Draft Minutes of April 1, 2021 Virtual Commission Meeting

  1. Call to Order. The virtual meeting was called to order by Chair Wasserman at 1:01 p.m. The meeting was held online via Zoom and teleconference.

  2. Roll Call. Present were: Chair Wasserman, Vice Chair (represented by Alternate Chappell), Commissioners Addiego, Ahn, Beach, Burt, Butt, Chan (represented by Alternate Gilmore), Eisen, Gioia, Gorin, Gunther, Lee (represented by Alternate Scharff), Lucchesi, Moulton-Peters, Peskin (represented by Alternate Stefani), Pine, Ranchod (represented by Alternate Nelson), Randolph, Showalter, Spering (represented by Alternate Vasquez), Vacant (represented by Alternate Hillmer), Wagenknecht and Ziegler. Senator Skinner, (represented by Alternate McCoy), was also present.

    Chair Wasserman announced that a quorum was present.

    Not present were Commissioners: Secretary for Resources (Eckerle), California Department of Transportation (El-Tawansy), Department of Finance (Vacant)

  3. Public Comment Period. Chair Wasserman called for public comment on subjects that were not on the agenda.

    Chair Wasserman gave the following instructions: Now, I want to quickly share some instructions on how we can best participate in this meeting so that it runs as smoothly as possible. First, and this applies to everyone, please make sure you have your microphones or phones muted to avoid background noise. For Commissioners, if you have a webcam please make sure that it is on so everyone can see you. For members of the public, if you would like to speak either during our open public comment period or during a public comment period that is part of an agenda item you will need to do so in one of two ways. First, if you are attending on the Zoom platform, please raise your hand In Zoom. If you are new to Zoom and you joined our meeting using the Zoom application, click the Participants icon at the bottom of your screen and look in the box where your name Is listed under Attendees, and find the small hand to the left. If you click on that hand, it will raise your hand. Second, if you are joining our meeting via phone, you must press *6 on your keypad to unmute your phone to make a comment. We will call on individuals who have raised their hands in the order that raised. After you are called on you will be unmuted so that you can share your comments. Remember, you have a limit of three minutes to speak on an item.

    Please keep your comments respectful and focused; we are here to listen to everyone who wishes to address us, but everyone has the responsibility to act in a civil manner. We will not tolerate hate speech, threats made directly or indirectly, and/or abusive language. We will mute anyone who fails to follow those guidelines or who exceeds the established time limits without permission.

    Every now and then you will hear the Chair refer to the meeting "host" — our BCDC staff are acting as hosts for the meeting behind the scenes to ensure that the technology moves the meeting forward smoothly and consistently.

    BCDC has also established an email address to compile public comments for our meetings. Its address is publiccomment@bcdc.ca.gov. I have received emails from one party that has been shared with all the Commissioners prior to the meeting. If we receive any emails during the meeting they will be shared with the Commissioners and be made available on our website bcdc.ca.gov along with the public comment emails we already have received.

    Dr. Stephen Allison was recognized: My name is Doctor Stephen Allison. I am an inpatient psychiatrist at Marin Health Medical Center but my statements and opinions are my own not those of the institution where I work.

    I do care for some of the most under-served patients in the entire Bay Area as an acute psychiatrist. I am calling to plead that BCDC please reconsider its approach to live-aboard mariners residing on Richardson Bay.

    Also, I would ask that the Commissioners please consider all available options when working with the local communities here in Marin County with regards to options for helping innovative solutions as we face global climate change and a wave of homelessness sweeping across the entire Bay Area.

    These issues dramatically affect the most vulnerable members of our community. It makes my work caring for these individuals much more difficult and we need your mercy, your creativity and your help.

    I am an advocate supporter of the environment but I do think there are creative solutions that have been proposed over the years including a mooring field and other zoning changes that can be made to accommodate affordable housing, perhaps on new piers on Richardson Bay. These need to happen sooner than later. We need to work quickly.

    And while this is needed the rate of destruction of vessels that may be marginal but they are still better than nothing — is accelerating.

    So I ask, please, please add this to your agendas and consideration and reach out to — whether it is up to the state level or to local communities to reconsider; I know this is something that has been in the works for years and I have not been along for every twist and turn along the way but these are historic times we live in and we need creative and new solutions. Thank you very much for your time.

    Chair Wasserman acknowledged: Thank you, sir. I think that is our only public speaker. Chair Wasserman moved to Approval of the Minutes.

  4. Approval of Minutes of the March 18, 2021 Meeting. Chair Wasserman asked for a motion and a second to adopt the minutes of March 18, 2021.

    MOTION: Commissioner Scharff moved approval of the Minutes, seconded by Commissioner Gorin.

    The motion carried by a voice vote with Commissioner Burt voting “ABSTAIN”.

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

    ABAG has appointed Pat Burt, the Vice Mayor of Palo Alto, as our new South Bay representative. He is joining us here today and we welcome him.

    Commissioner Burt commented: I am real pleased to join the Board. The protection of the Bay has been a lifelong interest of mine. With the increasing issues of sea level rise I have been additionally interested in the work that you are doing and look forward to working with all of you. Thank you.

    Chair Wasserman continued: Thank you. We look forward to working with you. David Canepa, who sits on the San Mateo Board of Supervisors has been appointed as

    Commissioner Pine’s Alternate, replacing Carol Groom who served as an Alternate for over 10 years. I would like to thank her for her valuable service to the Commission and welcome him to the Commission.

    I would like to ask Enforcement Chair, Commissioner Scharff to provide a brief summary of the Enforcement Committee meeting held on March 24th.

    Enforcement Chair, Scharff provides a brief summary: We had a meeting and it looks like on the Richardson Bay and it looks like things are moving. They gave us an update on where we were on that. It seems like the RBRA is moving forward to do what they need to do.

    Chair Wasserman acknowledged: Thank you. Any questions for Commissioner Scharff? (No questions were voiced)

    As we know our major task — adapting to rising sea level — does not change. There was a report indicating that current projections, including by the major scientific panel of sea level rise, may be too conservative. Those estimates talked about potentially 39 inches by the end of the century.

    But there are some reports that in order to even have that level we would have to reduce our existing carbon emissions by 200 to 300 giga-tons which is not likely to happen.

    So the projections could easily be 10 inches more than that and maybe even more. We just don’t know. All of that indicates that we need to make sure that we are doing everything we can to speed up our own efforts at adaptation as difficult as that may be and it is difficult; but we are making progress.

    We have tough times ahead of us but we are continuing to work on them.

    1. Next BCDC Meeting. Our next BCDC meeting will be on April 15th. At that meeting we may:

      policies;

      1. Vote on the proposed amendments to our Enforcement regulations;
      2. Hold a possible public hearing on a guidance document for our climate change
      3. Hold a briefing and possibly take positions on pending legislation;
      4. Hold a briefing on homelessness and its effect on our public-access areas; and,
      5. Hold a briefing on our regulations on ex parte communications and the proposed amendments to those regulations.
    2. Ex Parte Communications. This is the time when anyone who has had an ex parte communication that they have not already reported in writing or that they wish to make verbally even though they made it in writing could do so about communications on items that may come up on our Agenda. You do need to make them in writing under any circumstances.

      Does any Commissioner wish to make an ex parte communication report? (No reports were voiced)

      That leads us to the Executive Director’s Report. Larry Goldzband is on vacation and Acting Executive Director Steve Goldbeck will present that report.

  6. Report of the Executive Director. Acting Executive Director Goldbeck reported the following: Thank you, Chair Wasserman.

