Minutes of July 19, 2012 Commission Meeting

1. Call to Order. The meeting was called to order by Chair Wasserman at the Metro Center Auditorium, 101 Eighth Street, Oakland, California at 1:10 p.m.

2. Roll Call. Present were: Chair Wasserman, Vice Chair Halsted (represented by Alternate Chappell), Commissioners Addiego, Bates (represented by Alternate Butt), Chan (represented by Alternate Gilmore), Chiu, Fossum (represented by Alternate Pemberton), Gibbs, McGrath, Moy, Nelson (represented by Alternate Ranchod), Pine, Randolph, Sartipi, Sears, Techel, Vierra, Wagenknecht, and Ziegler.

Chair Wasserman announced that a quorum was present.

Not present were: Association of Bay Area Governments (Apodaca), Sonoma County (Brown), Santa Clara County (Cortese), Department of Finance (Finn), Contra Costa County (Gioia), Governor’s Appointee (Jordan Hallinan), U.S. Army Corps., of Engineers (Hicks), and Solano County (Spering).

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

Seeing no speakers, Chair Wasserman moved on to Item Four, Approval of the Minutes.

4. Approval of Minutes of the June 21, 2012 Meeting. Chair Wasserman entertained a motion and a second to adopt the minutes of June 21, 2012.

MOTION: Commissioner McGrath moved, seconded by Commissioner Sears to approve the June 21, 2012 Minutes. The motion carried by voice vote with five abstentions, Commissioners Moy, Vierra, Ziegler, Wagenknecht and Pine abstained.

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

a. AB 57. This bill added two members to MTC, one from San Jose and one from Oakland. It passed and was signed by the Governor. The signed bill also has an additional provision that the BCDC representative to MTC must be a resident of San Francisco and must be approved by the Mayor of San Francisco.

b. Building Move. I have talked with the Governor’s office regarding our move. In concept, they absolutely support our co-locating with the other regional agencies. However, given the budget crisis facing the state, they are not prepared to assist us in doing that, rather than moving into the state building, nor in helping us in making sure we could be released from that lease once we move in.

This is important as once a state agency moves into the State building – you can move out, but you need to continue paying rent until the Department of General Services finds someone to replace you. The Governor’s representative however, did say that, assuming we move in, they would be prepared in a year or two or three down the road, if we still want to co-locate with the other regional agencies, they would help find another agency to take over our space at the State building.

Vice Chair Halsted, Steve Goldbeck and I attended the Bay Area Headquarters Authority (BAHA) meeting at the 390 Main Street building, where it was announced that the date for moving into the building is not until the second quarter of 2014. Our lease is up in March of 2013, which presents a problem.

We are in the process of negotiating a six month lease extension with the landlord. This is important because we are still negotiating in terms of where we locate in the State building.

The bottom line is that we will almost certainly be moving into the State building at Civic Center for some period of time.

c. JPC Meeting. The Joint Policy Executive Committee, which consists of the Chairs and Vice-Chairs, held a meeting on July 9th. The meeting was intended to be a discussion with Senator DeSaulnier on his thoughts about regional government and some of the approaches he would like to see that would mitigate the need for a variety of pieces of legislation that he has introduced. However, he had to attend a funeral and was not there.

We did have a good discussion about some guiding principles that he had given us and passed a motion that I think will lead to some productive results. The motion was to invite business community representatives to the JPC meeting which is taking place here tomorrow, where a report will be given on the status of the Regional Economic Development Strategy Framework and the motion directs the JPC consultants and the staff of the four agencies to work with the business community and others in drafting an action plan to assess the needed elements of a regional economic development strategy, the likely costs of developing such a strategy and the potential sources of funding.

Much of the thrust of Senator Desaulnier’s guiding principles has been to charge the JPC with development of a regional economic strategy, that would cover 20 years. Some of us think that is not a very sensible timeframe.

d. Next BCDC Meeting. We will not need to hold our August 2nd and August 16th meetings. Unless some compelling need arises in the meantime, our next regularly scheduled meeting will be held on September 6th. At the September 6th meeting which will be held at the Ferry Building in San Francisco, we expect to take up the following matters:

(1) We will hold a public hearing and possible vote on a natural gas well in the Suisun Marsh.

(2) We will hold a briefing on the Bay Delta Conservation Plan.
e. 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 anyone who has had those and not informed staff to do so now.

Commissioner McGrath reported: I had a discussion this week with David Lewis and asked him for his opinion on Item 8. He hadn’t looked at it yet.

Chair Wasserman added: I did have a phone conversation and some written communication from Eddie Orton and some of his staff concerning the Richmond Point Development, which is the subject of an enforcement proceeding.

Commissioner Chiu commented: I had a brief conversation on the same subject as well.

