Update on Oldest Cases

Summary

On June 23, 2021, staff presented the sixth iteration of this report on the enforcement cases from 1999 and earlier. The first presentation occurred at the August 8, 2019, Enforcement Committee meeting. In 2019, staff closed three of the eight oldest cases and so far in 2021 staff has closed two more of these cases. This report summarizes the status of the three remaining oldest enforcement cases. The information provided for each case includes the impact prioritization score, a description, as appropriate, of the permit or authorization at issue, a description of the violation, staff actions that have been undertaken to resolve the violation, staff’s proposed case management plan for the case and the case status as of October 8, 2021.

Report Date
October 1, 2021

Prepared By
Adrienne Klein, Principal Enforcement Analyst
For Agenda Item 6 for October 14, 2021 Enforcement Committee Meeting

Case Summaries – Closed Cases

  1. Enforcement Case ER1999.019 located at 1331 Milton Road, Napa County, on the Napa River was closed on August 23, 2019. See the staff report presented to the Enforcement Committee on March 12, 2020, for details.
  2. Enforcement Case ER1999.081 located at 3393 Petaluma Boulevard S., Petaluma, Sonoma County (alternate address is 4001 Highway 101 South) was closed on December 31, 2019. See the staff report presented to the Enforcement Committee on March 12, 2020, for details.
  3. Enforcement Case ER1999.005, located on privately-owned, commercially developed property in Redwood City, San Mateo County was closed on December 27, 2019. See the staff report presented to the Enforcement Committee on March 12, 2020, for details.
  4. Enforcement Case ER1995.002 located at 22 Lucky Drive, Greenbrae, Marin County was closed on July 7, 2021, when Permit M2021.008.00 was issued and signed. See the staff report presented to the Enforcement Committee on June 23, 2021, for details.
  5. Enforcement Case ER1999.034 located at 1620 Fernside Boulevard, City and County of Alameda (United States Army Corps of Engineers San Francisco District Permit SPN-2011-00164) was closed on July 8, 2021, when Permit M2021.009.00 was issued and signed. See the staff report presented to the Enforcement Committee on June 23, 2021, for details.

