Minutes of January 15, 2015 Commission Meeting
1. Call to Order. The meeting was called to order by Chair Wasserman at the Ferry Building, Port of San Francisco Board Room, Second Floor, San Francisco, California at 1:08 p.m.2. Roll Call. Present were: Chair Wasserman, Vice Chair Halsted, Commissioners Addiego, Bates, Gorin, Chan (represented by Gilmore), Cortese (represented by Scharff), Gibbs (represented by Arce), Gorin, Lucchesi (represented by Alternate Pemberton), McGrath, Nelson, Pine, Randolph, Sears, Spering (represented by Alternate Vasquez), Techel, Wagenknecht, Zwissler and Hicks. Not present were: Department of Finance (Finn), Contra Costa County (Gioia), Business, Transportation and Housing Agency (Sartipi), Secretary for Resources (Vierra), Governor’s Appointee (Vacant), City and County of San Francisco (Vacant) and Association of Bay Area Governments (Vacant). 3. Public Comment Period. Chair Wasserman changed the order for public comment on subjects that were not on the agenda because there were people on their way to the meeting that might like to provide comment on a pending permit matter. This Agenda Item was addressed just before Item 7 but there was no public comment. Chair Wasserman moved to Approval of the Minutes. 4. Approval of Minutes of the December 4, 2014 Meeting. Chair Wasserman asked for a motion and a second to adopt the minutes of December 4, 2014. MOTION: Commissioner Vasquez moved, seconded by Commissioner McGrath, to approve the December 4, 2014 Minutes. The motion carried by a voice vote with no objections and Commissioners Gilmore and Techel abstaining. Chair Wasserman asked for any corrections or comments from Commissioners and received none. 5. Report of the Chair. Chair Wasserman reported on the following: a. New Business. The Chair changed the order of this item for similar reasons that he postponed public comment. The Commissioner working group on the Commission’s Bay Fill policies met last Thursday, I would like to have Commissioner Nelson who is chairing the group to briefly discuss the meeting. b. Next BCDC Meeting. Our next meeting will be held February 5th, here at the Ferry Building. At that meeting we expect to take up the following matters: (1)A public hearing and possible vote on a request for consistency concurrence by the U.S. Army for reconstructing a pier at the Military Ocean Terminal Concord, in Contra Costa County. We will hear a little bit about this in our Executive Director’s Report. (2)We expect to hold a public hearing and possible vote on a proposal regarding parking on Piers 27 and 29 along the San Francisco Waterfront. (3)We will have another briefing on the history of BCDC and the Bay, this time by Clem Shute. c. Next Working Group Meetings. The Working Group on Rising Sea Level will meet at 11:00 A.M on February 5th prior to the Commission meeting and we expect to discuss two issues. One is, the requirements of our current BCDC permit application in the context of Total Water Level because some of us are starting to talk about an expected rise of at least three feet by between 2050 and 2100. The actual rise at that point will be significantly higher taking into account high tide, king tides and storm surge. Second, we expect to address the challenge of providing public access within BCDC’s jurisdiction when property outside of our jurisdiction is not resilient in the face of rising sea level. And we’ll probably talk about how that gets addressed in the permit process and particularly in terms of rising sea level affecting public access. That working committee is a noticed meeting and will be open to the public. The Working Group on Bay Fill Policies will meet at 11:00 A.M. prior to the February 19th meeting and may discuss issues that include: settling on a group of external advisors and discussing a list of issues on which the Working Group will ask the advisory group to take up the evolving nature of Bay fill proposals as the basic context for work of that group. We will also have an update on the NOAA funded project. The Working Group on Bay Fill did meet last Thursday and I would like to have Commissioner Nelson who is chairing that group give us a brief report on that meeting. Commissioner Nelson reported the following: We met at the Commission offices last week. We covered three areas. The first area was an excellent introduction by staff to the Commission’s existing law and policies, so we could start getting a sense of the places in Commission law and policies and in the Bay Plan that we want to make sure we’re paying attention to as we think about the implications of sea level rise, and whether the Commission needs to revise any of its existing law, policies or plans regarding sea level rise and how we handle that. We did discuss the potential of creating an advisory group. We haven’t made any formal decisions about that yet. There is already a commitment in a NOAA grant to BCDC to create an advisory group to give them advice on the project they’re doing for NOAA. That advisory group is
likely to be more technically focused. We’re talking about the possibility of creating an advisory group for our working group that would be more focused on stakeholders and policy rather than being so technical in focus. We are still having important conversations about the roles of those two working groups.Finally, you’ll note that we’re not presenting to you a work plan for this group yet. This is in order to allow us to have time to get input from an advisory group so that we can take advantage of the wisdom of a broad range of stakeholders as well as some technical expertise to design that work plan. We will come back to you. It’s a little bit messy to not have a work plan to hand to an advisory group when they begin. We felt that this kind of messiness was preferable to handing a work plan that we drafted without their input and then seeing the reactions to that. In order to make sure that we are designing a process that is as inclusive as possible, you will see a work plan from us but it will probably be after we’ve had a chance to talk with an advisory group. At our next meeting in February we will take the next step in terms of nailing down the details of that advisory group and its possible members; we will be working closely with the Chair and we will report back at our next meeting. Chair Wasserman continued the meeting: Thank you very much Barry. I think we would all agree that Bay fill is inherently messy and your effort to be inclusionary is an important part of dealing with the mess. d. Joint Policy Committee Appointment. We have five members on the Joint Policy Committee which is the state agency that is charged with attempting to coordinate policies amongst four regional agencies, our agency, MTC, ABAG and the Air Quality District for the Bay Area. Commissioner Kate Sears who has been doing a very good job on that committee has requested that she be relieved of her duties to an increasing workload in her own county. Commissioner Dave Pine had previously expressed interest in serving on that body should a vacancy occur. I am happy to make an appointment of Dave Pine to replace Kate Sears on that committee. We are meeting tomorrow. On our agenda tomorrow is a summation of some organizational work to help give a little bit more definition to the efforts of the JPC. I believe this will result in an increased and better-focused effort on climate change regarding both mitigation and adaptation issues throughout the region. (Commissioner Pine arrived at the meeting) Welcome Dave. You have just been appointed to the JPC unless you choose to decline. I’m sure many of you have been watching the (Yosemite, Wall of Early Morning Light) Climbers on television. It’s those kinds of activities which restore faith and belief in the ability of humans to stretch themselves and accomplish absolutely amazing tasks and recreate a sense of belief and a sense of wonder. I raise it because one of our most important tasks, which is helping this region adapt to rising sea level, is in many ways as difficult as that climb. We don’t have ropes to catch us falling. We are going to continue to struggle with this, particularly with the educational aspect of it, because rising sea level is still not very high up in the minds of the broader public or even, in some instances, the minds of elected officials and planning officials.