6. Report of the Executive Director. Acting Executive Director Goldbeck reported:

a. State Budget. The final state budget does not make any changes to your budget and does not include the “go dark Friday” proposal. It does include a 4.62% decrease in the hours and thus the take-home pay of state employees.

b. Personnel. On personnel matters, as you may recall, we have two vacancies in the planning division created by the recent departures of Jessica Davenport and Tim Doherty. I'm pleased to report we've found two excellent candidates to fill these vacancies,

Page Perry will join the planning staff as a Coastal Planner. Ms. Perry holds a Bachelor of Science degree in International Relations from Stanford University and a Juris Doctor from Tulane University Law School and is licensed to practice law in California. Ms. Perry has five and a half years’ experience as a practicing attorney with over three of those years focused on environmental law. As an Associate at two different firms, Ms. Perry researched and documented claims under the Clean Water Act, California Environmental Quality Act, Resource Conservation and Recovery Act and other state environmental laws as well. As a project lead, she has assisted clients in reviewing and evaluating past pollution activities at various sites and coordinated with experts and government agencies to properly address contamination issues. She has also drafted and argued motions in a court of law. She is president of a non-profit organization dedicated to preserving and restoring wetlands in the Mississippi River Delta and has had extensive experience in wetland areas.

Javier Del Castillo will be a Geographic Information Systems specialist assisting the agency in data analysis and management, mapping and graphic support. Javier has a Bachelor of Arts degree in Economics from the University of Texas, Austin and studied in the Master of Environmental Planning program at the University of Virginia. Javier has been assisting BCDC staff; first as an intern, helping to develop the agency's GIS database—called the Bay Resource and Analysis Tool—and subsequently as a consultant providing graphic, mapping and planning support, part of which was for the Adapting to Rising Tides Project.

Unless you object, Page and Javier will be joining our team.

We also have two new unpaid interns joining us to work with the enforcement staff.

Stephen Wallace began his three month long internship on July 10th, upon completion of which he will satisfy his final academic requirement and graduate from Humboldt State University with a B.S. in Environmental Management and Protection.

Gregory McAteer will begin his one month internship at the end of this month. He just completed his junior year at the University of Oregon and is working toward a double major in Political Science and Public Policy and Planning Management. In case you were wondering, Gregory is the grandson of Eugene McAteer, the former state senator whose name is on your law, the McAteer-Petris Act.

We are very pleased that both Stephen and Gregory found us and I know you will join me in thanking them at the outset of their service to BCDC this summer.

c. Sea Level Rise Report. You have in your packets a staff synopsis of the recently released National Research Council report assessing future sea level rise along the West Coast. The analysis used a panel of national experts and not only considered estimates of global sea level rise, but also the local sea level rise along different parts of the West Coast from California to Washington, taking into account such things as oceanographic influences and uplift or subsidence of the shoreline. The bottom line is that the range of potential sea level rise listed in the document is largely consistent with the numbers previously recommended by the California Ocean Protection Council and the numbers that staff used some years ago in the Living With a Rising Bay staff report. The report itself is over 200 pages of scientific analysis, but if you would like a copy, please contact the staff.

7. Consideration of Administrative Matters. Acting Executive Director Goldbeck stated that on July 3rd the Commissioners were sent the listing of the administrative matters staff is prepared to act upon. Bob Batha is available to respond to any questions you may have about the matters on the listing.

8. Public Hearing and Possible Vote on Application No.2012.003.00 – City of Redwood City’s Proposed Bike and Pedestrian Path along Smith Slough, San Mateo County. Chair Wasserman announced that Item #8 was a public hearing and possible vote on a permit for a section of the Bay Trail in Redwood City and Bob Batha would make the staff presentation.

Mr. Batha reported the following: This item is the application by the City of Redwood City to place up to 1.7 feet of fill on a subsided levee section to construct a 1,900 foot segment of an eight-foot wide asphalt section of the Bay Trail.

This project would involve the placement of approximately 8,400 square feet of fill for public access.

The staff summary lists a number of issues raised by the project, particularly whether the proposed fill is consistent with the McAteer Petris Act and the Bay Plan, whether the project provides the maximum feasible public access, whether the project would adequately protect the Bay’s natural resources and whether the permanent fill proposed by the project would be adequately mitigated.

Mr. Peter Vorametsanti of Redwood City commented: The project in front of you is a public pedestrian bike access that the city values very much.

The project is not a levee repair because the land the trail would be built on is not a levee, though it does sit at the edge of the water. It functions purely as a bicycle and pedestrian access area. This a missing piece of the Bay Trail that the City has been working on for many years.