Case Summaries – Pending Cases

  1. Enforcement Case ER1988.024 located at 628 Johns Place, Benicia, Solano County
    • Impact Prioritization Score: 39  
    • Authorization: Permit 1977.021 authorized subdivision and construction of 10 homes, a concrete block gravity revetment and public access from the street to the beach via a wooden stairway on a 2.3-acre site. 
    • Violation: Public access stairs from blufftop to the beach are in disrepair and closed for safety by the City mandate. The beach is otherwise inaccessible due to a grade change from street to beach.  
    • Staff Actions: Shoreline protection work by the owner of Lot 5 was necessary before the City could reconstruct and reopen the stairs consistent with a maintenance agreement. BCDC and the City of Benicia initiated coordinated compliance efforts in 2014-2015. As of 2019, the City was satisfied with proposed revetment repair design submitted by the property owner. 
    • Proposed Case Management Plan: Allow the landowner to continue pursuing design and regulatory approvals, including from BCDC, for new or repaired seawall so that the City can then reconstruct the public access stairway.  
    • Status on March 12, 2020: Staff received a concept shoreline protection plan from the private property owner’s engineer and provided recommendations for modifications. Staff waited for the revised concept plan and an application for a permit amendment. Staff spoke to the City of Benicia staff engineer, who will oversee the construction of the beach access stairway following completion of the shoreline reconstruction project.
    • Status on July 3, 2020: Staff requested the revised concept plan from the owner’s engineer for the permit amendment twice. The engineer responded the week of June 29 indicating he was revising the concept plan to address some design challenges. Staff reiterated their availability to answer any questions and asked when they would receive a complete amendment request.
    • Status on November 10, 2020: The engineer was resolving some technical issues, finalizing the project design, and preparing a Joint Aquatic Resources Permit Application (JARPA).
    • Status on February 22, 2021: The engineer learned that the product he planned to use in his conceptual design was unsuitable for use in locations that experience wave action. He was looking for another product that could not only be assembled onsite to accommodate site access constraints but also align with the projected total project cost. Staff provided some suggestions for the engineer’s consideration and set up recurring monthly meetings to promote ongoing engagement toward resolution.
    • Status on June 18, 2021:  The engineer submitted a new conceptual shoreline protection proposal on February 26, 2021, approved by staff on March 8, 2021. Staff requested an amendment with fill quantities annotated. The engineer answered staff’s questions in March and had last provided information on the reason for delays in May. Staff were confident that the engineer would submit a proposal amendment request soon that staff could approve.
    • Status as of October 8, 2021: Open, resolution pending. Owners have submitted an incomplete request to amend the permit. Staff began drafting the permit amendment. The Executive Director will be able to issue the amendment as soon as owners file their pending permit application as complete and this matter will be resolved when the permit is issued and signed.
  2. Enforcement Case ER1990.026 located on a managed wetland at the Rich Island Duck Club, Port of Stockton, Suisun Resource Conservation District.
    • Impact Prioritization Score: 90  
    • Location: A 1,025-acre managed wetland at the Rich Island Duck Club (Duck Club), Simmons Island, Solano County.
    • Authorization: Consistency Determination 1985.006, issued to the United States Army Corps of Engineers (USACE) authorized one million cubic yards (cy) of dredging in the Stockton Ship Channel, and disposal of the material at four locations one of which was the Duck Club where the authorization allowed placement of 350,000 cy of material over 100 acres to improve habitat, fill borrow ditches and maintain levees. The Consistency Determination requires removal of any unused material within 10 years of project completion, in accordance with a 1985 agreement between the USACE and Stockton Port District (Port) and a 1986 letter from USACE to BCDC stating the USACE/Port agreement is part of the Consistency Determination. The 1985 Agreement states that the Port has the right to sell, remove or otherwise dispose of any excess material and the Port agrees that if all material is not used or removed by July 1, 1996, the Corps has the right to remove the material and charge the Port for the net cost associated with such removal. 
    • Violation: Ten years after the project was completed on July 1, 1996, BCDC staff notified the USACE, the Port and the Duck Club that they needed to use or remove all excess material to avoid a violation. The Port hired a consultant to prepare a dredged material management plan. 
    • Staff and Enforcement Committee Action: On November 30, 2006, the Enforcement Committee heard the matter and directed the Port, the Duck Club with USACE approval to: 
      • Prepare a final detailed plan based on conceptual plan and completed additional engineering work, environmental review, obtain permits and complete construction, monitoring and reporting; or
      • Remove all excess material to an acceptable offsite location with a reasonable length of time to be determined by the Enforcement Committee and Commission. 
    • Shortly before a follow-up Enforcement Committee meeting scheduled for May 10, 2007, the Duck Cub presented a revised site restoration plan which raised several issues. During the 2007 Enforcement Committee meeting while the USACE and the Port confirmed their commitment to carry out the original plan with Port funding, the Duck Club advocated for consideration of its plan. The Enforcement Committee directed the parties to work on a solution to reconcile the differences between the two plans and report back. The matter remains unresolved. 
    • Proposed Case Management Plan: Schedule a call or meeting with the parties to assess funding and capacity to finalize the site restoration plan within a specified timeframe. If an agreement between the USACE, the Port and the Duck Club cannot be achieved within a specified timeframe then work with the Office of the Attorney General to determine whether to commence litigation. 
    • Status on March 12, 2020: A letter was mailed December 17, 2019, to the USACE to request that it meet its obligations under the letter of agreement dated June 4, 1986. The Port of Stockton retained Anchor QEA, an engineering, environmental sciences and planning and restoration consulting firm, to evaluate the past site remediation proposals and develop a mutually agreeable new remediation proposal eligible for regulatory approval. Two in-person meetings were held with all parties followed by monthly telephone update meetings.  A tentative resolution timeline was scheduled with five milestones and a presentation of a plan to the Enforcement Committee for approval on or about May 2020 contingent on a site visit to assess conditions which was postponed 6 weeks because of COVID-19 shelter-in-place orders.  Ongoing remote and teleconference meetings with the parties were planned to assure ongoing progress.
    • Status on July 3, 2020:  Two virtual meetings were held to refine proposal objectives and evaluation criteria and discuss, improve, and work toward consensus on two documents prepared by Anchor QEA. While the first document identified the existing conditions at the RIDC, the second document summarized two conceptual alternatives to beneficially reuse the dredged material onsite and provided approximately 14 criteria for evaluating each alternative. Due to COVID-19 shelter-in-place orders the parties were unable to meet onsite as a group. On June 11, the consultants conducted a site visit to validate the existing condition assessment completed remotely. The consultant was preparing a refined design alternative based on the group’s feedback, which was a modified blended version of the two conceptual alternatives. The group met again in July to discuss the site visit findings and the refined design alternative. Following agreement on a design, the parties began pursuing the requisite regulatory approvals.