    1. Staff. I am pleased to report that, unless anyone is opposed, Cory Mann will be joining BCDC’s Planning Division as an Analyst. Cory comes to us from the New York City Department of City Planning where he led the development of several complex plans and reviewed applications for waterfront projects. Cory has a bachelor’s degree from University of California, Santa Cruz (Banana slug) in Environmental Studies and a Masters of Regional Planning from Cornell University (Big Red!). Cory will join the team updating the Seaport Plan and a number of other projects with the Long-Range Planning Team. At your last meeting, Larry announced that we were planning to hire Shruti Sinha and Tony Daysong to join our Bay Shoreline Development Regulatory Team. I am hoping that they are here today so you can see their smiling faces. Are you here today?

      Ms. Sinha chimed in: This is Shruti.

      Mr. Daysong chimed in: Hi, yes — this is Tony here. It’s great to be here. Acting Executive Director Goldbeck acknowledged: Welcome.

    2. Form 700. As you know, your form 700 Disclosure documents are due today to the FPPC. Several Commissioners have not submitted theirs yet and I would like to remind you that this is a hard deadline and there are penalties associated with non-compliance, so please get them in today.

    3. Questionnaire. BCDC staff collaborated with Bay Adapt partners on a questionnaire, a survey to evaluate the region’s resource needs around rising sea level. We sent this survey to Directors of Planning and Public Works in local jurisdictions three weeks ago. Responses will enable Bay Adapt to inform the State Legislature and the Newsom Administration about the region’s needs. We’d like to ask you to reach out to your local government contacts to encourage their participation before the survey closes on April 9, 2021.

      And last but not least, I’d like to give a shout-out to our staff social media team that has been going on a year now, giving the Commission a social media presence on Facebook, Twitter and Linked In. They are doing this in their spare time as we do not have any dedicated resources to do this. But they are a dedicated bunch and I salute them and I’m sure you do as well.

      That concludes my report and I am happy to answer any questions.

      Chair Wasserman asked: Does anyone have any questions for Steve? (No questions were voiced)

      I have two quick comments. One, on your Form 700 — you can do it electronically and you can do it simply as adding a page or even just an additional agency to the one you have filed with your local jurisdiction. So please do that.

      And two, on a personal note — Cory, welcome. I just want you to know that one of the things I am proud of in my own history is that I am Founding Editor of City on a Hill Press, the campus newspaper for U.C. Santa Cruz — a long time ago.

  7. Consideration of Administrative Matters. Chair Wasserman stated: That brings us to Item 7, Consideration of Administrative Matters. Ethan Lavine of our staff is here if you have any questions on the Administrative Listing we mailed on March 26th. There is a public speaker on this item.

    Ms. Elizabeth Brekhus was recognized: I represent Zori Safari (phonetic) who is an adjacent owner. If you look at the plans that I understand you have received. You will see that there is a dock on the front of the plans that juts toward this dock.

    I have to say that it would be ideal if I could see everything that you received and that it was included in the Agenda packet so interested parties such as my client could understand what the Commissioners received.

    I have had some conversations with staff. I do understand that this item did not move location — meaning the dock is in the same location as it was approved by the city of Belvedere after seven or eight public hearings regarding the matter.

    So that has been important to us. We reached out early to BCDC staff and asked that they make sure that this item, the history of it was understood.

    And I don’t have any indication to the contrary but I also would just point out to the Commission that in an ideal world your agenda item would have a staff report and the plans so that everybody could understand whether there have been any changes proposed by staff or that are about to be approved.

    Again, it doesn’t appear to me that is the case but it is really also not clear from the Commission’s online agenda.

    Provided there is no change from the city of Belvedere’s approval location — my client supports this item and does not oppose it. However, if there has been any such change that is not apparent because we don’t have the plans posted online or a staff report that states such a thing; then we would oppose it and we’d ask that the Commission continue the item for further review.

    With that, that’s all I have. I am available if anybody has any questions for me.

    Chief of Permits Manager, Ethan Lavine commented: Good afternoon, Commissioners. The item on the Administrative Agenda — items that will be processed administratively — are listed for the Commission to alert Commissioners to our intended actions; in this case, to recommend a likely approval of this project and highlight some of the conditions that we are planning to attach it.

    So, our procedure for regulations is to put these on your Agenda prior to the time we actually issue the permit.

    In this case, in response to the comment from the interested party, the project that was applied for is the one that was worked through at the city level. That is how all projects come to us.

    So our process has the City taking any discretionary approvals that it deems on a project in this case, design review, a conditional use permit, before the time that the Commission acts. I believe the answer to the question posed by the interested party was that, yes; it is the same project that the City has seen.

    We will also be attaching Conditions of Approval related to some resource protection issues at the site, particularly around eelgrass.

    I am happy to answer any questions. We also have Rowan Yelton, our analyst on the project, here, if we could help clear anything up.

    Chair Wasserman added: And those conditions will be discussed with the applicant as the permit moves forward.

    Mr. Lavine acknowledged: Yes, that is correct.

    Chair Wasserman asked: Any questions from Commissioners? (No questions were voiced)

  8. Public Hearing and Possible Vote on the Department of Water Resources’ Broadmoor Island and Arnold Slough Tidal Restoration Project Located Within the Primary Management Area of the Suisun Marsh, at Bradmoor Island, Arnold Slough, and the Blacklock Restoration Site, in Unincorporated Solano County (Application for BCDC Permit 2020.005.00md). Chair Wasserman announced: Item 8 is a public hearing and possible vote on the Bradmoor Island Restoration Project in the Suisun Marsh. Schuyler Olsson will introduce the item.

    Permit Analyst Olsson addressed the Commission: My name is Schuyler and I am a Permit Analyst with BCDC and you were scheduled today for a public hearing and vote on the proposed Bradmoor Island and Arnold Slough Tidal Restoration Project in Suisun Marsh, Solano County.

    The Application Summary and Staff Recommendation for this project were mailed to you on March 19th. I will provide a brief introduction and the project applicants will then describe the project in further detail before I conclude with the Staff Recommendation.

    The proposed project site is in the northeastern corner of Suisun Marsh in unincorporated Solano County, to the north east of Grizzly Island. The closest urban centers are Suisun City and Fairfield, located at the top left of the map.

    This image shows a closer view of the project area outlined in black, which is comprised of Bradmoor Island, Arnold Slough and the Blacklock restoration site. The site is located along Nurse Slough and Little Honker Bay.

    The project involves restoring tidal action to approximately 608 acres of managed wetlands and nine acres of uplands at Bradmoor Island and Arnold Slough, two formerly privately-owned, duck clubs. The project will be implemented under the Suisun Marsh Habitat Management Preservation and Restoration Plan and will fulfill a portion of the Department of Water Resources’ mitigation requirements from the State Water Project.

    At Bradmoor Island shown here, restoration work will involve removing water-control structures and other infrastructure, creating internal ditch blocks and breaching exterior and internal levees to restore tidal action to the site.

    At Arnold Slough, shown here and located southeast of Bradmoor Island, work will involve removing a water-control structure, creating ditch blocks and grading and breaching exterior levees. In addition, at the Blacklock restoration site located west of Arnold Slough, which was previously restored to tidal action in 2007, a water-control structure will be removed creating a third breach of that site.

    The project involves fill in the Commission's managed wetlands jurisdiction. Proposed fill in managed wetlands includes use of on-site material excavated during levee breaching and grading to create internal ditch blocks, a construction of a ramp for monitoring fish and use of imported and on-site material to backfill levees in certain areas after water-control structure removal.

    In addition, old infrastructure and debris would be removed from the Bay and managed wetlands. In total the project would result in a net removal of approximately 510 cubic yards of Bay fill and a net removal of approximately 1,120 cubic yards of fill in managed wetlands.

    The image on the right shows the expected post-restoration, habitat outcomes including low, mid and high Marsh, open water and upland areas.

