March 12, 2019 Enforcement Committee Meeting Summary

Three members of the Enforcement Committee attended the March 12, 2020, BCDC Enforcement Committee meeting, which was held at the Bay Area Metro Center, located at 375 Beale Street in San Francisco.

At the meeting, the Committee received three briefings and held a public hearing on a proposed cease and desist order. The first briefing addressed proposed legislation AB 2809 (Assembly member Mullin) introduced on February 20, 2020, to amend portions of the McAteer-Petris Act and Suisun Marsh Preservation Act to address the recommendations in State Auditor Report 2018-120 intended to improve BCDC’s enforcement program and process.  Among other measures, AB 2809 requires BCDC to create and implement certain enforcement procedures.  It also includes a measure amending the requirement for review of the local protection program for Suisun Marsh to require the Commission to conduct a review no later than July 21, 2021, and it attempts to provide the Commission with the authority to record notices of violation to promote the resolution of enforcement actions.  After the legislative briefing, the Committee held a public hearing on a Proposed Cease and Desist Order to require the City of Oakland to restore and maintain Union Point Park following the removal of encampments in the Park and the closure of the Park to further encampments.   The hearing included a presentation from the City of Oakland.  Both BCDC staff and City staff explained that the Order was the product of extensive negotiations and that the City is not contesting the Order.  During the public comment, Brock de Lappe, Harbor Master/Property Manager Alameda Marina, spoke in favor of the adoption of the Order.  The Committee then voted unanimously to adopt the recommended enforcement decision and acknowledged the value of the collaborative approach that was taken to resolve the case.

After the public hearing, the Committee received its third briefing updating the Commissioners on the resolution of the oldest enforcement cases.  This focused on the status of five open cases.  The third and final briefing addressed staff’s current practice in considering factors that would justify combining multiple violations for purposes of assessing a single administrative civil penalty.  The Committee provided direction to staff to guide further efforts in developing written procedures or regulatory language, noting that the approach should be simplified and focus on the nature of both the violations at issue and their effect on the Bay, of the ability to ensure maximum feasible public access to the Bay and the shoreline, as well as equity considerations.  The discussion recognized the need for transparency for regulated community and consistency in the resolution of cases.

After the enforcement report, the Committee discussed the impact that the COVID-19 virus will have on the ability to have ongoing in-person meetings.  Chair Scharff proposed ongoing discussions with staff as the situation evolves and more information is made available to determine next steps and options for holding meetings that will allow for remote Commissioner and public participation.

For details on each briefing, contact Priscilla Njuguna (415-352-3640, priscilla.njuguna@bcdc.ca.gov).

The next Enforcement Committee meeting is scheduled to be held from 9:30 AM to 12:00 PM on March 25, 2020, at a location to be determined. At that meeting, the Enforcement Committee will receive an update on the Richardson’s Bay enforcement case.

For additional details on the location or timing of any upcoming Enforcement Committee meeting, contact Margie Malan (415-352-3675; margie.malan@bcdc.ca.gov).