Mr. Kevin Fehr of Redwood City presented the following: I am here to present the Bair Island Bay Trail Improvement Project. This is a proposed partial Bay fill in Redwood City on an existing dirt levee that is a PG&E access for their transmission towers.

This trail is identified in our Redwood City Bicycle Plan as needing improvement to a Class I trail which is vehicle access restricted.

During the winter this trail is often very wet.

The project cost is approximately $337,000 and it has received a grant from the Congestion Mitigation and Air Quality Improvement Program, administered by Caltrans.

Kevin briefly described the project alternatives the City explored to the project, referring to a handout showing the various alternatives that had been passed out to the Commission.

Caltrans determined that this project qualified for a categorical exemption under CEQA and NEPA

Because marsh vegetation along the trail will be removed, the City proposed supplemental planting at a section of the US Fish and Wildlife Service’s Inner Bair Island Refuge nearby.

When this project is completed the City hopes to keep this area open in order to provide continual public access.

Commissioner McGrath commented: I wanted to thank the City of Redwood City and Mr. Batha for answering my questions on alternatives that had been investigated by the City. It is very important to note that none of the other alternatives would have the same level of access as this project.

Chair Wasserman asked for any public speakers on this item. Seeing no public speakers the Chair asked for a motion to close the public hearing.

MOTION: Commissioner Wagenknecht moved to close the public hearing, seconded by Commissioner Randolph. A voice vote was taken to approve closing the public hearing. The motion passed with no abstentions or opposition.

Mr. Batha presented the staff recommendation: The staff recommends that the Commission approve BCDC permit 2012.003.00 to the City of Redwood City for upgrading a 1,900 foot long section of an informal dirt path. The project will significantly upgrade this section of trail, eliminating wet and muddy conditions that occur in the rainy season.

The approved section of trail would be barrier free and wider than the existing informal path improving its safety.

As the levee has subsided, marsh vegetation has colonized more and more of the levee. The project would place fill on the levee top and construct an eight-foot wide asphalt trail on the raised surface, which is the minimum width that allows bike traffic travelling in opposite directions to pass each other safely.

The staff recommendation includes a number of conditions requiring that the fill and construction activities be conducted to minimize the loss of and disturbance of marsh and marsh wildlife.

The recommendation also requires that the City mitigate for the unavoidable loss of 8,400 square feet of upper marsh vegetation and habitat by contributing to the restoration of approximately 10,000 square feet of upper marsh transition zone habitat on Inner Bair Island which is part of the U.S. Fish and Wildlife Service South Bay Wildlife Refuge.

As the sole purpose of the project is to improve public access, the project provides the maximum feasible public access consistent with the project.

Finally, with regard to sea level rise, the project will have a maximum 50 year life. By the end of this 50 year period, the path, as shown in the City’s presentation, will likely be increasingly inundated by higher tides.

However, to design the project today to avoid such flooding in the future, a significantly greater amount of fill would have to be placed in the Bay.

As the City of Redwood City will have to address flooding throughout this area, it is quite likely that some other shoreline protection structure will be constructed in this area in the future. And it is likely that such a structure will be a better location for the public access than would be provided by this trail.

The recommendation contains at least two errors that I’d like to correct before letting you at it. One is on page 3, under plan review. Special Condition II-A-2-b includes a reference to an elevated boardwalk that is not part of the project and the reference to elevated boardwalk should be struck.

And on page 4, Special Condition II-B-2-c, I would like to add the possibility of using Bay Trail signs in addition to either public access and directional signs as a way of meeting the sign requirements.

And with that I would be pleased to answer any questions.

Commissioner McGrath commented: I’m a little confused by the language on mitigation. I want to make sure that any mitigation meets the nexus test and that we haven’t created a separate standard for local government than we would for industry or a port or an airport.

The language on page 5, “enhance or restore” does not make it clear whether or not habitat that’s not now wetland is being restored to wetland.

And second, the basis for the cost estimate is not clear. I do think that any cost needs to be representative of the total cost, so capping it rather than having it a percentage of what Fish and Wildlife Services costs is somewhat confusing. And I don’t know how this meets the nexus test. Can you help me out here?

Mr. Batha responded: This was difficult because in consistency determination CN1-07 that the Commission concurred with about five years ago for the restoration of Bair Island, the Commission authorized the habitat restoration of which this mitigation will be a part.

There have been quite a few changes in the restoration program from that which the Commission authorized five years ago. The area that would be enhanced as part of the mitigation is not now tidal, but is being restored to tidal marsh.

Exactly how much of Inner Bair Island is being restored to high marsh/transition zone habitat is still in flux as the Service deals with the fill that they’ve received at the site and as they try to design for accommodating the fill that they have.

So this condition is a little vague because all of Inner Bair Island is going to be restored; part of the restoration will include upper tidal marsh/transitional habitat.