    The project will result in creation of new tidal channels accessible to the public by watercraft only, including an approximately 5,300-foot-long channel at Bradmoor Island and a 4,600-foot-long channel at Arnold Slough, shown here in blue.

    However, the closest, public, boat launch is located approximately five miles away at Belden’s Landing, limiting the public's ability to access the site by water. Moreover, no other improvements were proposed on-site due to several challenges to public access, including but not limited to the site's remote location and lack of public roads leading to the site.

    To supplement the limited, public-access improvements on-site the Staff Recommendation includes special conditions requiring in-lieu, public access including a payment of $150,000 to the Solano County Parks and Recreation Department for public-access improvements at Belden’s Landing and development of a Suisun-Marsh-wide, online, public access and recreation guide.

    These images show the location of Belden's Landing, the closest public launch facility, in relation to the project area. Again, it is located five miles away from the area, from the project site, by boat, along Montezuma and Nurse Sloughs here. The city of Fairfield is shown at the top left of the larger image for orientation and on the left is a zoom in of the Belden’s Landing site.

    So the restoration will result in the creation and enhancement of tidal wetland and subtidal habitats over approximately 616 acres, providing improved water quality and valuable, food-web benefits to native and listed species including Delta smelt and longfin smelt, both on- site and in the region.

    In addition, the project will provide enhanced and protected habitat and bird nesting sites for special status plants, animals and other wildlife and will provide other viable ecosystem services and benefits.

    Earlier today you were provided or it was posted on the website an errata sheet that identified several needed changes to the Application Summary and Staff Recommendation previously mailed on March 19th. In summary, the errata sheet states that 20 cubic yards of fill previously thought to be in the Bay as described in the Application Summary and part of the Staff Recommendation will, in fact, be placed in managed wetlands; therefore, all fill will occur in managed wetlands. This change is due to a small misunderstanding of where the jurisdiction line is drawn between the Bay and managed wetlands and does not impact the project or its impacts or benefits in any way. As such, staff would like to make small changes to the authorization and findings of the final, approved permit to reflect this distinction.

    In addition, staff recommends a change to Special Condition II.A.3 which as written in the Staff Recommendation requires the permittees to submit a final, site survey prior to tidal breaching. However, staff would like to change this requirement to instead require the survey to be submitted within 60 days of construction completion, which means after all tidal breaching rather than before. This will ensure the final survey reflects the site as fully built out and will serve as a baseline to analyze how the site evolves over time.

    Finally, staff would like to make non-substantive grammatical and typographical changes in several locations in the authorized permit as needed. So again, just a few minor changes to make.

    The primary issues raised by this project are its consistency with the McAteer-Petris Act, the San Francisco Bay Plan, Suisun Marsh Preservation Act and Suisun Marsh Protection Plan, including the policy areas listed here.

    I will now cede the floor to the project applicant to discuss the project in greater detail.

    Department of Water Resources Project Manager Elaine Jeu presented the following: Thank you, Schuyler. The Department of Water Resources, referred hereon as DWR, would like to thank the San Francisco Bay Conservation and Development Commission, or BCDC, and participating public for this opportunity to present the Bradmoor Island and Arnold Slough Tidal Restoration Project.

    DWR is requesting a hearing and vote from the Commission to approve its pending permit for this important restoration project that will directly and indirectly benefit protected fish species, Suisun Marsh, the San Francisco Bay Estuary and people and wildlife that benefit from a healthy functioning Marsh ecosystem.

    Good afternoon. I am Elaine Jeu, environmental scientist and Project Manager with the Department of Water Resources for the Broadmoor Island and Arnold Slough Tidal Restoration Project. DWR is proud to propose this project that has been planned, designed and will be implemented and monitored with our partners at the California Department of Fish and Wildlife, or CDFW.

    As noted in the Staff Summary, the proposed project occurs primarily at two adjacent locations in Suisun Marsh, Bradmoor Island and Arnold Slough property located in the northeast. The properties at both locations were acquired by DWR to meet restoration goals set out in the Suisun Marsh Habitat Management, Preservation and Restoration Plan, also known as the Suisun Marsh Plan or SMP. This location includes a naturally occurring hill with managed wetlands and constructed levees surrounding it.

    Prior to acquisition, both locations were used primarily for waterfowl hunting. Water elevations were managed through interior and exterior levees by manipulating water-control structures throughout the project area. This promoted the growth of plants favorable to waterfowl and winter-flooded habitat to attract birds.

    Staging and access at both project sites would be conducted in upland areas that are already disturbed and were previously developed. All construction access would occur along existing levee roads. At some locations at Bradmoor temporary levee widening and reinforcement would be needed to remove water-control structures.

    Bradmoor Island’s restoration design proposes five breaches at exterior levee locations to hydraulically connect current, managed wetlands to surrounding tidal waters of Nurse Slough, Deverton Slough and Little Honker Bay. On the interior side of the surrounding levees existing borrow ditches occur where material was excavated to create the levees when they were constructed originally.

    Adjacent to the proposed levee breaches a portion of the borrow ditches on either side of each breach would be filled up to the adjacent, Marsh-plain elevations. This is done to enhance tidal function and would create opportunity for sustainable wetlands to establish where ditch blocks are proposed.

    Within the managed wetland area at Bradmoor five interior levees exist to separate the wetlands into managed units. The levees were necessary to manage water levels for duck hunting but are now barriers to tidal flow. To enhance restoration some interior levees would be cut and the adjacent borrow ditches filled to adjacent Marsh plain elevation. This action would connect five separate units to enhance tidal flow within the larger, contiguous, Marsh area.

    To enhance and improve habitat conditions existing debris and old infrastructure would be removed prior to restoration.

    Just southeast of Bradmoor, Arnold Slough restoration site provides a landscape that transitions from upland grasslands that have historically been used for grazing cattle to managed wetlands that are separated from Little Honker Bay, Nurse Slough and Arnold Slough by constructed levees with a water-control structure.

    The restoration design at Arnold Slough site proposes three exterior levee breaches to hydraulically connect the Marsh to the Bay. Four sections of the existing levee would be lowered in elevation by using heavy machinery to move material down and fill the adjacent borrow ditches to Marsh plain elevation.

    This would expedite the creation of new Marsh habitat at these former levee locations. Through this levee grading the project would functionally create sloping ecotones between new tidal waters and wetlands and restored interior that would allow new emergent low and high marsh vegetation to establish where the higher upland levees had been. Similar to Bradmoor Island, existing debris and old infrastructure would be removed from the site.

    Additionally, at the neighboring Blacklock restoration site, a remnant, water-control structure would be removed and the levee would not be backfilled. This would functionally create a new breach at the Blacklock restoration site and enhance hydraulic function at that already tidal location. No other work at Blacklock is proposed for this project.

    Broadmoor Island and Arnold Slough Tidal Restoration Project is a Fish Restoration Program project. The Fish Restoration Program is a cooperative effort between DWR and CDFW to fulfill 8,000 acres of intertidal and associate, subtidal, habitat restoration in the Suisun Marsh, Delta and Yolo Bypass for Delta smelt and Chinook salmon.

    The overall tidal restoration acreage as required by the National Marine Fisheries Service and US Fish and Wildlife Service's biological opinions on the coordinated, long-term operations, the State Water Project and Central Valley Projects. This project would partially contribute to meeting that 8,000-acre, tidal-restoration threshold. The project is also designed to partially fulfill additional restoration requirements for Delta smelt and longfin smelt, as required by the incidental take permit for operation of the State Water Project.

    This project is tiered off of the existing Suisun Marsh Plan, its programmatic Final Environmental Impact Report and Final Environmental Impact Statement or SMP EIR/EIS for managed wetlands, maintenance activities and tidal restoration of Suisun Marsh. A CEQA addendum to the SMP EIR/EIS is was prepared for this project to meet CEQA requirements. The CEQA addendum outlined project consistency with the SMP EIR/EIS and analyzed the specific project impacts consistent with the SMP EIR/EIS.

