Approved Minutes of December 17, 2020 Virtual Commission Meeting
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.
Roll Call. Present were: Chair Wasserman, Vice Chair Halsted, Commissioners Addiego, Ahn, Beach (represented by Alternate Williams), Butt, Chan (represented by Alternate Gilmore), Cortese (represented by Alternate Scharff), Eckerle, Eisen, Gioia, Gorin, Gunther (represented by Alternate McGrath), Lucchesi (represented by Alternate Pemberton), Peskin, Ranchod, Randolph, Sears, 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: Department of Finance (Finn), San Mateo County (Pine), Department of Business Transportation & Housing (Vacant)
- 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, 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 *9 on your keypad to raise your hand to make a comment. We will call on individuals who have raised their hands in the order that they are raised. After you are called on you will be unmuted so that you can share your comments. Remember, you have a limit of 3 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 me refer to the meeting "host" -our BCDC staffs 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 firstname.lastname@example.org. We 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 as soon as possible.
Ms. Jana Sokale addressed the Commission:
Chair Wasserman moved to Approval of the Minutes.
- Approval of Minutes of the November 19, 2020 Meeting. Chair Wasserman asked for a motion and a second to adopt the minutes of November 19, 2020.
- Report of the Chair. Chair Wasserman reported on the following:
Two weeks ago the United Nations issued a State of the Climate report. It is fairly dismal. It projects that 2020 will go down as one of the three, hottest years on record for the entire globe. Marine heat waves have swelled over 80 percent of the world’s oceans and triple- digit heat invaded Siberia; one of the world’s coldest places.
The U.N. Secretary General, Antonio Gutierrez said: “the state of the planet is broken.” While we all need to work as we have been doing to reduce greenhouse gas emissions to try to slow this terrible problem; we on this Commission are faced with the additional challenge of working ever more quickly to figure out how the Bay Area is going to adapt to rising sea levels.
If by some miracle we reduced greenhouse gas emissions to zero tomorrow we would still face this problem.
It is probably worth at least skimming that report to help us to dedicate our efforts to this very challenging problem that we face.
Commissioner Sears. I am sorry to report that today will be Commissioner Sear’s last BCDC meeting, as she decided not to run again for office after a long and illustrious career of public service. We are losing a number of very important regionalists who have decided not to run for re-election. Many of you on this Commission who are elected officials hopefully will continue to step up and encourage a new generation of regionalists to arise. These are people who have risen above partisan, parochial and local politics to really look at the region as a
whole. Commissioner Sears grew up in Mill Valley and Sausalito and was a lawyer in private practice for sixteen years before becoming a supervising Deputy Attorney General in the Consumer Law section. She was appointed as a Marin County supervisor by Governor Brown in 2011 and immediately appointed to our Commission and has added greatly to our work and our efforts. Her comments are straightforward and to the point, but always courteous and always delivered with that very charming smile. Just a few of her notable achievements are that she:
- Volunteered to serve on the first Commission Working Group on Rising Sea Level;
- Was the Leader of the grassroots “Southern Marin Sea Level Rise Pilot Project” that partnered with BCDC’s Adapting to Rising Tides;
- Sponsored the "OWL" viewers on the Mill Valley-Sausalito, multi-use pathway that graphically showed future rising sea level; and
- Was a leader on Marin’s county-wide, rising sea level, vulnerability assessment. (Sears Accolades)
Commissioner Sears commented: I want to thank everyone for those extremely kind and generous remarks. I am a local kid and I graduated from Tam High in the Valley in 1969. BCDC was young then and my mother was a real environmental activist as was my father. She talked a lot about BCDC.
I decided during my last term in high school that I really wanted to attend BCDC meetings. Attending the meetings created a desire for me to be on the Commission and in 2011, I got on the Commission.
It’s really been an incredible pleasure to serve with all of you. The ART Project was such an inspiration for me in creating the sea level rise pilot projects in Southern Marin and BCDC staff was so incredibly supportive in that endeavor. It was the first time that a lot of us had thought about vulnerability assessments. And that launched us on a lot of really great work on sea level rise in Marin County.
The other tremendous help for me on BCDC was the working group on rising tides. And that was a fascinating experience and we all learned a lot and it got us thinking more broadly about the impacts of sea level rise around our Bay but also internationally.