    • Status on November 10, 2020: On September 10, 2020, staff provided a briefing to the Enforcement Committee on the final conceptual design plan and its benefits. The Port of Stockton’s consultant, Anchor QEA, began pursuing regulatory approvals for the conceptual design.
    • Status on February 22, 2021: On November 17, 2020, Anchor QEA presented before the Suisun Marsh Plan Adaptive Management Advisory Team to informally request USACE authorization for the conceptual design through the Regional General Permit 3 for Suisun Marsh Managed Wetlands Operations and Maintenance Projects. Anchor QEA spoke to each resource agency about their respective permitting requirements for this project. The USACE determined that the Suisun Marsh Managed Wetland Maintenance Permit was not appropriate because the proposed work will be undertaken to resolve an enforcement action a decision that the Regional Water Quality Control Board agreed with. The consultant was in ongoing conversations with the resource agencies to determine the appropriate permits to enable project implementation as soon as practicable.
    • Status on June 18, 2021: On April 21, 2021, Anchor QEA submitted a memorandum with its concept proposal permitting strategy to the interested parties. Staff informed the parties that a marsh development permit is required and recommended that the Port of Stockton and Rich Island Duck Club apply for the permit as co-permittees.
    • Status as of October 8, 2021: Open, resolution pending. This summer, Anchor QEA performed a topographic survey and wetland delineation at the RIDC. A design revision is underway to integrate the information gathered. Anchor QEA will use the information to ensure the specifics for the permit applications are accurate, and gain a better understanding of any potential impacts that may need to be evaluated related to the proposed wetland habitat restoration work. AnchorQEA is simultaneously updating the project description and plans while preparing the necessary permit application materials for the regulatory agencies and plans to convene an interagency meeting in 2021 to discuss the anticipated permit application submittals, to verify each regulatory agency’s expectations, and anticipates submitting permit applications in early 2022.
  3. Enforcement Case ER1998.013 located on publicly owned property adjacent to India Basin, northeast of Hunters Point Road, in the City and County of San Francisco.
    • Impact Prioritization Score:   36
    • Authorization: Permit 1993.001 authorized the City and County of San Francisco to place fill in the Bay to raise the grade of a previously filled area, riprap for shoreline protection, paving for public access pathways, boat launch ramp, landscaping, pile-supported fill for fishing pier, boat launch float and boardwalk, and fill in shoreline band for roads, public access, and open space. 
    • Original Violation: Failure to submit the public access instrument required by the original permit. 
    • Staff Actions: The City needs to vacate one or more street rights-of-way (ROW) to enable dedication of a required public access area. BCDC staff met several times with City staff to achieve this requirement, nonetheless, the City was unsuccessful in vacating the street ROW. 
    • Proposed Case Management Plan: Contact permittee to assess the status and provide instructions to submit and obtain approval of the legal instrument within a specified timeframe to avoid a 35-day notice of standardized fines letter or a formal enforcement proceeding. Discuss additional actions given recent development plans.
    • Status on March 12, 2020: Staff contacted the San Francisco Departments of Parks and Recreation (DP&R) and Public Works (DPW) to identify the appropriate contacts to establish whether the requisite street rights of way located within the public access areas had been vacated and transferred from DPW to DP&R for exclusive public use.
    • Status on July 3, 2020: Staff determined that the permittees did not record the legal instrument, vacate the street rights of way, or fully implement the permit public access requirement at both the India Basin Shoreline Park and the India Basin Open Space Area. In addition, a portion of the property is owned by the Port of San Francisco rendering the Port a de facto permittee.  Staff also determined that the unbuilt boat launch ramp will be built at the India Basin Open Space Area by Build Inc., and that the unbuilt fishing pier will be built by the permittee at the India Basin Shoreline Park using a different design requiring a permit amendment. Staff was assessing the compliance status of other permit requirements. Staff had several virtual meetings with representatives from the DP&R and BCDC permit staff. Staff visited the site on July 2, 2020, and observed that the shoreline park required minimal maintenance whereas the open space was unmaintained and potentially inaccessible. Both sites lacked public shore signage. Staff discussed with DP&R the need to comply with all permit requirements including implementing the public access improvements at both parks except the fishing pier and boat launch ramp, and the need to reach an agreement with the permittees about how and when the fishing pier and boat launch ramp will be installed. This approach was determined and being effective to enable case closure while recognizing that permit requirements would not be fully constructed for many years.
    • Status on November 10, 2020: Progress was slowed by staff time limitations at DP&R and at BCDC. Internal coordinated communication occurred and permitting staff proceeded with negotiations with Build Inc., DP&R, and the Port for a related major permit application scheduled for a Commission public hearing and vote in January 2021.  Once the new permit was issued, the permit for this matter would be amended to assure that public access requirements reflect current site conditions.
    • Status on February 22,2021: Staff conducted a site visit on January 7, 2021, prepared a summary of compliance issues, and scheduled a meeting with the permittees on March 10, 2021, to discuss the findings.
    • Status on June 18, 2021: During the March 10, 2021 meeting with DP&R staff, staff reviewed the list of permit compliance issues and DR&R staff agreed to submit an action plan for resolving each issue. On April 16, 2021, DP&R submitted its action plan, including evidence of some maintenance concerns that had been completed. Between April and May 2021 staff responded to requests from DR&R. On April 29, 2021, DP&R and staff conducted a virtual meeting to discuss DP&R’s action plan. On May 18, 2021, the resource agency staff met for a progress report wherein BCDC staff agreed to draft a permit amendment in advance of receiving an application and DP&R staff agreed to complete the draft plan for missing public access improvements so that those public benefits could be installed. The next progress tracking meeting was scheduled for July 16, 2021.
    • Status as of October 8, 2021: Open, resolution pending. DP&R submitted and obtained approval of plans for the missing public access improvements and signage and have installed the missing benches and a majority of the signs. Staff drafted the permit amendment and shared the draft with DP&R. The Executive Director will be able to issue the amendment as soon as DP&R submits an amendment request and this matter will be resolved when the permit is issued and signed.