One of the things that we expect to report to you in the next meeting or two is much more specific plans for our fiftieth anniversary, which occurs in September of this year. Part of our history presentations are linked to that. We are working on some plans that we think can help utilize the fiftieth anniversary to expand our educational effort and bring more attention to the issue.e. Ex-Parte Communications. This is a reminder that if you have received ex-parte communications you need to register those in writing. These are ex-parte communications about adjudicative matters, administrative or hearings before us, you need to do it in writing. You may also put it on the record here but that is not a full satisfaction of the law’s requirement. (The Chair received no comment) Chair Wasserman moved on to the Executive Director’s Report. 6. Report of the Executive Director. Executive Director Goldzband reported: Happy New Year! I hope that you, your family and your friends had a joyous and healthy rest and celebration. Somebody much smarter than I noticed many years ago that many times our resolutions for the New Year simply result in new ways to fall into old habits. However, we’re starting the New Year off right at BCDC – no old habits here. Thanks to the Brown Administration – and its Department of Finance – BCDC has received in the Governor’s budget a $1 million general fund augmentation. Assuming that the Legislature concurs with this increase, and we expect that it will, BCDC’s structural deficit will be cured. We won’t have to go through a reduction in force and we shall be able to start the next fiscal year on a solid footing. In addition, we shall be able to prepare for this change in a measured, thoughtful and effective way and we already are starting down that road. Action planning based on the Strategic Plan will start soon, for example, and this increase in funding should allow staff to target five percent or so of their time on these issues. In addition, we are cautiously optimistic that we shall be able to reserve that portion of the Climate Resilience Funds that we received for this fiscal year that we shall not be able to expend wisely in the next six months in a way that will allow us to expend them during the next fiscal year. Because we have started a new year, we have three new staffers to introduce. The first is Heather Perry, our newest NOAA Sea Grant Fellow at BCDC who will be with us for one year. (Ms. Perry stood and was recognized) Heather recently earned her master's degree from the Bren School of Environmental Science at UC Santa Barbara and also earned her undergraduate degree at UCSB. Heather will assist the Sediment Management Team with the development and implementation of the Regional Sediment Management strategy for the Bay. We also have two new legal interns. Chelsea Scharf (Ms. Scharf stood and was recognized) is a second-year law student at Hastings where she is a staff editor for the Hastings Constitutional Law Quarterly. She received her undergraduate degree in Global and International Studies from UC Santa Barbara and has worked for the ACLU of San Diego and for the General Assistance Advocacy Project here in San Francisco. Vanessa Brown (Ms. Brown stood and was recognized) is a second-year law student at the University of San Francisco School of Law. She received her undergraduate degree in General Business from the University of Denver and has worked as a Small Claims Court mediator for the San Francisco County Superior Court, and, most recently, for the U.S. Dept. of Housing and Urban Development here in San Francisco. We also are welcoming Emmy Tsang, (Ms. Tsang stood and was recognized) our second permit compliance intern, starting today. She graduated from Northeastern University with a BS in Environmental Science and is a candidate for an MS in Environmental Management from the University of San Francisco. A few things to note as we start 2015: Thanks in great part to Commissioner Dan McElhinney of Caltrans, BCDC and that agency have agreed on a new kind of contract that will allow us to work with Caltrans on both compliance issues and as consultants on the issue of rising sea level and other challenges. For those of you who are familiar with how government funding works – and that’s most of you, Caltrans was able to create a new billing code under which BCDC can charge no matter what the project – current, future, or past so long as the work fits under the contract’s description. We need to thank Caltrans for that magic. There are two projects on which I need to give you a heads up. The first is the Brooklyn Basin project – formerly known as Oak to Ninth in Oakland. You may remember that BCDC approved the project in 2011 prior to the Water Board approving its certification, based on assurances from Water Board staff that there were no significant issues. Unfortunately, issues significant to the Water Board and the US Army Corps of Engineers arose. The permits issued by those bodies likely will not conform with BCDC’s requirements, including the fact that a large portion of the mitigation for the project as BCDC saw it will occur offsite and far away. BCDC has expressed its concerns publicly about the process and we are hoping that the two agencies will take those concerns into consideration as they review their requirements. If they do not, then the Commission will be faced with the difficult task of publicly reviewing its permit and deciding whether and how to amend it. Second, and just as challenging, are two projects being planned by the U.S. Army at the Military Ocean Terminal in Concord (at the former Concord Naval Weapons Station). You will note that the Administrative Listing before you today includes the first – a relatively benign “pier wrapping” project at MOTCO (as it is now known). This first of the two projects is missing information. However, the project is relatively small and will have smaller impacts than the larger project that I’ll discuss in a minute. Staff’s conversations with the Water Board and US Fish and Wildlife staff indicate that we can move ahead with an administrative listing now and continue to work with the Army to resolve any outstanding issues. However, the Army needs to rebuild another pier at MOTCO as well, which is where the rub occurs. Army staff and BCDC staff worked together constructively and cordially during the earlier planning phase and now after a hiatus the Army has come back to us only very recently. Unfortunately, the Army has submitted a Consistency Determination that lacks basic information that the Commission typically relies upon, including plans beyond a conceptual level, a geotechnical report that analyzes the safety of the proposed fill and a sea level rise risk assessment. The Army told BCDC staff that it plans to prepare the documents but does not believe their submittal is required for Commission concurrence. Missing as well at this time are the Regional Water Board’s water quality certification, biological opinions, a possible DMMO review and a final Environmental Impact Statement et cetera. We do hope that the new efforts to communicate will resolve the issue. However, and this is why we need to make sure that you recognize the challenge, this project currently is scheduled to come before the Commission for a public hearing and vote at the next Commission meeting, February 5th, because of the time constraints of the federal Coastal Zone Management Act. That time period can be extended at the request of the applicant. Your staff will continue to try to obtain the missing information and work with the Army to figure out a way to recommend that the Commission concur with a consistency determination. That being said, as staff we are unsure how we can proceed in that fashion without more information from the Army. I was prepared to contact the brigadier general in command of the Pacific Division of the Army Corps of Engineers prior to the re-opening of the lines of communication. My purpose in telling you this is that I will do my best with our staff to avoid coming to you with a recommendation to object to the Army’s consistency determination based upon a lack of information. We hope to be able to continue working with the Army very quickly or at least get an extension so we can provide you with as much information as possible. Two final things, in your packet is a series of photos in case you had forgotten that it rained last month. These photos were taken by professional photographers and BCDC professional photographers. We should note that the big storm that hit was not that big and hit a week before king tide. If it had been seven days later you would have seen even more flooding. Finally, you all know that suggested very strongly by Chair Wasserman, BCDC is taking its show on the road. Next month, Supervisors Spering and Vasquez will convene a workshop of Solano County planning staff, planning staff from cities in Solano County and BCDC planning and regulatory staff entitled: “Planning for Storms, Tides, and Rising Sea Level in Solano County and its Cities.” In front of you is the flyer that has been distributed. I shall call each of the county supervisors who sit on BCDC to discuss a BCDC visit to your county to provide such information to your planning staff. That completes my report, Chair Wasserman, and I am happy to answer any questions. Commissioner Zwissler was perplexed: On the Army project out in Concord, I was kind of confused that we can get to this point if a month away we are having to rule on this and yet, we’re not able to get the information we need. I certainly hope the Army is forthcoming in providing that. What are our options? This is a confusing situation. Executive Director Goldzband responded: There are two things to recognize. The first is that we still have a little bit of time. Bob and Jamie spoke with representative of the Army today and I think they fully understand the time-table that we are under. They have the option to ask for an extension of that time period. The real rub is that for you all to get the information you need, Bob and his staff have to prepare a staff summary, which will come out next Friday. There is not a lot of time. In addition, it is yet to be seen whether the information that we get is sufficient and/or needs to go the the ECRB, the Engineering Criteria Review Board, to begin with. We are in a bit of a quandary and we are hoping that continued discussions today and tomorrow with the Army will put us on the right path. Chief of Permits Bob Batha continued: There is a real problem in terms of the fact that a lot of the things that our Engineering Criteria Review Board take a look at are beyond the scope of any of our staff to be able to evaluate, such as the seismic stability of the structure. We normally take projects to the ECRB before they come here and we will not have the ability to do that for this project. We only have 60 days to act on a consistency determination. When they submitted it 60 days ago we informed them that there were these things missing. The Army has told us that this is a very time-sensitive project. They want to go forward and they are hoping that we will condition their consistency determination to assure that all of the typical requirements of the Commission are met. We think some fundamental things like the seismic and the sea level rise information are fundamental to whether or not we could even approve the project. We are not sure on how we could condition it to make it consistent. That is the rub that we have. Chair Wasserman commented: This conceptual issue has arisen before and there is sometimes a tendency by government applicants or non-profit applicants doing good works who require our approval on permits to think that because they are government or non-profit entities that they should be cut some slack. As a conceptual rule we need to be very careful that we don’t cut slack for one of those applicants in circumstances where we would not be inclined to do so for a private applicant. Parity and fairness becomes very important here. It is sometimes difficult because typically we are the last or the next-to-the-last approving body. It gets to us much closer to time deadlines. That doesn’t mean they don’t need to comply with the law and both practical and reasonable permit procedures. I would hope that in your dialogue with them that this point is made as well as being very specific and clear about the time constraints and if we were to entertain an approval with less than full information conditioned on receiving it, how that would actually apply given the time frames of their project. We certainly look at each project on its own merits. We have to pay some attention to consistency. Any further questions on the Executive Director’s Report? Seeing none, we will return now to accepting Public Comment. Item 8 has been postponed because they are not ready to come before us. I currently have no public speakers. 