    The restoration results for this project would contribute to the 5,000 to 7,000 acre restoration target specifically in the area referred to in the SMP as Suisun Marsh Region 3.

    As a project covered under the SMP, the Bradmoor Island and Arnold Slough Tidal Restoration Project has undergone extensive review and input from the Suisun Marsh principal agencies and an Adaptive Management Advisory Team, AMAT, which include the critical agency stakeholders in Suisun Marsh in this slide.

    The project has been presented three times to AMAT on design, planning, public access, impact to special status species and monitoring adaptive management.

    As part of the Fish Restoration Program and Suisun Marsh Plan the goals of the project are to benefit listed fish, benefit special status wildlife, establish self-sustaining sites with design features that anticipate climate change where feasible, and to facilitate habitat monitoring for adaptive management.

    To meet these goals the project developed objectives that guide the design to increase Delta smelt and longfin smelt habitat, enhance habitat for special status wildlife, promote site resiliency through existing natural features and avoid promoting conditions that are in conflict with project objectives such as noxious weeds. These goals and objectives will persevere after restoration is complete to shape monitoring and adaptive management conducted by DWR and CDFW.

    After successful tidal restoration is complete, the state of California will have returned an estimated 616.91 acres of tidal wetlands that were held as managed wetlands to Suisun Marsh.

    In the process, an estimated 1.21 acres of tidal Marsh will be converted to subtidal waters, primarily where channels had been created to allow water to flow through the new levee breaches.

    Finally, the project will create an estimated 9.07 acres of new waters and wetlands at breached locations that have been disturbed upland since levees were created.

    The remaining levees will be allowed to degrade and erode through natural processes over time and return to functioning tidal habitat. These levees were not engineered or constructed to meet levee standards when they were created. They were established by piling native Bay mud and required constant maintenance and settling to keep them functioning. We expect the Bay will reclaim this material as a restored tidal Marsh adapts to a more natural system.

    Ecological uplift is also anticipated from debris removal, habitat creation and enhancement, increased connectivity to tidal Marsh habitat, water-quality benefits such as salinity and dissolved oxygen and natural resources.

    The project is anticipated to have observable and measurable beneficial impact to these environmental characteristics that will be monitored after restoration.

    Native fish species that already use Suisun Marsh and the Bay Estuary are the primary target of proposed restoration and would receive abundant and immediate benefit from new tidal habitat made available.

    Wildlife such as Marsh and migratory birds, rodents, insects, benthic marine invertebrates, special-status plant species would also share in the benefits of the restored tidal Marsh and enhanced Marsh ecosystem.

    To understand these changes and benefits, DWR and CDFW developed a Project- Specific, Draft Adaptive Management and Monitoring Plan based on the framework developed by the Interagency Ecological Program Tidal Wetlands Monitoring Work Team and in coordination with AMAT members. DWR is committed to continue the development of this plan in coordination with BCDC and our partnering wildlife agencies to refine and develop appropriate qualitative and quantifiable thresholds with meaningful responses to meet restoration targets.

    The project team looks forward to BCDC staff input and appreciates this inclusive approach to ensuring that this project moves forward successfully.

    When reviewing potential sea level rise impacts on the proposed project, the project team considered risks to equity, economy, governance, communities, critical infrastructure and coastal habitat.

    The results for the review concluded that there would be low to moderate risk to coastal habitat in the project area. This risk is associated primarily with tidal inundation of Marsh after sea level rise that is currently transition or upland habitat.

    At the project area this risk may propose an equal or greater amount of benefit as the existing levees are expected to erode over time and convert from disturbed, upland habitat to valuable transitional and high Marsh habitat.

    No substantial risk to equity, economy, governance, communities, or critical infrastructure are anticipated at the project site and any risks would likely be negligible in the greater context of sea level rise concerns in the Bay.

    Additionally, the selection of these properties for restoration and project design takes direct advantage of complex elevations present at both sites and high sediment levels present in Little Honker Bay.

    Due to the lateral landscape, sediment and hydraulic features, tidal restoration of the existing managed wetlands is anticipated to have high adaptive capacity. The project would effectively increase tidal exchange and establish new high Marsh habitat which would allow for increased sediment deposition opportunities, which in turn are expected to increase the area's ability to accommodate sea level rise over time.

    As noted previously, any overtopping or erosion of remaining levees would contribute to establishment of high Marsh habitat and would not be perceived as a negative impact to the project.

    To meet BCDC's regulatory requirement for maximum, feasible, public access consistent with the proposed project, DWR is providing on-site amenities that will benefit users of the newly-created, waterway opportunities.

    After tidal restoration is complete, tidal channels of approximately 5,300 feet at Bradmoor and approximately 4,600 feet at Arnold would be open and accessible to small watercraft for hunting, fishing, kayaking, photography and nature study.

    To promote safe navigation and provide users with site context information, three signs will be placed in the project area viewable to waterway users.

    Due to the sensitive habitat that would be created and preserved at the sites, the project restoration goals and public safety concerns, access to the wetland and upland portions of the project area would be discouraged.

    DWR would place appropriate signage informing users of the sensitive habitats around them and notify the access restrictions that are placed to protect these habitats. All waterway signage would be provided to the Commission for review and approval prior to placement.

    DWR believes the new boating opportunity created by the project is strongly supported by community interest in expanding access to Suisun Marsh waterways.

    In addition to the new on-site features and waterway access, DWR would provide in- lieu, compensatory funding to improve nearby facilities at Belden's Landing and to create an online, public-access guide for the greater Suisun Marsh. Belden's landing is within three and a half miles of both project locations, is the nearest waterway facility to the project location, is owned by California Department of Fish and Wildlife and operated and maintained by Solano County Parks and Recreation.

    DWR’s funding would serve to improve this facility that is a popular recreation destination for boating, kayaking, fishing, nature observation and waterway access. To provide greater awareness of the existing facilities in Suisun Marsh to the public, DWR would create a public-access guide that would be available online.

    DWR has presented opportunities for public input on the project throughout conceptual planning and early design phases through participation in various meetings listed in this slide.

    Opportunities for public input include the CEQA Addendum Notice of Determination specifically for this project, Delta Stewardship Council Delta Plan Consistency Determination and Certification, and through direct consultation and coordination with the Yocha Dehe Wintun Nation.

    Additionally, we are here today in front of the public and BCDC Commissioners ready to receive input on our permit that is being considered.

    DWR has obtained necessary approvals, permits and authorizations of state and federal environmental regulators. Approvals from the US Army Corps of Engineers under Nationwide Permit 27 and the Regional Water Quality Control Board have been completed to satisfy federal Clean Water Act requirements.

    The Army Corps was a federal action agency for the project under the National Environmental Policy Act, or NEPA, and completed Endangered Species Act Section 7 consultations with National Marine Fishery Service and the US Fish and Wildlife Service. Both federal wildlife services based their consultations and previously issued biological opinions for the Suisun Marsh Plan. The Corps completed a consultation pursuant to Section 106 of the National Historic Preservation Act in consultation with local tribal entities in the project area.

    The project expects to receive a lake and stream bed alteration agreement pursuant to Section 1602 of the California Fish and Game Code from CDFW within the next month. DWR will also pursue a California Fish and Game Code Section 2081 Incidental Take Permit prior to tidal restoration dredge and fill actions that would impact the state listed plant, Mason’s lilaeopsis. No impacts to the state listed plant species are anticipated in the first year of work and that coverage will be obtained when required in 2022.

