Approved Minutes of March 24, 2021 Enforcement Committee Meeting

  1. Call to Order. The meeting, held remotely via Zoom, was called to order by Chair Scharff at 9:34 A.M.

  2. Roll Call. Present were Chair Scharff and Commissioners Gilmore, Vasquez, and Wagenknecht.

    Staff in attendance included Executive Director, Larry Goldzband; Regulatory Director, Brad McCrea; Staff Counsel, Karen Donovan; Legal Secretary, Margie Malan; Enforcement Analyst, John Creech; Principal Enforcement Analyst, Adrienne Klein, and Enforcement Policy Manager, Priscilla Njuguna. Shari Posner, Deputy Attorney General, was also in attendance.

  3. Public Comment. There were no general public comments.

    Approval of Minutes. Commissioner Gilmore moved to approve the draft minutes from the March 11, 2021, Commissioner Vasquez seconded the motion. The motion carried unanimously with a roll call vote of 4-0-0 with Commissioners Gilmore, Vasquez, Wagenknecht, and Chair Scharff voting “YES”, no “NO” votes, and no “ABSTAIN” votes.

  4. Enforcement Report. Ms. Njuguna provided an update on case resolution in 2021 noting staff have opened 32 cases and closed 51 cases. Of the latter, 14 had no violation; 10 were duplicate reports of existing cases; two were resolved by through local and/or government agencies; 18 had documentation that helped in their resolution; and 2 minimal impact cases were also closed. The total caseload as of March 22, 2021 was 191, a decrease of 20 cases from the caseload on December 31, 2020.

    Ms. Njuguna stated that staff continues to refine case review and management procedures to ensure their effectiveness in meeting enforcement goals (deterrence, consistency, fairness, and transparency). She noted that BCDC is in ongoing communication with the City of Oakland regarding the efforts to maintain Union Point Park free of encampments and has received photographs documenting ongoing maintenance from the City and from local residents.

  5. Case Update. Ms. Njuguna informed the Committee of three settlements and one standardized fine recovery. The first settlement was for $132,279 from Lind Tug and Barge Inc., to address oyster shell mining without a permit from 2012 to 2020. The second settlement was for $2,000 from Chevron for deviating from their dredging operation plan. The third settlement was for $1,000 from Mare Island Dry Dock for disposing of dredged material at a different location from the authorized location. The standardized fine recovered was for maintenance of a public access area at a hotel in Burlingame. He was advised that a permit was not yet in place but a $1500 per violation was written into the settlement to deter future unauthorized oyster shell mining. Commissioner Wagenkecht expressed concerns about the settlements being considered a cost of doing business. Commissioner Gilmore also asked about the sufficiency of the deterrent effect of the agreed amount given the duration of the violation. Similarly, Commissioner Scharff asked about the recovery amount given the years that the violation persisted and expressed concern about respondents obtaining a financial benefit and thinking of settlements as a cost of doing business. Ms. Njuguna informed the Commissioners that the settlement was a compromise and reflected steps taken by the respondent to mitigate the impact of oyster shell mining using fish screens and using updated equipment so that the number of days oyster shell mining was occurring per year decreased. In addition, Ms. Donovan then explained that staff used the Administrative Civil Penalty Policy to determine the settlement amount noting that the regulation specified that the lowest sum for penalties is $2,000 a day with an upper limit of $30,000. Commissioner Gilmore asked about the processing of other permit applications when a permit applicant is out of compliance on another permit and BCDC’s process of handling those instances. Ms. Donovan responded that BCDC cannot refuse to process the other permit application. Ms. Njuguna stated that permit analysts typically check the database to determine if there are pending enforcement matters so that they can potentially be resolved while the parties are working with BCDC on other matters. Mr. McCrea noted that a pending enforcement action cannot be the basis for delaying an unrelated permit application for the same permittee. Commissioner Vasquez asked about the recovery for oyster shell mining and whether a permit was now in place considering that Lind Marine uses a similar permit process to obtain permits for sand mining. He found it difficult to understand why a business that already constantly uses a business process model for permit applications chose not to obtain an oyster shell mining permit. Ms. Donovan responded that the respondent could have applied given the respondent was informed the permit had expired a year after it expired. Chair Scharff noted the importance of escalating cases so that they get resolved sooner given the challenges presented by the old cases enforcement is looking to resolve. Mr. McCrea stated that there are no longer extended delays in presenting matters to the Enforcement Committee and the Commission so as to reduce the amount of time it takes to get cases resolved.