7. Consideration of Administrative Matters. Chair Wasserman announced: The list of administrative decisions was distributed to us. Bob Batha is here to answer any questions. (Chair Wasserman received no comment) 8. Public Hearing on an Application by Golden Gate Bridge, Highway and Transportation District, for the Sausalito Ferry Terminal Vessel Boarding Rehabilitation Project in the City of Sausalito, Marin County, BCDC Permit Application No. 2014.001.00. Chair Wasserman reminded everyone that Item 8, which was a vote on the Golden Gate Highway and Transportation District proposal to renovate a ferry terminal in Sausalito, had been postponed to a later meeting, so he proceeded to item 9. 9. Commission Consideration of a Contract with the Aquatic Science Center for Technical Services. Chair Wasserman announced: Item 9 is consideration of a contract with the Aquatic Sciences Center for technical services, particularly concerning our fill policies in light of a rising Bay. Sarah Richmond will provide the staff recommendation. Planner Sarah Richmond presented the following: We will be presenting staff’s recommendation to authorize the Executive Director to enter into contract with the Aquatic Science Center, perhaps better known as the San Francisco Estuary Institute, for up to $20,000.00 to provide technical services for the NOAA-funded project we’re calling, “Policies for a Rising Bay.” Sea level rise adaptation projects will involve different green, gray or some combination of green and gray infrastructure along the shoreline. Many of these strategies may involve Bay fill. BCDC initiated the Policies for the Rising Bay Project in the fall of last year. Over the next 18 months we will examine how the Commission’s Bay fill laws and policies can be applied to projects that improve shoreline resilience. Technical services provided by the Aquatic Science Center will assist BCDC in two ways. First, the Aquatic Science Center will assist project staff to conduct an in-depth analysis of shoreline geomorphology and land use to develop shoreline typologies. Second, BCDC and the Aquatic Science Center will organize a technical workshop to review the shoreline typologies and assess what types of adaptation strategies may be most suitable and effective for identified shoreline types. The outcome of this workshop will be a high-level matrix of the applicability of various shoreline adaptation strategies around the Bay. A similar matrix was recently developed by the New York City Planning Department following Hurricane Sandy and the tool has been used to inform city planning decisions as well as support regional resilience efforts. This shoreline analysis is a key component of the Policies for a Rising Bay Project because it lays the groundwork for selecting adaptation strategies to further evaluate as case studies beginning this summer. Technical members of the Policies for a Rising Bay Project Steering Committee in addition to other topical experts will participate in the workshop. Staff will share workshop outcomes with both the Commission’s new Working Group on Bay Fill and with the entire Commission. Accordingly, staff recommends that the Commission authorize the Executive Director to contract with the Aquatic Science Center for up to $20,000.00 to provide technical services in support of the Policies for a Rising Bay Project. I am here to take any questions. Chair Wasserman asked: Are there any questions of Sarah? Commissioner Nelson addressed the scope of the recommendation: The staff recommendation talks about this project identifying, “suitable adaptation strategies.” Could you help a little bit by explaining the criteria for identifying those strategies? Are those technically suitable? Are they economically suitable? Are they reviewing Commission law and policy? What criteria are they using to identify those strategies? Ms. Richmond answered: It will be from a technical standpoint. We will be looking at criteria such as wave climate, shoreline slope, proximity to creek mouths, and adjacent development and will be evaluating the feasibility and sustainability of various strategies given these geographic characteristics. The criteria will not be economic per se. The goal of the workshop is really trying to facilitate a discussion between scientists and the engineers so that there is a technical basis from which to build stakeholder participation. Chair Wasserman continued: Any other questions? (The Chair received no replies) MOTION: Commissioner Nelson moved approval of the staff recommendation, seconded by Commissioner Zwissler. The motion passed by a voice vote with no abstentions or opposition. Chair Wasserman announced: For the next item I am going to ask Jim Chappell to take over Chair. I will come back. (Chair Wasserman exited the room) 10. Public Hearing and Vote on BCDC Permit Application No. 2014.005 of the East Bay Regional Park District (EBRPD) to construct Phase I of the “Albany Beach Public Access and Habitat Restoration Project,” along the Albany “Neck” in the Cities of Albany and Berkeley, Alameda County. Acting Vice Chair Chappell announced: Item 10 is a Public Hearing and a Possible Vote on the East Bay Regional Park District’s Phase 1 Albany Beach Public Access and Habitat Restoration Project. Michelle Burt Levenson will introduce the project. Permit Analyst Levenson: The next item on the agenda is an application by the East Bay Regional Park District to construct Phase I of the “Albany Beach Public Access and Habitat Restoration Project” in the city of Albany, Alameda County. The project would involve the removal of an un-engineered shoreline revetment and the placement of an engineered shoreline protection system at a former landfill site. The new revetment would cover less of the Bay than the existing revetment; a net reduction of 2,442 square feet of fill in the Bay. A series of Bay habitat features are also proposed including bird roosting islands, an oyster reef, tide pools, a rock crescent and a pebble beach. The habitat features would result in the placement of 13,700 square feet of rock and oyster shell in the Bay. The total amount of net fill placed with the project would be 11,258 square feet. Public access proposed with the project includes reconstructing an existing 2,490-foot-long spur of the San Francisco Bay Trail and providing an adjacent native plant landscaped area. In addition, a 44-foot-long trail extension is proposed that would lead from the reconstructed spur trail to Albany Beach. The staff identified five issues associated with the proposed project including: whether the fill proposed is consistent with the McAteer-Petris Act and the San Francisco Bay Plan; whether the proposed shoreline protection system is consistent with the Commissions laws and policies on shoreline protection; whether the public access is the maximum feasible consistent with the project; whether the project is consistent with the Commission’s policies on natural resources; and whether the project is consistent with the Commission’s policies on water quality. Here to provide you with a presentation and more information about the project is Chris Barton with the East Bay Regional Park District. Mr. Barton presented the following: I have been the project manager on the Albany Beach Restoration and Public Access Project since 2009. We’d like to thank staff for working very hard to get us to the Commission. Just to orient folks who are not familiar with the area, the project is located in the city of Albany at the Albany Waterfront within McLaughlin Eastshore State Park. Some background about the Park District and Eastshore State Park. The East Bay Regional Park District has been managing the park under an operating agreement with the State of California, specifically State Parks, for the past 17 years. A lot of this land in Eastshore Park is prior landfill material. We started in Berkeley with the Berkeley Meadow and did some restoration there. The reason why I am giving the backstory is; why is it taking so long for us to get to Albany because it is an eroding landfill? So we did start in Berkeley and we took care of the Berkeley Meadow where we essentially placed fill out there on the uplands to create coastal prairie and seasonal wetlands. That was a successful project. As we move forward looking at the Eastshore State Park policies, it says to place the highest priority on projects that we are developing where we have erosion of landfill going into the Bay. When we acquired this property back in 1998 it was an on-going problem. The Eastshore State Park General Plan was adopted in 2001. Around that the time the Cosco Busan oil spill happened so we were able to get some funding for that area and also in partnership with the Coastal Conservancy to get some planning money for Albany. We were able to move forward with this project so we are very happy to be here. So the project that we looked at, we started with a feasibility study back in 2009, and it looked at implementing the Eastshore State Park General Plan policies. It looked at a much larger area, so there’s three phases. The project before the Commission today is the “Neck” portion of the project. But just so that the Commission understands that there is a larger project here, it’s a phased project. We did conduct a feasibility study that looked at all of the improvements that were identified by the General Plan and how we can move forward with those. That started in 2009 and we had numerous public workshops. An EIR was certified for this project. The beach area improvements include adding more sand to the beach. From the coastal engineering reports it was recommended that we would have to add sand for this beach to stay in place given sea level rise projections. And then also additional parking is included with the beach portion of the project, a restroom, a kayak launch and a picnic area and also interpretive exhibits. Phase III would close a large gap in the Bay Trail between the terminus of Buchanan Street in Albany all the way down to Gilman Street. So the EIR and the feasibility study also covered that. Moving on to the proposed project before you today. When we looked at the project design one of the major constraints that we had was that this is a landfill. So one of the main objectives was not to dig into the landfill; but we also wanted to be able to minimize the amount of Bay fill and actually as a goal to have a net reduction in Bay fill. We also wanted to move forward with the subtidal habitat goals report recommendations and