    Additionally, DWR has completed coordination processes with state organizations that are not regulatory agencies but do have requirements that affect the project's approval. DWR submitted its written certification to the Delta Stewardship Council that proposed covered action is consistent with a Delta Plan and its performance measures.

    The State Lands Commission and DWR have an existing memorandum of understanding that was updated in July of 2019 to include Broadmoor Island and Arnold Slough. The schedule provided here summarizes the date approvals were received or expected.

    In closing, I would again like to thank our project partner agencies, including the Suisun Marsh principal agencies, the AMAT agencies and staff participants, our consultant support team at AECOM and each of the Commissioners for their time and support in helping achieve our common goal of enhancing the Suisun Marsh and San Francisco Bay by promoting restoration of a healthy functioning tidal ecosystem.

    I believe that future generations will benefit for many years to come from the action that you consider for approval today. Should anyone receiving this presentation or is present at the hearing today have any questions please feel free to email me at elaine.jeu@water.ca.gov. Thank you for your time and consideration of our projects.

    Chair Wasserman stated: Thank you for the presentation. I will now open the public hearing. Any member of the public who would like to speak on this item should do so now and you will have three minutes. Peggy, do we have anybody?

    Ms. Atwell replied: I do not have any hands raised, Chair.

    Chair Wasserman continued: With that I will take a motion and a second to close the public hearing.

    MOTION: Commissioner Nelson moved to close the public hearing, seconded by Commissioner Wagenknecht. The motion carried by a voice vote with no abstentions or objections.

    Chair Wasserman asked: Any questions from Commissioners?

    Commissioner Nelson inquired: A question for Elaine Jeu. Your presentation and the staff presentation talk about two benefits of the project for the listed fish species, Delta smelt and longfin smelt; they talk about habitat restoration and primary production. I am just hoping you can walk us through that.

    There has been a debate in the last several years about the extent to which tidal Marsh restoration would provide direct habitat for longfin and Delta smelt but maybe I haven't kept up with that debate. So particularly given that this site is pretty far up the sloughs, it is not right on the edge of Suisun Bay, it is pretty far up the sloughs, can you help us understand the work that is being done just to make sure that this restoration site is going to provide the habitat benefit that we all want it to provide for the target listed species?

    Ms. Jeu replied: UC Davis has a monthly, fish-sampling effort throughout Suisun Marsh that has been happening since 1970 or 1980, I believe, so there is a really big data set with that.

    There has been catch of these listed species, the Delta smelt and longfin smelt, near the areas within the adjacent sloughs to the project site so we do believe that it will provide that habitat.

    The Nurse Slough, Deverton Slough complex is a well-known native-fish nursery so we expect to see other benefits as well. I am sorry, could you repeat the second part of your question?

    Commissioner Nelson stated: It was just to help; you are on the right track. Just to distinguish between the direct habitat benefits and the indirect productivity benefits that would help species elsewhere, so you are on the right track.

    Commissioner Eisen chimed in: Thank you. It sounds like an amazing project. I have spent some time up in the Grizzly Island area birding and access is a real chore up there. It is very hard to do anything other than to pull your car off to the side of the road. There is not much hiking, there are not very many platforms, there are no boardwalks. So I am interested in whether any of those types of public access were considered and just rejected as impossible for whatever reasons. I am also interested in your statement about the enhanced habitat for special status species. I saw quickly next to the very cute baby a picture of a very cute Ridgway rail but I assume that there are other special status species that are going to benefit from this, so I have those two questions about public access and about the special status species.

    Ms. Jeu explained: For the public access we did consider having more direct access to areas. Unfortunately, because of special status concerns and the fact that this is a mitigation project we have to be very careful about making sure we don't include additional impacts for this project as we do need these acres for Delta smelt and longfin smelt for the State Water Project and Central Valley Water Project.

    As far as special status species present, salt marsh harvest mice are present on this site.

    While this is a little bit out of the region that we found Ridgway’s rail in Suisun Marsh we do have black rail present as well as other migratory birds. We have northern harrier. We have Virginia rails as well so this is a very important habitat to all of these tidal species. Does that answer both of your questions?

    Commissioner Eisen replied: Yes, thank you so much.

    Chair Wasserman asked: Any other questions from the Commissioners? Ms. Atwell stated: No hands raised.

    Chair Wasserman continued: With that I would ask Schuyler to present the Staff Recommendation.

    Mr. Olsson read the following into the record: Staff recommends approval of the Bradmoor Island and Arnold Slough Tidal Restoration Project, BCDC Permit Application Number 2020.005.00md, with the conditions described in the Staff Recommendation and summarized on this slide which include to:

    • Allow small watercraft to navigate the new tidal channels created through the project;
    • Implement in-lieu, public-access requirements;
    • Monitor and adaptively manage the restoration site; and
    • Implement measures to protect natural resources and water quality during construction.

    As conditioned, staff believes the project is consistent with the requirements of the McAteer-Petris Act, the San Francisco Bay Plan, the Suisun Marsh Preservation Act and the Suisun Marsh Protection Plan.

    Mr. Goldbeck added: And I just add for the record that the Staff Recommendation also includes the items on the errata sheet that Schuyler walked you through a little bit earlier.

    Chair Wasserman acknowledged: Thank you.

    I would ask the Applicant’s representative whether you have reviewed the Staff Recommendation and agree with it?

    Ms. McCalvin responded: I am Catherine McCalvin and I represent the Department of Water Resources Program under which this project falls and I am representing Ted Craddock, our Deputy Director for the State Water Project, and yes, we do accept the conditions of the permit.

    Chair Wasserman continued: Thank you very much and thank you for a very good project. I know there was some work with staff to ensure that there was reasonable public access, and I thank the Department for its efforts.

    I would now, assuming there are no other comments or questions from the Commission, entertain a motion and second to approve the Staff Recommendation.

    Commissioner Vasquez chimed in: This is John Vasquez, I will move the item. Mr. Goldbeck interjected: I think Commissioner Gunther has a question.

    Commissioner Gunther inquired: Yes, a very quick question. In the Staff Recommendation one of the conditions is that the project is going to be adaptively managed. Schuyler, I was wondering, do we have a definition of that? What do we mean when we say that? That actually, from my professional practice, encompasses a lot of possibilities. And I just wondered if we had anything targeted or whether we are in essence referring to the work that was referred to by Ms. Jeu when they are counting on the interagency program that has a certain, I assume, standard or definitions themselves for that?

    Mr. Olsson answered: Thank you for the question, Dr. Gunther. As part of the application the Applicant, Department of Water Resources, did submit an Adaptive Management and Monitoring Program. That program was reviewed and approved by various regulatory agencies. I believe it was actually drafted by the Department of Fish and Wildlife but it was approved by, for example, the Water Board and National Marine Fisheries Service.

    We processed this project on a relatively tight time scale and we ultimately determined that the Adaptive Management and Monitoring Program, while it was a good start, we actually determined that there are a couple of things in there that the performance criteria aren't clearly defined enough with specific targets and metrics.

    And so what we agreed with the Department of Water Resources is that we would accept their Adaptive Management and Monitoring Program as a draft program, which we have done on several permits in the past, and so there is a condition in the permit that basically states that within six months of issuance of the permit, which if approved would happen shortly, that they would work with us on a finalized Adaptive Management Program.

    But basically the outlines of it are already there and so basically it is a 10-year, monitoring program. They are going to be monitoring all sorts of variables at the site related to habitat and water quality and sedimentation and geomorphology, all those factors.

    And then based on that every year they are going to do their monitoring report and they are going to look at and identify specific actions that then may need to be taken, adaptive management actions that may need to be taken in order to make sure that the project is on track to meet its goals.

    Commissioner Gunther acknowledged: Great. Great. What I am hearing from you is that what we mean when our recommendation says adaptively managed is pursuant to the written plan that has been submitted to us and may be amended in the future.

