the Forty-Niners with open arms. That’s my personal perspective.

Commissioner Nelson commented: Obviously the purpose of the Seaport Plan is to make sure that we don’t make permanent decisions and then wake up at some point and find that we don’t have adequate port capacity.

I want to make sure that the break bulk port capacity referenced in the report attributable to Redwood City and San Francisco is existing capacity and not capacity that we hope may at some point come on line.

Ms. Scourtis responded: Both designations apply to marine terminals.

Chair Randolph moved on to Item 11.

11. Briefing on the Delta Plan. Item #11 is a briefing on the status of the development of a plan for the Sacramento-San Joaquin River Delta. We have the pleasure of being joined by the Honorable Phil Isenberg, the Chair of the Delta Stewardship Council, who will provide this briefing to us.

The Honorable Phil Isenberg presented the following: The EIR that will be released one minute after midnight tonight will be discussed.

First, we are three to four months late and I find this irritating. I have spent the last 18 months demanding that we comply with the statutory mandate and we have not done that.

We have to develop and adopt a plan that contains both regulatory and non-regulatory elements.

We have to do a full environmental impact report. It’s a programmatic impact report. It’s kind of like a general plan in some ways.

In spite of the fact that many lawyers tell us it’s a planning document not a project document we must treat the possible plans that might result if other agencies did what we asked or told them to do as if it were a project document.

This is the first time in California history that a statute has declared that protecting, restoring the Delta ecosystem is co-equal to the statewide goal of water reliability for California.

The Delta Plan has produced 12 policies which are regulatory in nature. We also have 61 recommendations in this document.

The legislation has one feature that gave it teeth. The Legislature constructed something called a “covered action”, which is required to be consistent with the Delta Plan.

And the covered action is a plan, a program or a project done by a state or local agency that meets the following test:

  • One, will occur in whole or in part in the Delta or the Suisun Marsh;
  • Two, will be carried out, approved or funded by the state or a local public agency;
  • Three, is covered by one or more of the provisions of the Delta Plan;
  • And four, will have a significant impact on the achievement of one or both of the co-equal goals or the implementation of government-sponsored flood control programs to reduce risk to people, property and state interests in the Delta.

The law requires that a covered action be consistent with the Delta Plan.

As we developed this process we concentrated on the policy areas the Legislature told us to pursue.

First, on water reliability, only because it was put in front. It is not more important but co-equal, water reliability for California.

We have a statutory duty to promote needed facilities including conveyance and storage facilities.

We have an obligation to promote statewide water conservation.

We have an obligation to follow a deliciously new statute language adopted by the Act which says, it is the policy of the state of California to reduce the reliance on the Delta for future water supplies.

This has turned into a major issue because we take that mandate quite seriously.

The reduction of reliance on the Delta for water supplies is tied to the policy of regional self-sufficiency in water. This concept has been around for 15 years.

This is the concept that states that regions should rely on resources of their own as much as possible.

The Delta Plan says that when people with a covered action come to the Council to determine consistency, they must present information that shows that they are, in fact, pursuing and developing the alternative sources of water consistent with their ability to do so, and this has disturbed many of the water agencies in California.

On the ecosystem side, there are many things that contribute to a deteriorating Delta ecosystem.

It’s pretty clear that, in order of importance, it’s habitat and the changes that have been made in the last 161 years in the state and the question of water, the flows, the levels, are important issues.

Urban pollution and runoff have an impact on the Delta ecosystem.

The law on co-equal goals means that we ought to be paying attention to all of these.

Everything is an issue as far as stressors go. The question is how serious are those issues and more importantly, do you have the ability to do anything about it?

We have lost in excess of 90 percent of habitat in the Delta in the last 161 years and I believe this plan is aiming at a restoration of approximately 10 to 15 percent of the land mass as a goal over the next 100 years.

We have a potential appellate role in the Bay Delta Conservation Plan. We are directed in the statute to incorporate BDCP into our plan if it meets the test of law, if the Department of Fish and Game says it meets the test imposed by the statute and the feds give a waiver from the Endangered Species Act.

But any person can appeal the Fish and Game decision to the Council.

BCDC staff has said that our habitat and water quality stuff is okay which means you’re going to punch us in the nose sometime soon on water reliability and maybe levees in the Delta.

I urge you to get your comments in as expansively as you think are justified in your view and get them to us fast.

Assuming we take final action as we plan to in late March or early April we have to implement the Delta Plan and we have to try to avoid fights between competing jurisdictions, particularly with this odd situation where the Suisun Marsh was attached to the Delta in statute.

One of the things we’re required to do, if we think it’s wise, is to go to the federal government and ask for a coastal zone acknowledgement comparable to this CZMA that you’re familiar with.

Commissioner Nelson commented: Do you have a sense yet of whether you’re 50 percent of the way through writing that plan, or 90 percent of the way?