specifically those recommendations to provide rocky intertidal habitat components built into this project. So that was quite a balancing act for us, not being able to dig into the landfill and to have no net fill. So we were successful in designing a revetment and not having any net fill from the revetment but we do have some Bay fill for these habitat improvements. And what is really driving this project, the top goal is to stop the trash that is coming out of the landfill currently that is going into the Bay. So we would like to be able to get to that and we would also like to have the subtidal habitat components. It is a bit experimental at a larger scale but I am confident in the design that we have come up with. We have Coast & Harbor Engineering that handled the actual hard engineering that is involved for these structures that will be put in place. We have Questa Engineering that has taken care of the public access and really brought all of our sub-consultants together and also Keith Merkel who looked at the biological resources and the kinds of enhancements that we could have in the harder rocky intertidal areas that we are creating and then also to enhance the revetment area and to protect the eelgrass that we have offshore. So with that I would like to turn it over to Jeff Peters, he is with Questa Engineering, our project manager on the consultant side, to go over some of the details of the project. Thank you. Mr. Peters addressed the Commission: As Michelle mentioned, we are reconstructing about 72,000-plus square feet of an eroding, concrete rubble revetment. We are reengineering it. Another part of the project is reconstruction of the Bay Trail. We are raising an existing trail out to the Albany Bulb. We are raising it, on average, one to two feet and we are paving it. It is not currently ADA-compliant; we are making it ADA-compliant. We are paving it with a semi-permeable natural paving material. And finally as both Chris and Michelle mentioned, the project involves installation of subtidal habitat, including a pebble beach, some bird roosting islands, an area to enhance for oysters and some other features. This is a look at the existing shoreline. You can see it is eroding at that spot and it is really an un-engineered rubble revetment. It is not safe, it is not stable. If it continues to erode the Trail will be lost and trash and other unknown debris will fall into the Bay waters. This is an artist’s conception of what the project might look like, at least at higher tide. It is not entirely accurate, it was done a bit early, but it is very close to what we envision as the project goal. This is another look at the existing concrete rubble revetment that will be excavated out and replaced with armor stone rock. As Chris mentioned, the coastal engineering work was done by Coast & Harbor Engineering here in San Francisco. They are very experienced in this sort of thing. As Michelle mentioned, authorization of this project requires you to make a determination for consistency with your policies and regulations for fill, shoreline protection, maximum feasible public access, natural resources and water quality. I will just very briefly go into those. The fill has to provide a public benefit. We think it is. It is going to protect the landfill and it is going to maintain public access. The fill, previous determinations and authorizations by this Commission have determined that shoreline protection is a water-oriented use, which is another consistency determination. And the appearance. This will, as you can see, will be a substantial upgrade in the appearance of the shoreline and the Trail. There is no other upland alternative to this. By definition, habitat enhancement features and shoreline protection are built on the edge of the Bay. And finally, we need to minimize harmful effects with both the construction and the project and that has been carefully thought through. We do have permits from all of the other regulatory agencies, the Regional Board, the Corps of Engineers and a compliance letter from the National Marine Fishery Service. Shoreline protection. As I mentioned, Coast & Harbor Engineering looked carefully at this, considered a number of things including sea level rise and various infrequent severe storms and storm surge and wave run-up on the revetment and determining how to construct the revetment and the area above it to make it resilient and protective of the Trail and protective of the landfill. We are very confident in the design. Maximum feasible public access. What we are doing here is we are not really increasing public access; we are upgrading public access by raising the Bay Trail and making it ADA and an all-weather semi-permeable surface. Natural resources. Again, the habitat enhancement features, the subtidal features are a major benefit of the project in terms of natural resources. And finally, water quality protection. As I said, we have a 401 Water Quality Certification from the Regional Board with quite a few conditions that we are going to be meeting including protecting existing eelgrass beds with setbacks and surveys and use of a turbidity curtain and a debris boom. The project will benefit water quality in addition over the long term by preventing landfill materials from entering the Bay. I’d be happy to answer questions. Acting Vice Chair Chappell asked: Are there any questions from the public? I’d like to open the public hearing. Commissioner Arce commented: I wanted to point out that as an environmentalist I have been tracking this project for a long time and it is great that it is here. I just wanted to confirm, it is right at the border of Albany and Berkeley and serves both communities. Just one real quick question because I know what is great with it. A lot of the environmentalists have been working on this issue, especially in Alameda County. There are a lot of people that also would say this is great for the environment and when we look at public benefit they would also say it is good for the community because it also creates jobs, jobs that we can then move up and down the shoreline. I am just wondering if there is any type of local habitat restoration, jobs-type of program connected to this that we could also call a public benefit of the project. Mr. Barton replied: At this point we don’t have any. The East Bay Regional Park District does have a volunteer program for community involvement. This is a regional park so it serves all of the East Bay so there is that regional aspect. This isn’t specifically answering your question about for this project but in general we do have community outreach. Specifically in this area we have the Albany dog owner groups, they do a lot of beach cleanup. But as far as specific work for the community, we don’t have that incorporated. This is going to go to construction and our main goal is to fix the shoreline. As we move forward with the restoration in the future phases specifically for the beach there could be opportunities to get volunteers in there. Commissioner Arce continued comment: Volunteering is cool but also you want good-paying jobs out of this. A $2.5 million project means you can get maybe 10 to 12 job years out of it to do the work. Mr. Barton agreed: Yes, definitely. I think looking at overall community benefit and money going into the community, with all three of these phases it is about $12 million. And if you look at all of the consultants that have worked on this, Questa Engineering is from Richmond, they have been working on this for many years. Before that we had LSA also from Richmond, all local consulting firms. And then also for labor, this will go out to competitive bid and will be subject to a labor compliance program when we go into construction. Commissioner Arce added: One idea and then I will say thank you and say it is great after this question, which is: I know that there is now talk about habitat restoration as a potential kind of career opportunity, so you can start now and do the whole breadth of projects. You’ve got jobless communities right there, as Mayor Bates can attest to, in Albany. Policymakers, you do have jobless communities. And if this is a prevailing wage job, which it probably is, then you can utilize the movement to call these careers in habitat restoration. You have got to do it at the front end though; you would have to do it now. It is kind of secondary to the way we look at this project from BCDC in a permitting perspective. But for me, jobs, good-paying jobs, apprenticeship, local hiring, sustainable wages and benefits is part of what we do. It is a public benefit, it sustains. Because if you can’t stay in the Bay, if you can’t live here, you can’t enjoy the Bay and that’s what we want. So just to throw that out there; it could be a really good opportunity.
Commissioner Bates weighed in: I am very pleased to see you moving forward with this project. I just had a couple of questions. Correct me if I am wrong but the Regional Park owns the Neck, right? You own that parcel; is that correct?Mr. Barton answered: That is correct. The East Bay Regional Park only owns the north and south shoreline portions. There is a Buchanan Street extension which still belongs to the City of Albany along with the Bulb owned by the City of Albany. Commissioner Bates inquired about the Bulb: Can you tell us what the plans are for the Bulb? Obviously there was a problem there with homeless people living there. Albany has taken steps to remove most or all of them I gather. I heard that was a condition precedent for you guys to consider actually receiving the property. Mr. Barton replied: The Albany Bulb is actually a completely separate project. It is the City of Albany’s property and the City of Albany also manages that area. I do have some background, though. I can tell you that the population of encampments, the folks living out there, the City has implemented a program to move them out of the Bulb. Commissioner Bates observed: They did a great job; they moved them right into Berkeley. Mr. Barton continued: The City did recently receive some Coastal Conservancy funding to look at an implementation plan to transition the “Bulb” into park use. Commissioner Bates addressed the underlying issue: I guess that’s the issue. The issue is, obviously the whole area has been slow to develop, right. But my concern is that at some point I would love to see the Regional Park actually take and have authority to operate and actually be deeded the property of the Bulb so that you can actually restore it, because Albany doesn’t have the resources and never will, I don’t think. So my question really is, right now, are there any steps in process for the transfer of that property to the East Bay Regional Parks? Mr. Barton replied: At this point I can tell you that I am not managing that project. But I can tell you that our general manager is working with the city manager from Albany and their counsel and they are trying to come up with some kind of an agreement that will identify the steps that need to be taken and what role, if any, the Park District would take in that transition. Commissioner Bates added: Okay, thank you, I appreciate the indulgence of taking it on a different tract but it is really important for a lot of us. I have been working on this project since 19 hundred and 71 (laughter by audience), the Year of our Lord, and I see former Assemblywoman Nancy Skinner is here, who is also on the Park District who has been working on it for a number of years. So we would like to see this come into the park and we would like to see it taken over by the Regional Parks. Commissioner Scharff commented: It seems like a great project. But there is no new public access, right; it is just upgrading the Trail?