    Mr. Olsson concurred: Exactly.

    Commissioner Gunther continued: That is what I was trying to get at. There is actually a very specific plan to adaptively manage referred to in your recommendation.

    Mr. Olsson agreed: Yes.

    Commissioner Gunther stated: That is all I was wondering about, thank you.

    Mr. Olsson clarified: And to be clear, that plan, we took it as a draft, and they are required to submit and get approval for a final plan within six months of issuance of the permit. That is something that has happened on many permits in the past.

    Chair Wasserman asked: All right, any other questions? (No further questions were voiced)

    We have a motion; I don't think we got a second.

    Commissioner Gunther will second, thank you. Question clearly sufficiently answered.

    If there are no comments, Peggy, will you take the roll?

    Mr. Goldbeck noted: Commissioner Showalter has her hand up, I am not sure if that's intended or not?

    Commissioner Showalter acknowledged: Yes, I just wanted to make some comments.

    First of all, I would really like to congratulate the people who have worked on this project. Having been involved in the South Bay Salt Ponds I know how long you have been working on this and how much work is involved, so congratulations to all of you.

    All the things that are said are undoubtedly true but I think most generally this is going to improve the biodiversity of this area. We all know that that's just an incredibly important driver for restoration is increasing biodiversity; so that's what these projects really do and that's great.

    I also would like to just echo what Dr. Gunther said about adaptive management. It is very important that they have a plan and that they follow it and that as needed they adapt it. So anyway, congratulations, I will be very pleased to support this.

    Chair Wasserman acknowledged: Thank you.

    Any other comments? (No further comments were voiced) Now, Peggy, please call the roll.

    MOTION: Commissioner Vasquez moved approval of the staff recommendation, seconded by Commissioner Gunther.

    VOTE: The motion carried with a vote of 22-0-0 with Commissioners Addiego, Ahn, Burt, Butt, Eisen, Gioia, Gorin, Gunther, Lucchesi, Moulton-Peters, Pine, Randolph, Showalter, Wagenknecht, Gilmore, Scharff, Stefani, Nelson, Vasquez, Hillmer, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO” votes, and no “ABSTAIN” votes.

    Chair Wasserman stated: Unanimous approval again. Thank you for a very good project.

    Ms. Jeu replied: Thank you so much for your support, we really appreciate it. Chair Wasserman acknowledged: Go forth and do well.

  9. Briefing, Public Hearing and Possible Vote to Commence the Rulemaking Process on Proposed Amendments to the Commission’s Regulations. Chair Wasserman stated: Item 9 is a briefing and possible vote to commence the rulemaking process on proposed amendments to the Commission's regulations. Chief Counsel Marc Zeppetello will provide the staff presentation.

    Chief Counsel Zeppetello addressed the Commission: On March 19th you were mailed a staff report on proposed amendments to the Commission's regulations for implementing the California Environmental Quality Act together with a set of proposed amendments. This is the third and final set of proposed amendments to the Commission's regulations that we will be bringing to you over this past six months and in the coming months.

    Today I will summarize the key aspects of the proposed amendments and it will be an opportunity for comments by the public or the Commission or for suggestions. After today, we will take those comments back and prepare the remaining documents to start the rulemaking process, as we have done with the other two sets of proposed amendments. This will come back to you at a public hearing during the public comment period on the proposal and then back to a vote sometime in the future.

    A few preliminary points before I get into the proposed amendments. I will assume that as public officials and as citizens of the State of California, everyone is generally familiar with the California Environmental Quality Act or CEQA. In brief, it is the law that was enacted in 1970 that requires public agencies to analyze the potential environmental impacts of projects

    that they propose to carry out or to permit. In the case of the Commission, that would be the issuance of permits or the adoption of plans. CEQA also requires the evaluation of alternatives that might reduce or avoid significant effects and of mitigation measures.

    One of the central concepts in CEQA, which again, I will assume you are generally familiar with, is the distinction between a lead agency and a responsible agency. A lead agency is the agency with primary jurisdiction or authority over a project and is the agency that prepares the CEQA environmental document; whereas a responsible agency is an agency that has some authority or approval discretion over a project but does not prepare the CEQA document and instead relies on the document prepared by the lead agency.

    In BCDC’s case, on the permitting side, BCDC is almost always a responsible agency.

    That is because of the provision in the McAteer-Petris Act that requires, for our permit application to be complete, that an applicant has already obtained local discretionary approval. Therefore, it is usually the city or county that is the CEQA lead agency on a permitting matter and BCDC is the responsible agency.

    However, with that said, at the moment, BCDC is the lead agency on a permitting matter. We are in the process of preparing an environmental assessment for a project, and that is the Cargill operation and maintenance permit for their salt ponds in the South Bay. Based on documents in our files and the memory of current staff, the last time that BCDC was the lead agency on a permitting matter was the last time the Cargill permit was adopted approximately 20 years ago. So, it is rare, but it happens.

    On the planning side, BCDC can be either the lead or a responsible agency. On Bay Plan amendments or currently the Seaport Plan, BCDC is the lead agency under CEQA. But in other contexts, BCDC is the responsible agency. The example that comes to mind is when Solano County or one of the local jurisdictions in Solano County prepares an amendment to the local protection program for the Suisun Marsh. In those cases, the local jurisdiction will be the lead agency and BCDC is the responsible agency.

    The final introductory point that I will mention, and that is discussed in the staff report, is that BCDC’s permitting and planning programs under the McAteer-Petris Act and the Marsh Act have been certified by the Secretary of the Resources Agency as certified regulatory programs under CEQA, under Public Resources Code section 21080.5, which means that BCDC, when it is acting as the lead agency, is exempt from the requirement to prepare initial studies, negative declarations or environmental impact reports.

    The certified regulatory program provision in CEQA allows for regulatory programs, where the central purpose of the program is environmental protection and where the program has procedural requirements that provide for public participation and fulfills other statutory requirements, to be certified and, therefore, exempt from various requirements of CEQA. However, the basic requirements to analyze impacts and mitigate or consider alternatives still apply. In BCDC’s case, even though there is no requirement to prepare an EIR or a negative declaration, there is a requirement to prepare a substitute document which is called an environmental assessment.

    The first regulation that I wanted to put up, and there are no changes proposed to this regulation — but for the context, this is in the chapter or the subpart of the regulations on BCDC as a lead agency — this regulation outlines the contents of an environmental assessment. As you can see, it is very similar conceptually to the contents of either a negative declaration or an EIR. In addition to a project description, the contents include an analysis of environmental impacts and the consideration of mitigation measures and alternatives.

    One of the requirements of CEQA and the certified regulatory programs is consultation with other agencies that have jurisdiction or expertise. BCDC’s existing permitting and planning regulations have requirements that implement consultation. What we are proposing here is a new regulation within the CEQA chapter of BCDC’s regulations that expressly acknowledges the requirement to consult with other agencies and then cross references the existing regulations that deal with consultation.

    Subpart (b) of this new regulation is when BCDC is considering a permit application and it refers to the regulations where the environmental assessment is distributed as part of an application summary to various agencies as well as to counties, cities, or other responsible agencies identified by the Executive Director.

    Subpart (c) is when BCDC is considering a plan amendment or a plan document and cross references the planning regulations for distribution of the environmental assessment as part of a staff planning recommendation on a plan document. So, this is essentially restating existing requirements.

    The next regulation would be a new regulation that articulates requirements for providing a notice of availability of an environmental assessment. The new subpart (a) would be in the context of preparing an environmental assessment in connection with a permit application and require the Executive Director to post the notice of availability on the website and to provide certain information. Subpart (a)(2) would be to prepare written responses to significant issues; basically, a response to comments document, and to make that document available at least ten days prior to a hearing.