  6. Richardson Bay Transition Plan Implementation Update from the Richardson’s Bay Regional Agency. Ms. Klein provided a brief summary of the previous presentations that led to the implementation of the RBRA’s transition plan to enable compliance with the Richardson Bay Special Area Plan.

    Curtis Havel, the RBRA Administrator provided a summary of the progress in vessel removal noting that there are 99 vessels on the anchorage, there is ongoing work with the Downtown Streets team and two new housing caseworkers have been made available in Marin County to help obtain upland housing for people living on the anchorage. He also noted that a resident of the anchorage recently died who was close to obtaining alternate upland housing. He concluded his presentation by mentioning the ongoing work on the development of an eelgrass management plan with the RBRA working with a consultant. He invited the Commissioners to attend the April 8 RBRA meeting to learn more about the eelgrass management plan.

    Areas for Discussion

    Chair Scharff asked for clarification about the 5-year deadline for the removal on the anchorage and if the RBRA was still enforcing the 72-hour limit. Mr. Havel confirmed that the RBRA has been enforcing the 72-hour limit with the assistant of law enforcement and informing new arrivals of the applicable ordinances and regulations. He informed the Commissioners that the RBRA has been in ongoing conversations with BCDC staff to reach a resolution while RBRA continues to implement their transition plan. Chair Scharff noted and Commissioners Vasquez and Gilmore reiterated the need for milestones and a timeline for the vessels to be transitioned off the anchorage to clarify BCDC’s expectations to the RBRA board. Mr. Havel stated that the RBRA’s transition plan documents the process the RBRA will undertake to decrease the vessels on the anchorage to zero. Commissioner Wagenknecht asked the RBRA to continue their positive work towards the goal of getting vessels off the anchorage. Commissioner Gilmore also acknowledged the work and efforts by the RBRA to reduce the vessels on the anchorage.

    Public Comment

    Brock de Lappe, Harbormaster for the Alameda Marina, asked the Commissioners to consider whether the vessels leaving RBRA waters would end up which could potentially include Oakland Estuary where a previous 2013 cleanup that Ms. Klein was part of when anchor-out vessels were being addressed. He noted the deficiency of funds to abate vessels that are near the end of their useful life and noted that there is no equivalent to a vehicle impound yard for dilapidated vessels and monies that are available from the division and boating and waterways for dealing with abandoned vessels are insufficient. He asked if BCDC could solicit funds from the state legislature to get the issue addressed. He noted that there need to be recycling facilities in both northern and southern California that they can deal with this ongoing and growing influx of what he described as end-of-life vessels.

    In chat “Court Mast” asked “[a] milestone and deadlines are laid out, can BCDC have a schedule of remedies in place, specifically financial penalties, if milestones and the final deadline are not met by the RBRA?”

    Also, in ZOOM chat “Jim” asked “Does [Mr. Havel] feel that RBRA staff personal security is protected adequately?”

    Mr. Havel responded that they need all the help from local law enforcement that they get Rebecca Schwartz-Lesberg, with Coastal Policy Solutions, who is completing consultant work with the RBRA on the eelgrass protection and management plan she seconded the comments made by Brock de Lappe about abandoned vessels and the need for better resources to abate end-of-life vessels stating that state legislation about plastics and recyling could assist.

    Commissioner Vasquez recalled his work at the Board of Supervisors and the work in the Delta to clean up abandoned vessels that is referred to local Sheriffs because of the low sale price for end-of-life vessels.

    Executive Director Goldzband stated that the staff are working with the RBRA to get a written resolution similar to the agreement reached with the City of Sausalito.

  7. Future Agenda Items. Ms. Njuguna stated that in an upcoming meeting, staff anticipates bringing a proposed resolution for the Richardson Bay matter. She also noted that summary minutes will now be in use and court reporters will only be used for contested matters. Ms. Donovan then announced her departure from BCDC. The Commissioners thanked her for her contributions. Commissioner Gilmore emphasized the clarity of Ms. Donovan’s explanations.

  8. Adjournment. On a motion by Commissioner Gilmore and a second by Commissioner Vasquez. Chair Scharff adjourned the meeting at 11:20 A.M.