Mr. Barton responded: There are two aspects to the public access. One is we would be keeping the existing Bay Trail spur from eroding into the Bay, so we will keep that and we will also be enhancing that trail. And we will also make the trail that leads from this spur down to the beach, ADA-accessible.Commissioner Scharff asked staff a question: So I really had a question for staff. Was there additional public access that could have been done? Since our charter is the maximum public access feasible, I was curious what other things could have been done but aren’t being done for public access? Ms. Levenson answered: I think, based on the project purpose and goals, which is to contain the landfill debris, and the fact that the public access, (the spur), is an old road that led to the landfill operations out on the Bulb; that reconstructing the Trail and making it ADA accessible and level, resurfacing it and adding the landscaped 30-foot wide swath adjacent to the Trail plus a 44-foot long ADA accessible Trail extension to the beach, the staff believed that that was maximum feasible, given the nature of the project. Executive Director Goldzband commented on the inter-connectivity of project aspects: I am going to supplement that. The nexus between the location of the project and the type of the project and the way the staff looks at feasible I think needs to be always considered. So as you take a look at this, and I don’t want to go too deeply in there, you have got a limited space and you have got tremendous improvement. So is more, feasible? It is up to the Commission to determine, what is the maximum feasible. Staff always wants to get the most it can get in terms of feasibility so it starts by taking a look at the project itself to determine what and where. Does that help? Commissioner Scharff replied: It does help. What is a little confusing is, it is impossible as a Commissioner to know what else could be done. And that may not be feasible because it may be too expensive, we may make the decision that this is a great project. And I love the project and I am not suggesting anything. And it may be financially infeasible to do more on that. But I don’t know what we are not doing because staff may have made the determination or you may have had these discussions that it is financially infeasible to do X and therefore we are not bringing it up to the Commission. But that was really my question, what are we not doing that gives us the information as a Commission to then make that decision, as opposed to really being a staff-driven determination that it is not feasible to do anything more. Commissioner McGrath’s commentary called upon his advocacy expertise: This is in my backyard and my advocacy area. I haven’t worked on it as long as Tom but I have worked on it pretty actively. I represent and am Vice President of San Francisco Board Sailing Association. This beach was pioneered by kite-boarders and indeed that use was challenged in CEQA litigation as damaging the eelgrass. Of course it is kind of ironic because the fins on a kite-board are about that long (motioning approximately four inches with index finger and thumb) and eelgrass is subtidal so there is really not much possibility of damage. Sometimes you have to understand the recreational activity. But the importance of ADA access here is something I really have to stress. There is an active group in Berkeley, Berkeley Outdoor Recreation Program, and they are very ably represented by Greg Milano. Greg took me around different sites so I could try to appreciate from the perspective of somebody with disabilities the problems of access. And there is nothing more important to disability access than a Bay Trail that is wide enough with a good surface and the right grades. I ride over the racetrack on my bike. I am not in a wheelchair. I am not in an adaptive bike. Adding that here is an immense benefit, it is a huge increase. Increasing access for other people probably relies on better parking and there will continue to be a battle over that. But I am really excited after 14 years and dozens of acres of habitat restoration to finally see a significant amount of money going into public access improvements. The existing revetment out there, if you try to get into the water you are going to cut your feet miserably, it is not holding the garbage; it is not water-quality solid. That is a benefit. The Trail would be immensely better. Although there are no new areas of access, the real accessibility of that Trail, particularly to people with disabilities, is going to be hugely improved. This is a site I have walked, kayaked; I have been on this beach. I have been all through the Bulb. I don’t know how much more can be done within the shoreline band in the issues of sea level rise. But I really want to stress the importance of ADA improvements here. Commissioner Pine delved into the aspects of flooding and sea level rise: I just wanted to better understand your analysis on the flooding and sea level rise. On page 13 of the staff report we project the rising tidal elevation as high as 12.2 feet in 2100 and the revetment will be built to 12 feet. On page 14 we talk about the fact that it was concluded it was not practicable to make the revetment any larger. And I guess the plan is it is okay for the water to overtop it; it will withstand overtopping. I guess we are acknowledging that overtopping will happen. But then towards the end of the section it goes on to talk about potentially increasing the height, if necessary, so it was hard for me to follow exactly what the plan is here, both the near-term and long-term. Are we going to rebuild this thing in 2075 or is this pretty much it? Are we just going to let the water overtop and that’s fine? Mr. Peters addressed the subject of revetment: The revetment has a 35 year life the way it is designed and it is designed and it would be fairly easy to add to the top of it. The revetment has been designed so that it can withstand infrequent overtopping, both the revetment and the landscaped area above it. I think it is adaptive management where it has been designed in such a way that over time as we better understand sea level rise and the rates of sea level rise that it can be easily added to by adding additional armor stone on top without having to get into the Bay water and all of the complications of reconstructing the entire revetment. Commissioner Pine continued: I like the adaptive management approach. But it does say nonetheless it was concluded that a higher revetment elevation “was not practicable.” Is it practicable in the future? It is not advisable right now. It sounds like it is practicable but not advisable. Mr. Peters replied: I would agree with that, not advisable. Raising the revetment would be taking from the landscaped strip and would be minimizing the appearance and experience of the user. We firmly believe the revetment is designed well to withstand infrequent overtopping and it is resilient and will easily allow, in some distant future, adding armor stone on top of it. Acting Vice Chair Chappell opened the public hearing on this item: I would like to open the public hearing. If you would like to speak and have not yet filled out a blue card please do so. I have two cards here; the first is Barbara Stebbins. Ms. Barbara Stebbins commented: I am here representing the local Clean Energy Alliance with its 90 member organizations in California. We are excited about the project at Albany Beach. As a frequent visitor to Albany Beach and user of the Bay Trail I am personally very excited as well. We see a lot of really good jobs there in this project and we are here to urge the Commission to adopt a local union hire policy for projects like this. The Clean Energy Alliance advocates for the development of local, renewable energy resources. We do this in part because we know local projects can also provide maximum community benefits in the form of good jobs. So the Commission has the opportunity, and we think the responsibility, to really think about a local union hire policy when these projects move forward. Hiring local union labor ensures family-sustaining wages as well as benefits. It also ensures that you get the best skilled labor to do the job correctly. Good jobs result in building community wealth because people have more money to spend in their community. So you have this opportunity here to contribute to the local economic sustainability as well as the environmental rehabilitation so we encourage you to do that. Thank you. Ms. Lindsay Whalin addressed the Commission: I am an engineering geologist at the San Francisco Bay Water Board. I am here today to express the Water Board’s support for the Albany Neck Restoration Project. I am the case manager that is responsible for regulating the site because, of course, it is a landfill. I think it was in 2008 we issued a requirement to the East Bay Regional Park District to address the discharge of trash from this site. As mentioned, the Neck area is eroding into the Bay. Essentially the landfill was built by constructing that perimeter berm and the fill material included plastics, wiring, cable, concrete, bricks, et cetera. I have photos if you are interested; these were taken during my inspection in 2009. So as the Neck erodes these materials, of course, fall into the shoreline and this constitutes an unauthorized discharge of trash to the Bay. And as you are likely aware, the Water Board is very concerned about the prevalence of trash in our region’s water bodies. So typically we would require immediate corrective action in a situation like this but we were wooed by the prospect of the habitat enhancements of this project as proposed to us by the East Bay Regional Park District. They asked us to allow them to address the erosion as part of the larger project that was presented to you today.