    Under the current regulations, the permitting regulations, there is a requirement for the Executive to prepare a response to comments, but it simply is to be presented at the hearing at which the Commission acts on the permit application. Here, we would be building in a requirement that this be done in advance and allow the public and any interested agencies an opportunity to review the response to comments before the Commission acts on a matter.

    This is subpart (b) of the same regulation; I just broke it up into two slides. Subpart (b) would be a notice of availability and public comments and a response to comments when BCDC is doing an environmental assessment in connection with a Bay Plan amendment or other plan document. The existing planning regulations already have these requirements for distributing the environmental assessment and for preparing a response to comments that would be presented in the final staff planning recommendation. So, in this case it is, again, a restatement of existing requirements, but within the CEQA chapter of the regulations.

    The next is another new proposed regulation that would make express the requirement that the Commission consider and approve an environmental assessment. Under the existing regulations, it is required that the Executive Director prepare an environmental assessment, but there is no explicit requirement that the Commission approve or adopt it. We would add that and then specify in subpart (b) the contents of a final environmental assessment.

    Subpart (b)(1) refers to the materials described in 11520 or 11521; 11520 is a reference to using a federal environmental impact statement if applicable and available. That section is referenced here as well as 11521, which is the environmental assessment regulation we discussed earlier. So, the final environmental assessment would consist of that document, the response to comments, the Commission's resolution of approval, and any other documents the Commission may designate.

    Subpart (c) says that if the environmental assessment identifies significant effects, then the Commission shall make the findings required by CEQA. This tracks one of the proposed amendments to the permitting regulations which are currently under review as well. The reference to these code sections and the CEQA guidelines provision are to the findings as to whether the Commission has required changes to a project to reduce or eliminate significant effects, alternatives, or mitigation measures, or possibly a statement of overriding consideration.

    Subpart (d) addresses something that was added to CEQA, I believe it has been almost 20 years, but it is a requirement that if a lead agency makes changes, or a responsible agency makes changes, to a project in the form of mitigation measures, that there be a mitigation monitoring program to track those changes and designate who is responsible for implementing the mitigation measures. We would add that to the CEQA requirements for the Commission here.

    Moving on, one of the requirements of a certified regulatory program, and again, it is in the existing permitting and planning regulations, is that BCDC provide notice to the Resources Agency when it either issues a permit for which has been a lead agency or adopts a plan. This regulation would cross reference those existing regulations so that, particularly for the benefit of staff and BCDC counsel, it is all in one place, these requirements.

    The next topic is a few regulations about retaining a consultant that may be necessary to assist the Commission. The existing regulation provides for the Executive Director to obtain bids from three consultants and then the Executive Director selects the consultant and enters into an agreement for preparation of an environmental assessment.

    But the existing regulation has a few problems, in my view. One is that it discusses entering into an agreement, but it is vague on who the agreement is supposed to be with, or may be with, whether it is with the consultant or the applicant. The other problem with this regulation, is that it calls for an estimate of the maximum fees and costs and then envisions that the environmental assessment has to be prepared based on that estimate and will not exceed those costs. But as experience has shown, it is very difficult these days to predict upfront what the costs will be because circumstances may change based on public comments or agency comments.

    The two basic changes in this regulation are to specify in part (b), the Executive Director may choose from a few different arrangements to retain a consultant. This is based on CEQA and the CEQA guidelines which allow for a number of methods. The Executive Director can either enter into an agreement with a consultant directly, execute a memorandum of understanding with the applicant, or allow the applicant to retain and select the consultant.

    That is one change.

    The second is, as shown in part (c), that notwithstanding the estimate, the applicant shall be responsible for the payment of all costs the consultant may incur. On the Cargill matter that I referred to earlier, we have done a memorandum of understanding with Cargill. On the Howard Terminal matter for the Oakland A's and the port priority use issue at Howard Terminal, we have a contract with the A's and that contract allows them to retain the consultant but specifies that BCDC will manage and provide direction to the consultant. These amendments will allow for various options in that regard.

    This next slide is a further continuation of this regulation and simply provides that where the Executive Director does enter into an agreement with a consultant, the applicant shall deposit the estimated amount of fees and costs; the Executive Director will pay the consultant in accordance with a mutually-agreed-upon schedule. And, after completion of the assessment, any excess funds will be refunded to the applicant, but if the fees and costs exceed that amount, the applicant is still responsible and will be billed monthly.

    These next two are amendments to existing regulations. One, 11532, repeats that the applicant is responsible for all fees and costs.

    And 11533, there is an amendment added to emphasize what is already there, which is that before using an environmental assessment prepared by a consultant, the Commission is responsible for exercising its independent judgment, and ultimately the Commission has final discretion on the contents and responsibility for the contents of an environmental assessment.

    There are two more topics before I’m done. In the existing regulations there is a provision for what is referred to as a basic fee to reimburse the Commission for its costs, and then in 11541, a preparation fee. I have been confused about what these fees are supposed to represent or compensate for. One of these fees is incurred in all cases and the other when there is a consultant retained. But the fees are nominal and arbitrary and would not begin to reimburse the Commission for the reasonable costs of staff time, so the proposal here, and it is consistent with CEQA, is to make it clear that when the Commission is acting as the lead agency, it is entitled to recover costs for the staff time incurred in preparing or reviewing an applicant's or a consultant’s environmental assessment. And it provides in part (b) that the Executive Director will bill monthly for those costs.

    One of the other things I wanted to mention on this is that is the existing regulations, which have these nominal fees, are somewhat inconsistent with the existing planning regulations which allow, when an applicant is applying for a Bay Plan amendment, the existing regulations allow the Commission to recover staff costs, including the cost of preparing an environmental assessment. As an example, on the Howard Terminal environmental assessment, it is already built into the contract that the Commission is entitled to recover costs for staff time incurred for the environmental assessment. So, there is an inconsistency between these existing regulations and that would be addressed by these amendments which would make it clear that the Commission is entitled to recover staff costs.

    The final regulation and set of amendments relate to a regulation for when the Commission is acting as a responsible agency rather than as the lead agency. We propose to make a number of changes here.

    First, in (a)(1), the amendment would acknowledge that the Commission has an obligation as a responsible agency to respond to a request for consultation by the lead agency. Minor amendments in part (a)(2) about reviewing any environmental document including initial studies, environmental assessments, or negative declarations.

    We propose to delete what is currently subsection (2), which requires, when the Commission is a responsible agency, the applicant to prepare a single-spaced, typewritten summary of the environmental document prepared by the lead agency. That seems unnecessary and overly burdensome, both to require that of the applicant and to require staff to take the applicant’s word for it, when the staff is perfectly capable of reviewing the environmental document and summarizing it for the Commission or for the staff report.

    In subpart (3), the existing regulation requires that, as part of the submission to the Commission, the certified EIR should be included if it is less than ten pages long. This must have been written close to 1970 when CEQA was enacted, because as we all know, there hasn't been an EIR in fewer than ten pages probably since that time. So, this regulation as currently written is not practical. On the other hand, we did not feel it was practical to say that the entire environmental document should be provided to the Commission, and that is unnecessary under CEQA. The proposed revisions would require the Executive Director to consider the environmental document prepared by the lead agency and to summarize it as appropriate and necessary with respect to the Commission's areas of statutory responsibility in the staff summary for a permitting matter or in the staff planning report on a planning matter.

    My final slide is a continuation of this same regulation for when the Commission is the responsible agency, and we propose to add subsections (c) and (d). These track the changes discussed earlier for when the Commission is a lead agency, and would require, in part (c), that if the lead agency’s document identified significant effects, the Commission would make findings with respect to changes that have been required by the Commission or mitigation or alternatives; that the Commission make the appropriate findings as required by CEQA.