Exactly how much of the restoration will involve this upper tidal marsh habitat is unclear because they received a little more fill than they were anticipating for the restoration and are modifying their restoration plans.

Commissioner McGrath continued: I’m troubled by this recommendation. Mitigation banks have huge benefits. Small projects have immense administrative costs for local governments or developers and minimizing those costs by restoring a more meaningful chunk of habitat has many benefits. I’ve listened to concerns from the Audubon Society that mitigation banks are an invitation to count as mitigation projects that are already underway. And this one seems a little suspiciously close to that.

If there’s a restoration project for the entire area and I can’t see a clear demarcation that says, this 10,000 square feet is being paid for at the cost of the restoring the rest of the area on a per unit basis, then it seems to me we’re kind of backing into a mitigation bank without thinking it through as carefully as we need to.

I’m willing to push back a little on the Audubon Society and say, that mitigation banks make a lot of sense economically and environmentally. But I think they need to be well done. To have the mitigation reflect only the planting cost is not something that I can support.

Commissioner Ziegler queried: This is not a mitigation bank now?

Mr. Batha responded: It is not.

Commissioner Ziegler added: And Jim, what you’re suggesting is that the way it is set up it can appear like it’s operating as if it is a mitigation bank, right?

Commissioner McGrath answered: It’s a project that was approved for restoration and all of a sudden it’s becoming a mitigation bank for this one project.

Commissioner Ziegler continued: Part of the issue is that there is a lot land like this that’s now in public ownership and slated to be restored and the funds are not available. We need funds to do restoration so there’s a lot of potential for this type of situation.

Commissioner McGrath added: And in many cases the restoration costs are well over $2 a square foot. The recommendation is for an approval without findings on how we got to $2 a square foot. That makes me very uncomfortable. There are two threshold questions.

Would this restoration have happened in any event with or without this project? And it appears that it may. But is this truly restoration of new habitat or is it enhancement of existing habitat? And this is a precedent that bothers me.

Should the money be equivalent to the costs per square foot that U.S. Fish and Wildlife Service has expended to restore this area.

But simply allowing a permittee to enhance, not, restore wetlands, is not something I can support.

Mr. Batha responded: The reason staff came to be comfortable with the proposal has to do with other projects in the south Bay where, as mentioned by Commissioner Ziegler, one party was allowed to mitigate by contributing to the restoration of an area already slated for restoration.

Acting Executive Director Goldbeck commented: Another benefit here is that the mitigation area is close to the site where the fill is being placed. The required mitigation funds will go to create the same high marsh habitat that is being filled. Mr. Goldbeck stated that we should focus more on the outcomes of the kind of habitat that we’re trying to create than the cost.

Chair Wasserman stated: I don’t view this as a mitigation bank issue. It does seem to me much along the lines that Steve just said and Bob has talked about.

Given the immediate proximity of the mitigation site to the impacted area, given that it the habitat to be enhanced is the same type of habitat that is being taken away and when we’re talking about costs in the area of $20,000, this seems to me sensible.

I certainly think it makes sense and I support the staff recommendation. Any other questions? (No response.)

Chair Wasserman asked for a motion on the staff recommendation noting that the motion included the corrections to the report.

MOTION: Commissioner Wagenknecht moved this item, seconded by Commissioner Randolph. The motion passed by a show of hands (16-1-0).

9. Closed Session to Discuss the Appointment of an Executive Director. Chair Wasserman announced that the Commission would adjourn into executive session to discuss personnel matters, specifically the selection process of a new Executive Director and the potential appointment of a new Executive Director. The Chair asked the public and staff to leave the room.

(The Commissioners convened to closed session.)

Chair Wasserman reconvened the meeting and announced: As noted, we considered and discussed the appointment of the new Executive Director for BCDC.

I am pleased to report to you that there was a unanimous vote to appoint Larry Goldzband as the new Executive Director for BCDC.

Larry will talk with staff on Monday and we expect him to start in two weeks. I want to thank the members of the selection committee for their very hard work.

Acting Executive Director Goldbeck commented: I would like to congratulate Larry Goldzband on his appointment and I would like to thank the Commission for the honor of having served you as your Acting Executive Director. So, thank you.

Chair Wasserman in turn thanked Acting Executive Director Goldbeck for all his hard work.

10. New Business. No new business was discussed.

11. Old Business. No old business was discussed.

12. Adjournment. Upon motion by Commissioner Gilmore seconded by Commissioner Vierra the meeting adjourned at 2:29 p.m.

Respectfully submitted,

STEVE GOLDBECK Chief Deputy Director

Approved, with no corrections, at the San Francisco Bay Conservation and Development Commission Meeting of October 4, 2012

R. ZACHARY WASSERMAN, Chair