And we are particularly impressed by the subtidal habitat enhancements proposed. We are used to receiving a lot of proposals for just riprap. It requires a lot of maintenance and it isn’t very pretty. So we are really hoping that we will see a lot more of these types of projects and we expect to strongly encourage them for our future Bay margin remediation projects if this one works out.I just wanted to make you aware that we have met with the excellent staff from both the District and BCDC during the development of the design. Your staff had some great insight into this project and I think we have all appreciated the coordination that has taken place. This is a very complicated project; and in my experience, the ones that require so many permits, those are always the good ones. So I am here just to let you know that we support this project and am really hoping just to emphasize the need for it in terms of the discharge of trash to the Bay. It is something that we are very much concerned about and we hope that the project can be constructed soon. Commissioner Zwissler inquired about subtidal habitat work: I was going to ask this earlier but you triggered it again. The subtidal habitat work, explain why that is a good thing. Ms. Whalin responded: Because we would like to see projects that aren’t purely riprap that have some sort of erosion control that is mimicking what we would find in the natural environment. Most of the proposals that we get for Bay margin remediation is hardscape, it is a lot of riprap, so anything that we can do that is trying to mimic the natural environment and use the ecological engineering perspective I think is something that we should be experimenting with. Commissioner Zwissler asked about water quality: But does that improve the water quality in some way? That is what I thought you were implying. I am just curious. Ms. Whalin explained: Well, it would improve it in terms of hopefully reducing possible erosion of the berm. It would be a much larger project to remove all of the trash and debris from that berm. So keeping it from eroding is really the key so that is really the water quality nexus. But we try, when we can, to take a broader perspective and look at our role. Our mission is to protect water quality but it is for the benefit of the public and wildlife and we see that as a larger goal there. Ms. Nancy Skinner commented on public access: I am a former State Assembly Member and former member of the East Bay Regional Park District, former member of the Berkeley City Council when Assembly Member Bates established the Eastshore State Park. And a very, very frequent visitor to this area and I just wanted to comment on the public access aspect. I appreciate, Commissioner McGrath, your comments around that but I also wanted to add that these improvements are going to give -- it’s funny, public access, there’s many ways to approach it. Clearly providing disability access and expanding; there’s all kinds of access to public access but one thing is your perception of it. And if you visit the area now there is, in a way, a perception of non-public access for a couple of factors. One, because of this very, it feels dangerous. It feels that if you’re walking on it that it is unstable so you may not want to use it. Secondarily the private
landowner has a lot of fences. The way that you get into certain parts of the beach, in a way you have to get around those fences and it’s often you are not quite clear: are you trespassing now? Are you on private property or are you on the Eastshore Park? So the improvements that are underway and described here, I think are going to also enhance public access, a lot due to perception. Thank you.Acting Vice Chair Chappell continued the meeting: Are there any other members of the public who would like to address the Commission? Seeing none, could we have a motion to close the public hearing? MOTION: Commissioner Scharff moved to close the public hearing, seconded by Commissioner Arce. The motion carried by a voice vote with no abstentions or objections. Acting Vice Chair Chappell: Are there any other questions or comments by the Commissioners at this time? Commissioner Arce reiterated the importance of the job-creating aspect of this project: I think with folks that worked on this for 40 years, I am someone that has worked on it for about 40 minutes, so I just wanted to say great work to get to this point. The local Clean Energy Alliance, Barbara, is somebody who is actually working throughout the Bay Area around promoting projects like this and also reminding us that environmentally good projects can also create jobs and jobs for communities and just something to think about, if this is a prevailing wage project. And certain things as you go out to bid on this first project, which then becomes the model for the rest of the habitat restoration, you want to just be sure that you are asking folks, the partners to build this and do this work, ask them to do more than just give you a cheap bid. It’s partly what excited folks in Alameda around the transportation measure, as Commissioner Wasserman could testify to. When you talk about doing better for workers and engaging communities in doing this, especially around environmentally good things, then people just get more and more and more excited. And then nobody could ever say environmentalists don’t know how to create jobs, good-paying jobs for communities. This is a powerful thing we could do and I would even just if we could adopt a policy. I am one of about 65 votes on this Commission, but this would be one vote in favor of doing something like a policy, thinking about a local hiring policy, a community hiring policy to promote good-paying jobs. But certainly at the East Bay Parks level it is definitely something you might want to think about doing because you could really build a lot of excitement and increase support to just do work like this all up and down everywhere and we could be doing it for the next 40 years and beyond. But really excited about doing this. Acting Vice Chair Chappell asked for the staff recommendation: Ms. Levenson, could you present the staff recommendation? Ms. Levenson presented the staff recommendation: The staff recommends that the Commission approve BCDC permit application No. 2014.005 for the construction of Phase I improvements associated with the Albany Beach Public Access and Habitat Restoration Project. The staff recommendation contains several special conditions to ensure that the project is constructed and maintained in a manner that is consistent with the McAteer-Petris Act and the San Francisco Bay Plan. For instance: Special Condition II.A requires the Park District to receive approval of final site and engineering plans prior to the start of construction; Special Conditions II.B.3 and II.F require maintenance of the public access improvements and the shoreline revetment; and Special Condition C requires the submittal of annual monitoring reports that will report on the functioning of the habitat features. This information will help provide information to ensure that the benefits of the habitat features are being provided, that we have information that will enable any sort of product modification if so needed, and it will also be helpful in informing future projects proposing fill in the Bay for habitat purposes. With these conditions the staff believes that the project adequately addresses issues raised in the staff summary and is consistent with your law and policies regarding fill, shoreline protection, public access, natural resources and water quality. And with that we recommend that you adopt the recommendation. MOTION: Commissioner Bates moved approval of the staff recommendation, seconded by Commissioner Scharff. Acting Vice Chair Chappell inquired of the applicant: Do the Applicant’s representatives, have you reviewed the staff recommendation and are you in agreement with it? Mr. Barton replied: Chris Barton with the East Bay Regional Park District. Yes, I have reviewed the conditions and we do agree with all the conditions in the resolution. Commissioner McGrath commented on subtidal benefits: This is perhaps the first time that this Commission has seen subtidal benefits but I just wanted to point out that the Coastal Conservancy, after it was pointed out by a number of scientists, that there is a lot that goes on under the Bay that is important to habitat that maybe is beneficial. The Coastal Conservancy did prepare a subtidal goals project with participation from the agencies, so this does implement that. And that is something that maybe if you are interested you could take a look at. But this is fully consistent with that and does take advantage of the groundbreaking work of our sister agency. Acting Vice Chair Chappell called for a roll call vote. VOTE: The motion carried with a roll call vote of 17-0-0 with Commissioners Addiego, Bates, Gilmore, Scharff, Arce, Gorin, Pemberton, McGrath, Nelson, Pine, Randolph, Sears, Vasquez, Techel, Wagenknecht, Zwissler, Acting Vice Chair Chappell voting, “YES”, no “NO”, votes and no abstentions. 11. Briefing on Bay Plan Policies Applicable to Proposed Sand Mining Activities. Acting Chair Chappell announced: Item 11 is a briefing on the Bay Plan policies applicable to sand mining. This will be a briefing by staff on Bay Plan policies that apply to our consideration of the applications for permits to mine sand from the Bay. Brenda Goeden will provide the briefing. Brenda Goeden, BCDC’s Sediment Program Manager presented the following: As you may recall, at the January 17th Commission meeting Rosa Schneider of your staff presented a summary of the sediment transport system and sand mining activities that take place in San Francisco Bay. At that meeting the Commission asked a series of questions and made a request for a briefing on policies relevant to the pending sand mining applications currently before the Commission. Today I will present responses to the Commissioners’ questions. The questions were related to permit compliance, the California Environmental Quality Act review by the States Lands Commission and applicable Bay Plan policies. I have also included in this briefing a current permit schedule for your reference. First, the compliance issues. These issues are part of the public record and BCDC permitting history. To our knowledge, these issues have been corrected. The Commission requested that we provide a brief summary of the compliance issues that have occurred with sand mining. While historically there were multiple permit violations with previous sand miners, there are only two companies actively mining sand today in the Bay, Hanson Marine Operations and Lind Marine, formerly known as Jerico Products. Of the two, Hanson has had violations of their permit and has worked with the Attorney General’s Office and the Commission staff to resolve those violations. These include instances of mining off the lease and permitted areas, mining in excess of the permitted volumes and a fraud case brought by the State and the Attorney General’s Office. Commission staff has worked with the miners to resolve these issues regarding mining off leases. In 2004, we implemented a silent inspector program on the barges that monitors both where the barge is when they are mining and the transport in and out of the lease areas. The information is available on the intranet, so we can see in real time where the mining takes place. Regarding the reporting violations and the excess volumes, we have increased the number of reports that are required. We now have quarterly reports, which allows us to track the actual volume of mining more frequently and keep up with the total volumes. We added some more detail to the reporting requirements for clarity. When staff receives these reports we generally review them within about a month of receipt. We compare the volumes mined pretty regularly and we would notify the miners if they were getting close to their maximum volumes to prevent exceedences. Regarding the fraud case, that was settled out of court for $42.2 million; I do not have a lot of details on the case, but that was the resolution. Next we will address the CEQA process, these comments are provided with assistance from Commissioner Pemberton. I won’t be actually discussing the findings of the CEQA document today but responding to the questions that the Commissioner asked regarding significance thresholds.