    In Subpart (d), if there are mitigation measures required to mitigate effects and the Commission requires mitigation, there would be a monitoring program, if those measures are required by the Commission for activities within the scope of the Commission's jurisdiction.

    That completes my presentation. I would be happy to answer any questions now or after the public hearing. Thank you.

    Chair Wasserman announced: I will open the public hearing. If any member of the public wishes to address these proposed changes now is your opportunity. Please raise your hand as previously instructed.

    Ms. Atwell informed the Chair: No hands raised, Chair.

    Chair Wasserman continued: Then I would ask for a motion to close and a second to close the public hearing.

    MOTION: Commissioner Showalter moved to close the public hearing, seconded by Commissioner Nelson. The motion carried by a voice vote with no abstentions or objections.

    Commissioner Showalter inquired: I have a question about the summary, the discussion of the summary or a summarization of the environmental assessment. It seems like the majority of these documents come with an executive summary. I presume there is not any statutory requirement that an executive summary be prepared, but it would seem like a lot of times that would fit the bill for what you, what we, need. I wondered, what is the state of that?

    Mr. Zeppetello replied: Thanks, Commissioner Showalter. I believe you are correct, that there is not a requirement. I did think about that, and now that you have raised it, I could go back and look at that language and perhaps we could add a phrase that an executive summary, if available, could be something that would be provided to the Commission. That could be helpful, and if it is something that is a relatively short number of pages, it could give the Commission a good overview of the issues. That is something that we could consider adding to that provision, if there is an executive summary or introduction section of an EIR, that that could be provided.

    Commissioner Showalter added: Some of them are better than others, of course, but it does seem to be standard operating procedure now. Thank you.

    Chair Wasserman recognized Commissioner Butt.

    Commissioner Butt spoke: One thing that caught my attention was one of the options for contracting with a consultant to prepare the CEQA documents. I think one of the options said that at the Executive Director’s discretion, the applicant could pay the consultant directly or could contract with the consultant directly. Did I see that? Did I read that correctly?

    Chair Wasserman replied: You did. Mr. Zeppetello concurred: Yes.

    Commissioner Butt communicated his concerns: I am concerned about that. I think it is really valuable to have an arm's length relationship between the applicant and the EIR consultant. In my City we would never think of doing anything like that. The applicant pays for it; the agency contracts for it; the agency writes the check to the consultant. My suggestion would be that you just don't want to go there. It opens it up, it opens BCDC up for accusations that the applicant is paying the EIR consultant and therefore they are beholden to them, and so on and so forth.

    Mr. Zeppetello acknowledged: I hear what you are saying, Commissioner Butt, and certainly we could consider that. I would say a couple of things in response, though. CEQA does expressly allow that; in other words, that the lead agency can take a draft or a proposed environmental document and then review it and exercise its own judgment. The other concern, or not a concern but one of the issues that led us to consider this option in doing the current environmental assessments, is that an issue we have to deal with as a state agency is that in order to enter into a contract directly with a consultant we have to get approval from the Department of General Services, which typically requires the low-cost bid unless you justify a reason to not have the low-cost bid; and then there is also the time delay and the bureaucracy of DGS review.

    So, we felt, at least on the Oakland A's and the Cargill matter, where we have in our contract with the applicant, or the memorandum of understanding for Cargill, we have built into the contract language that there will be no direct communications between the applicant and the consultant without BCDC being part of the communication and that it is clear in the contract that BCDC is managing the consultant; those provisions provide protections for the concern that you are expressing. You raise a legitimate point. I am just giving you the other side of it, or some of the factors that weigh the other way in terms of the contracting issues with the state.

    Commissioner Butt asked: Did I hear you say that DGS, that they require you to take the low bid?

    Mr. Zeppetello answered: That is my understanding. I don't know if Peggy can comment on this. There may be ways around that if you can make a justification, but my understanding is, the default is that you have to take the low bid.

    Ms. Atwell agreed: You are right, Marc.

    Commissioner Butt stated: I am not going to argue with you about that, but I do question it. Typically, with construction contracts you always have to take the lowest responsive bidder; but for professional services, typically that is not a requirement. You select the best-qualified bidder and then you negotiate a contract with them. So, I understand the protections you are building into this, but I have been through this a lot of times. Even when the City is contracting or other agencies contract with CEQA consultants, we get accused by people who are opposed to the project. We get accused of being part of a payoff and a cozy relationship, and that kind of thing. I think from a policy standpoint that we as Commissioners, we just don't want to put ourselves in that position.

    Chair Wasserman chimed in: I might suggest, if I may, that the sensible concern that Commissioner Butt raises might be addressed by modifying the alternative of allowing the applicant to contract directly with a consultant. To put in there some reference to that the contract would provide that BCDC controls the consultant and communications between the consultant and the applicant. I have seen contracts like that in local jurisdictions where the contract is between the consultant and the applicant, but the jurisdiction still retains full control.

    Commissioner Butt added: I will add one thing and then shut up. When you have an applicant writing a check to a consultant, that just doesn't look good, you know. It doesn't matter how much intervention or control you have on it. At the end of the day, the applicant is writing the check to the consultant and people look askance at it. My recommendation would be just don’t go there; that's where I'm coming from.

    Commissioner Eisen commented: Thank you, Marc, for another excellent presentation of very complex regulations, which made them pretty clear. These amendments are a good idea. It looks to me like we are really increasing the transparency to others of our processes and clearing up some confusing things.

    But one thing I wanted to understand. I think what you were saying, but I just want to be clear, is that these amendments are not adding to the obligations of BCDC or the Commissioners. They are clarifying them, making them more transparent, but the obligations that we have vis-à-vis this issue are already set forth somewhere in some regulation or law and that this is a reiteration or clarification or a making transparent of those, but not adding to them. Is that a fair read of what you were saying?

    Mr. Zeppetello replied: Yes, that is essentially right. Most of these changes are already in the regulations. Some are in CEQA or the CEQA guidelines and we are making them express as part of BCDC’s regulations, but they already apply as a matter of law. So, putting them in one place and making them clear would be primarily helpful to the staff. In dealing with these issues, that we make sure that we have done all the procedural things we need to do.

    Commissioner Eisen acknowledged: Thank you.

    Chair Wasserman asked: Any other comments from Commissioners? (No further comments were voiced.) I have a very minor one, Marc. In a couple of the sections on the cost of the consultant, the word “maximum” is still in there and I am not sure that should be there because I think it is referring to the fixed fee, but I could be wrong. Just look at that, please.

    Mr. Zeppetello acknowledged: I will look at that, sure. Thank you.

    Chair Wasserman continued: If there are no other comments, Marc, will you present the staff recommendation?

    Mr. Zeppetello presented the following: Yes, thank you. The staff recommends that the Commission authorize staff to initiate the rulemaking process under the Administrative Procedure Act to adopt the proposed amendments to the Commission's regulations for implementing CEQA as discussed today.

    Chair Wasserman announced: I would now entertain a motion to approve that recommendation and a second.

    MOTION: Commissioner Wagenknecht moved approval of the staff recommendation, seconded by Commissioner Showalter.

    VOTE: The motion carried with a vote of 22-0-1 with Commissioners Addiego, Ahn, Burt, Eisen, Gioia, Gorin, Gunther, Lucchesi, Moulton-Peters, Pine, Randolph, Showalter, Wagenknecht, Ziegler, Gilmore, Scharff, Stefani, Nelson, Vasquez, Hillmer, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO” votes, and Commissioner Beach voting “ABSTAIN”.

    Chair Wasserman stated: The motion passes. Thank you for the good work, Marc.

  10. Adjournment. Upon motion by Commissioner Nelson, seconded by Commissioner Vasquez, the Commission meeting was adjourned at 2:51 p.m.