Mr. Isenberg replied: Well, first of all, on the regulatory side of things, I think we’re 90 percent of the way there.

On the recommendations, I think we’re going to be open on changes there. That would probably not require a recirculation of the EIR.

On the content of the policies I think we’re about 90 percent there. And on the shape of the recommendations a little less than 90 percent.

Commissioner Nelson then asked: Having read all five of your drafts, most of your actions contemplated are within the next decade or two. Do you have a sense of how the Council is going to think about the out years in that planning process?

Mr. Isenberg answered: The farther out you get the more you tend to revert to process recommendations because you’re less certain about what the facts are going to be.

I think we’re going to remain uncomfortable with our far distant horizon.

We’re most comfortable with a couple of things. If you have a covered action you have to assume a sea level rise roughly 55 inches by the year 2100 which is now being adjusted upwards slightly by both the feds and the locals.

The second thing is unresolved at this point: Are the voters of California willing to support anything, whether ecosystem or water reliability, with money?

The debate going on now is to whether the bonds which are scheduled for next November on the ballot will be continued, shrunk, or modified, and it’s bubbling to the surface. These are signs that there is some political ferment because nobody wants to go on the ballot and lose something really significant on water and ecosystem obligations.

Commissioner Carruthers commented: My question lies beyond the specifics of your project but it’s related to it. I don’t see how we can conserve the Delta as long as San Joaquin landowners can sell their water far outside the Valley.

How can we continue to suck water out of the Valley and at the same time say that we can conserve the Delta?

Mr. Isenberg replied: The role of this body is to temper unrealistic expectations and bring them in compliance with the law. And that’s awful good as a perspective.

All of Northern California act as if the water that they can see is their water and they own it. Water is not owned by any individual, any business or any corporation.

There is a legal right to use water, but subject to terms and conditions imposed by society.

Article 10, Section 2 of the State Constitution states that you have to use water beneficially and it has to be reasonably used, no wasting. This is likely to be one of the biggest enforcement tools against all of us in the years to come because the water supply is tightening.

My personal view is that the biggest problem in the Central Valley is the continued drawdown of the Tulare Basin Aquifer, the largest underground aquifer in the state of California. And we’ve been overdrawing that aquifer for almost a hundred years.

One of the unanswered questions on underground water is, if people use up all their underground water supply or pollute it so much that it is unusable or too expensive to use compared to other sources, are they automatically entitled to replacement surface water, and if so, who has to reduce their use to provide the replacement water?

Davis and Woodland have exhausted their underground waters and they want to replace that with surface water supplies, and the Water Board said yes.

The problem is us collectively as a society. The worst thing that has happened in the water debate in California in my version is we’ve spent all my adult life trying to find the one evil villain who, if we could punish that person, interest, economic area, geographical region, all the problems of California would be solved for all times. Nonsense.

Northern California uses and prevents from entering the Delta more water than is exported from the Delta.

Commissioner Carruthers interjected: You just said something really important that I didn’t understand about Northern California using more –

Mr. Isenberg replied: Yeah. I’ll take Sacramento as an example. We always said, we return our water to the river but what we mean is, on average we return about 57 percent of the water we use to the river because the rest is put in the ground and all of that.

And two-thirds of the water in the state evaporates. And when you use water and re-use water as we all want to do, the water is warmer and it picks up trace elements and pollutants that inevitably occur in agriculture, in urban areas and in our lives.

The past accepted idea was that we all knew that Southern California was the villain and yet only 17 percent of all the water that gets exported from the Delta on the average, runs across the Tehachapis.

Adult conversations about water require us to acknowledge our own responsibilities for these things and we can get through the next decades to come if we are honest and upfront.

I hope the Council starts to speak in simple English about all of this stuff as opposed to the code talk we all use in government and life which is not wanting to say clearly what you believe because it’s going to offend somebody.

The advice from the BCDC staff is focused and it’s very productive.

Commissioner Goldzband asked: Have you seen over the past two or three years any kind of change in attitude in either northern or central California, much less southern California with regard to having what you call an adult discussion?

Mr. Isenberg replied: The environmental community has had the closest thing to a realization that when we all oppose the peripheral canal it was at least an implicit assumption things wouldn’t get worse. Wrong. It did.

The inability to say in public what you say in private corrupts the political debate in America on many, many things and it certainly does on the water in California.

The water debate is historical and it’s about regional antagonisms, not just water. Economic competition always has been part of it.

Commissioner McGrath commented: Mr. Isenberg, it’s always a pleasure to listen to you and I’m happy that you mentioned economics.

12. New Business. No new business was discussed.

13. Old Business. No old business was discussed.

14. Adjournment. Upon motion by Commissioner Goldzband seconded by Commissioner Vierra the meeting adjourned at 4:15 p.m.

Respectfully submitted,
Executive Director

Approved, as corrected, at the San Francisco Bay Conservation and Development Commission Meeting of December 1, 2011