To provide context, here is a brief history of the process and the milestones during the CEQA process. The State Lands Commission was the lead agency and BCDC was a responsible agency. The process began in 2007 and the initial draft EIR was circulated in 2010. In 2011, an additional draft was circulated to correct some discrepancies regarding state and federal lands. BCDC did comment on the CEQA documents, and it was certified in October of 2012.Regarding the Final EIR, the Commission had asked how BCDC will use the document. As is our practice, we participated in the review and commented. Once the CEQA document is complete we use the information that is presented as part of our analysis. We also use additional information from the scientific community, the public and the applicants as part of our analysis and we review the project under the McAteer-Petris Act and the San Francisco Bay Plan, and where appropriate, the Suisun Marsh Protection Act and Plan. Commissioners asked how the baseline was developed for the CEQA document. Per State Lands’ information, the baseline volume was established by taking an average of the mining activity for all leases for the five year period from 2003 to 2007. 2007 was chosen because that was the year of the Notice of Preparation for the CEQA document. This is consistent with the CEQA guidelines, but the CEQA guidelines do allow for discretion from the lead agency on that issue. The baseline volume was approximately 1.4 million cubic yards annually. Determination of significance in the EIR. One of the Commissioners asked what the thresholds of significance were used. State Lands Commission used a number of significant thresholds as described in Appendix G of the CEQA Guidelines manual. Because they are lengthy I have summarized them here. So for Biological Resources the thresholds of significance included: the potential to take listed species; net loss of habitat; impediments to migration and substantial loss of population; or habitat for a species. For the Mineral Resources they looked at the loss of availability of the resource and its value to the region or state; or loss of the ability of a locally important resource. For Water Quality the significant thresholds included: exceeding water quality objectives or toxicity rule; creation of long-term changes in the receiving environment; increased contamination levels that have potential to cause harm; altered topography that creates substantial erosion or sedimentation. For the Hazards and Hazardous Materials threshold, the significant thresholds included: operations inconsistent with regulations; non-conformity with contingency or hazard plans; and the potential for accidents or insufficient emergency response capabilities. For Cultural Resources they looked at substantial change in a historical resource; unique archeological; paleontological or geological resource or disturbance to human remains. And finally for Land Use and Recreation’s significant thresholds, they looked at conflicts with existing conservation plans; adopted recreation or planning efforts and incompatible land use; and residual impacts on water recreation. For Air Quality they looked at conflicts with the Air Quality Plan; violations in standards; results in a cumulatively considerable net increase in pollutants; exposing sensitive receptors; adverse impacts to human health that would be considered a significant impact to climate change if it were to increase greenhouse gases and where included in a state greenhouse gas inventory or any greenhouse gas not included in the state inventory or conflicts with a plan to reduce greenhouse gases adopted pursuant to Assembly Bill 32. The next question that the Commission had asked was what were the State Lands lease criteria? These comments were also provided by the State Lands Commission. The State Lands Commission, first of all, must comply with all applicable regulatory statutes, including the CEQA process, during their consideration. Regarding the lease itself, as the landowner they have broad discretion to manage lands and natural resources under its jurisdiction and authorizes leases for occupation, use and development of the lands and resources subject to the common law and public trust doctrine and the terms and conditions that are in the best interest of the people of the State of California. Those criteria include these six items: Consistency with common law and statutorily public trust doctrine; consistency with the State Land Public Trust’s needs and values at that particular location; consistency with CEQA and contingent upon all regulatory approvals being obtained; the fair market value compensation is provided for occupying and use of the State’s property or resources; that the state is adequately protected from liability associated with its authorized use; and that the lease is otherwise in the best interest of the State of California. Next we will move to the permit schedule and I will provide you an update on where we are to date. As you may recall, the applications were submitted in February of 2013 and at this time they are currently unfiled. We have been working with the applicant very diligently to obtain all filing requirements but what we are waiting for are the Water Quality Board to issue its waste discharge requirements, anticipated to happen next week. We have been working in close coordination with the Water Board. We are also waiting for NOAA Fisheries Service to complete their biological opinion and that is, from what I understand, due in any day. In January 2014 we hosted a science panel to help inform the process. We are currently scheduled, and if we receive the two documents that I previously mentioned next week, for a public hearing before the Commission on February 19th, and the vote is then scheduled for March 19th. In the meantime, because the permits expired on December 31, 2014, we issued a six month time extension with the authorized volume that remained on the permits from 2008 for continued mining, which should be adequate for a few months. The next section and the last section of this briefing is regarding the San Francisco Bay Plan policies. As with the information provided with the CEQA document, this portion of the briefing does not include interpretation or analysis of the policies on the project itself. That information will be provided to you in the staff summary and the staff recommendation. The reason why we are not providing that informaation today is because it would be premature since the applications are not yet complete and we do not have all the information to provide a full analysis. The following Bay Plan policies are applicable to the sand mining projects. I am not going to read these policies to you verbatim because that would take the better part of the afternoon and evening but I will be summarizing them for you. In your packet you have the full policy language. The number is highlighted with a little bit of yellow ink to direct you to each of the policies that I will be referring to. First, Fish, Other Aquatic Organisms and Wildlife, Policies 1, 2 and 4 are applicable. Policy 1 strives to conserve, restore and increase Bay habitats for the benefit of fish, other aquatic organisms and wildlife. Policy 2 directs the Commission to protect habitats that are needed to conserve, increase or prevent the extinction of any species. Policy 4 directs the Commission to consult with the resource agencies and requires applicants to obtain appropriate take authorization and biological opinions where they are required and when an affected species is listed. Water Quality Policy 2 is applicable and it ensures that water quality in all parts of the Bay is maintained at a level that supports beneficial uses of the Bay. It also directs the Commission to consider the policies, recommendations, decisions and advice of the Water Board. The next set is Tidal Marsh and Tidal Flats. Policy 1 directs the Commission to conserve tidal marshes and tidal flats and that we may not authorize dredging projects that would substantially harm tidal marshes or tidal flats unless they provide substantial public benefits and there is no feasible alternative. Policy 2 requires a thorough evaluation of dredging projects to determine the effect of a project on tidal marshes and tidal flats and minimize, if feasible, and avoid any harmful effects. Policy 5 directs the Commission to support comprehensive Bay sediment research and monitoring to help understand the sedimentation processes and transport of the Bay in regards to restoring wetlands. Subtidal Areas, Policy 1, 2 and 5 are applicable. Policy 1 requires thorough evaluation of projects in subtidal areas in that they are designed to minimize and, if feasible, avoid any harmful effects. Subtidal Policy 2 states that subtidal areas that are scarce or have an abundance and diversity of wildlife should be conserved. Furthermore, projects in these areas should be allowed only if there is no feasible alternative and the project provides substantial public benefits. Policy 5, again, directs the Commission to support and encourage an expansion of scientific information on Bay subtidal habitats. The mitigation policies are very long and all of them actually apply, so I have gone further in my summary to lump some of the similar policies together for you. Policy 1 specifically says that projects should be designed to avoid adverse environmental impacts to natural resources. Whenever adverse impacts cannot be avoided, they should be minimized to the greatest extent practicable. And then, any unavoidable adverse impacts should be mitigated for. Policies 2 and 3 look to mitigation projects to be sited and designed with a Baywide ecological context and as close to the project site as possible. And then to take into consideration potential benefits to humans from natural resources. Policies 4 and 5 speak to the amount and type of mitigation that should be determined for each mitigation project based on clearly identified rationale and favor restoration over creation of habitat to increase the likelihood of its success. Policy 6 says that mitigation should be provided prior to or concurrent with the project components that cause adverse effects. Policy 7 and 8: When mitigation is necessary a mitigation program should be coordinated with all affected agencies and reviewed and approved by or on behalf of the Commission as part of the project. Policy 9 says if more than one mitigation program is proposed, costs should be considered in determining the program. And the last two policies for mitigation are Policy 10 and 11 and they state that the Commission may allow fee-based mitigation, use of credit or mitigation banking where other mitigation measures are infeasible. Then the dredging policies. Dredging Policy 2 directs the Commission to authorize dredging projects when they meet a number of requirements that are laid out in the Bay Plan, including that the project will result in the minimum dredging volume necessary for the project. Policy 7 says all dredging projects should be designed to not undermine the stability of a number of items, but relevant to this project, fish and wildlife habitats. And then the last dredging policy that we will call out today is Policy 12, which directs the Commission to support initiatives to conduct research on Bay sediment movements. Recreation Policy 3 speaks to encouraging and allowing activities with access consistent with following standards, but it includes a number of different items, and in particular beaches. It says “Sandy beaches should be preserved, enhanced, or restored for recreational use, such as swimming, consistent with wildlife protection”. The public trust policy directs the Commission when taking any action that affects land subject to the public trust, they should ensure that the public trust action is consistent with public trust needs for the area. And the last policy that we believe is applicable to this set of projects is Navigational Safety and Oil Spill Prevention, Policy 1. It ensures that marine projects are in compliance with oil spill contingency requirements. So that concludes my presentation. The remaining questions the Commission has asked will be covered in the staff summary and report. Commissioner Zwissler inquired about inherent conflicts in the policies: How are we to go about reconciling the inherent conflicts within the various policies? “Don’t dredge,” “get sand” and “restore beaches?” Ms. Goeden responded: That is an inherent challenge balancing conservation and development. We look at a number of different factors and look at each of the policies very carefully. We have to balance the affects and the benefits. We will make findings to get you to the recommendation that we believe is appropriate. It is a very difficult job. Commissioner Zwissler expanded discussion pertaining to the project inconsistencies: Do we worry that some of these inconsistencies might expose us to criticism that we are not adhering to the policies? Executive Director Goldzband commented: I want to put what Brenda just said into context. In talking with Commissioners many of them say to me, look at the alternatives and tell us what they are so we know that what you’ve done fits into a context that we understand. To answer your question Commissioner Zwissler, yes, there is so much discretion given to BCDC as a Commission with regard to how it looks at policies and looks at the real world in relation to those policies, that I don’t think that there has been in my association with BCDC over the past 15 years anytime where there has been a difficult decision that the Commission has faced in which there are not competing arguments and competing interests, all trying to figure out or help us and help staff figure out where the sweet spot is; to determine where maximum feasible public access is; where minimization of Bay fill is; and where we maximize the applicability of our Bay policies. That just always happens. This is because there is no algorithm. There is no way that Bob Batha as he looks at a permit can crunch numbers and decide what maximum feasible public access is. This is so totally site-dependent and project-dependent and depends on so many different factors. The answer is that we approach any issue very much the same where we see what the panoply of choices are and what the spread is. And we then narrow it down as much as we can knowing that if when we get to a point that we thing we are at the sweet spot, more than likely somebody is going to object, but we hope that the objections will be minimal and that we can say, but look at the benefits that you get. And then we leave it in your hands to determine whether the Commission actually agrees with that staff recommendation. (Chair Wasserman returned to the meeting) Chair Wasserman continued: Questions from other Commissioners? Commissioner Scharff asked about Commission authority: When this comes before us is someone going to lay out what our authority is? The State Lands Commission is the one talking about entering into the lease. Can we say, no, you can’t enter into any leases? Can we say, you can only have a one-year lease? Ms. Goeden responded: The State Lands Commission has issued the leases. They have given specific volumes for each lease area for the mining activity. All agencies involved are acting. For each agency’s action they have their own legal authority under their own law and policy whether it be federal or state. They have the ability to authorize the project or not, and the ability to minimize impacts through various conditionings. They have the ability to ask for mitigation. We have all of those same abilities. Executive Director Goldzband added: And what we are doing as a staff is to be able to present to you in an A to Z format the parameters and guidelines inherent in our staff recommendation. This will be presented to you in the form of the staff summary and recommendation. The information that precedes that will come to you a month earlier. We recognize the difficulty of this. It is a complex issue. We want to start and end at a place so you can see how you get from A to Z. Commissioner Zwissler asked about BCDC’s ability to impact the lease: Is the direct answer to that question that we don’t have the ability to impact the lease? You were asking about terms of the lease. Commissioner Scharff replied: I thought we had the ability to have lower volumes if we made that a condition. Ms. Goeden concurred: We do. Chief Deputy Director Goldbeck provided clarifications: The State Lands Commission issues its own lease. What we are doing is regulating the activity. They have a permit before us to do the work they have proposed. We wouldn’t allow them to do it if it wasn’t consistent with the lease. You would make an approval based upon your law and policy. Commissioner Pine was recognized: Can someone translate for me what 1.4 million cubic yards really is. It is very hard for me to conceptualize how much sand we’re moving around. Ms. Goeden responded: The building we were in at 50 California Street, the 36 floor building and approximately a quarter of a city block; that was 400,000 cubic yards of volume. Commissioner Pine commented on the difficulties of this decision: I think this is going to be one of the more difficult decisions for the Commission to assess particularly given how much science and technical expertise is involved. I wonder if there should be an adhoc subgroup of the Commission to push and pry on data. The challenge for a big Commission in a technical area is always hard. I don’t know if this would be helpful or not. It is very hard for me to know how to look at this given the complexities. Commissioner Gilmore spoke to Commissioner Pine’s suggestion: If we were to do a subcommittee that would impact the timeline. My question is, how sensitive is that timeline given the fact that I heard that they have an extension up until June and if everything lined up perfectly it would come to us for a vote in March. There is that time frame between March and June. Ms. Goeden replied: When the application is filed complete, you have 90 days to act from the day the application is filed. It is not filed complete yet. There is some potential that if we needed to go beyond that 90 days we could ask the applicant to allow us to continue the process beyond 90 days but they would have to agree to it. As far as the June deadline, while we put the June deadline into the time extension, at least for one of the companies; they are running fairly short of volume on their existing permits. There is also some potential to impact their ability to continue their mining activities all the way through June, even now. Deputy Attorney General Chris Tiedemann counseled the Committee: There is also a legal constraint on having a sub-committee for a permit decision. That decision needs to be made on information that is available to every member of this body who votes on the permit. Subcommittees are appropriate for policy matters but they are not appropriate for a permit. Commissioner Pine clarified further: Certainly, a sub-committee could never decide on a matter such as this. It would be a potential forum for bringing a Commissioner’s perspective to a complex matter outside of this setting. Maybe this setting is the best we can do. I am very hesitant to add any time to this. This process started eight years ago. This is going to be really challenging to sort through this. Chair Wasserman announced: We do have some speakers on this item. Mike Roth is one of our speakers. Mr. Roth addressed the Commission: I am with Lehigh/Hanson. I would like to clarify the issue that was spoken to at the beginning of the presentation. This was in regards to a question that Commissioner Gioia asked at the July 17th meeting. This surrounded some of the legal activities with sand mining. Essentially, Hanson acquired a group of family businesses that were in the sand mining business in 1999. It was a stock purchase not an asset purchase. When we acquired these companies we assumed all of their liability. Unfortunately, there were some activities going on that we couldn’t determine during due diligence. They were not exposed to us. As a result, roughly a year after we acquired these businesses we thought everything was going along perfectly and there was a labor issue that came up. One of the members of the labor group that was working on the boats blew the whistle that they had been mining for several years; I think it was in the neighborhood of 10 to 12 years, outside of their boundaries. They were taking more sand than they should have been. I’d like to make two points. Number one, when this was discovered Hanson said to the Attorney General’s Office, we will do whatever it takes. We want to cooperate with this whole activity. This isn’t the way we do business. And secondly, the most important thing that came out of this, and this was mentioned during the presentation earlier, all the ways that we measure and we track all the movements of these vessels is highly sophisticated today so that the operators can no longer do the activities that they were doing in the past. I just wanted to clarify that. Commissioner Zwissler added: I want to thank you for clearing that up. I was curious. Mr. Christian Marsh spoke: I am with Downey Brand here in San Francisco. I am permitting counsel to both Hanson and Lind, the applicants. We appreciate the effort that staff has put in over the last eight years to evaluate this project. The permitting issues have been very difficult and very intense. I do want to note for the record, we understand that you are in possession of a letter from BayKeeper who is also the plaintiff in a lawsuit against the State Lands Commission on the environmental impact report, which they did not prevail on. The Trial Court found that the State Lands Commission’s determination that the sand mining that was occurring or would occur would not have a project level or a cumulative level impact on coastal morphology and was indeed supported by substantial evidence. We will be providing a more detailed response to that letter before your next briefing and we will try to do that well enough in advance that you have an opportunity to digest it. It is probably no surprise that we take issue with many of the statements in that and believe that it is not supported from either a legal perspective or from a factual perspective. I want to give two examples. They state in their letter that sand mining is not a public benefit. This is incorrect. The state has expressly found in its EIR that the public benefits of this project are clear and substantial. They also say that sand mining would conflict with the Bay Climate Change Policies. Now the Climate Change Policy itself was not actually mentioned in the presentation as one of the areas that the project will be evaluated on. It is particularly ironic that that is a policy that they raise because if the project is not allowed to mine sand and the sand has to come from somewhere else, either surface resources or imported from a foreign country, the calculations are, at least, and this is undisputed evidence, that Green House Gas emissions would increase more than two and a half fold. They may state, and they have said, that there is new evidence that sediment transport and sediment supplies from Bay mining will cause adverse impacts to coastal resources; it’s important to put that evidence in perspective and understand that the studies that have come out since the environmental impact report have addressed sediment pathways, they’ve also addressed sources of sediment and confirmed the same pathways and sediments that were part of the environmental impact report analysis and were one of the underlying assumptions to the modelling, which again, concluded, no measurable impact on the offshore bar or coastal resources. I am happy to answer questions. Mr. Butler addressed the Commission: I am with the other sand mining company, Lind Marine. We will continue to work with staff as we provide information to support these projects being consistent with the policies that you heard about today. I am available if you have any questions. Thank you. Chair Wasserman announced: That concludes the people who have submitted cards to speak, any other comments or questions from the Commission? There is no action on this item at this time. I would like to ask if there is any Commissioner that would like a matter of new business placed on a future agenda? With that I would entertain a motion for adjournment.
12.Adjournment. Upon motion by Commissioner Zwissler, seconded by Commissioner Nelson, the Commission meeting was adjourned at 3:13 p.m.
LAWRENCE J. GOLDZBAND
Approved, with no corrections, at the San Francisco Bay Conservation and Development Commission Meeting of February 5, 2015. R. ZACHARY WASSERMAN, Chair