There is so much good work to be done and I was just interviewed by a reporter about my retirement and leaving office and the first question he asked me was, how did I feel about the climate situation? That is a horrible question to be asked. You want to be helpful but it is difficult given our circumstances.
That U.N. report definitely gives us a context but it is important to be hopeful and to push ahead and I’m famous with Marin County staff for my impatience and urging everyone to take action and not get distracted and not get hopeless.
I know that all of the Commissioners are committed to taking action and moving forward and doing everything we can to address our climate impacts whether it is sea level rise or whatever else we can touch.
I really thank you so much and it has been a privilege to be on the Commission. You are a wonderful group of colleagues and I know that you are going to carry this really important work forward —just please go a little faster, okay?
I definitely hope to be involved in climate-related work in one way or the other during my retirement. I hope that all of our paths cross again and thank you for the really warm send- off.
Chair Wasserman responded: thank you, Commissioner Sears you will be missed here and I hope to see you in some activist role.
I am pleased to announce that Governor Newsom has appointed Rebbeca Eisen to the Commission and she has joined us here today. She has significant experience with public bodies. She served for eight years on the California State University Board of Trustees where she served as Vice Chair and Chair. She has retired from an illustrious career in employment law and we welcome her here today. I would like to give her opportunity to make a statement.
Commissioner Eisen addressed the Commission: Thank you, Zack and thank you Larry and thank you Jenn Eckerle for having spent some time with me this last month helping me to get my feet under me. And thank you, Kate Sears, I’m so sorry that I am not going to be able to work with you. You have given me an opportunity to hear from this entire Commission about what a collegial and important group this is.
I will share with you some of my background. I live in the Bay Area but I grew up in Vacaville. My dad flew B-52s out of Travis Air Force Base and when he retired from the Air Force he became a prison guard.
I moved as quickly as I could to the Bay Area when I was 17 years old. I went to U.C. Berkeley and we called it Cal then. I got my second degree at San Francisco State and my third degree at U.S.F. So I’ve been in the Bay Area for many decades.
I did retire from my legal position about five years ago and now I enjoy the Bay mostly while I am birding. And I know that there are birders among you and I hope you will contact me and share secrets with me about the Bay which is really one of the most amazing birding places in California.
I mentioned birding because for me it was what I call a gateway drug. Birding if you get into it pretty soon you will also be passionate about the entire, natural world, passionate about wildlife conservation that will then lead you onto being concerned about climate and the environment and all of that. So it’s a wonderful way to open your eyes to a whole world of opportunities and issues.
I did serve on the Cal State Board for eight years. That was an amazing experience. I have a feeling that I have a lot to learn here.
I was very thrilled though when I looked at the staff bios to see that 11 of the BCDC staff members got a degree at one of the 23 Cal States. It is the biggest university in America. They have 500,000 students, 4,000,000 alums and 11 of them work for BCDC.
That gives you a little bit of sense of me. I’m really looking forward to meeting all of you hopefully in-person someday. And I’m looking forward to the good work that you do and being a part of it.
Chair Wasserman continued: Thank you for joining us. We look forward to your participation.
I am pleased to announce that Commissioner Wagenknecht has graciously agreed to serve on the Enforcement Committee meaning we only have one vacancy, one opportunity. We are internally debating whether we will try and do this in a rationale manner or simply put all of your names in a hat and pick one out. But we do need a full Enforcement Committee as will be illustrated by the reports on the rest of our Agenda.
Speaking of enforcement, I would ask Commissioner Scharff to give us a brief report on the two meetings of the Enforcement Committee that have occurred since our last Commission meeting.
Commissioner Scharff presented the following: Thank you. We seem to have a lot of progress with Sausalito on Richardson’s Bay and that will be coming to the next Commission meeting in January. I think we can all be pleased with the direction that is going and I did want to thank the city of Sausalito for their hard work in working with BCDC staff.
We still haven’t resolved things with the RBRA but that is also moving in the right direction.
I would also say that we have less cases than because we’ve managed to resolve a lot of the older cases and a number of the cases are falling in terms of the backlog. We have made great progress on moving forward in terms of making the structural changes to the enforcement process.
So all of those are positive things moving forward. Chair Wasserman continued: Thank you sir.
We will hold the next Financing the Future Working Group meeting at 10:30 am on January 21st by Zoom. And we will hold the next Education Working Group meeting at 10:30 am on February 4th by Zoom.
We do look forward, sometime next year, to having meetings in person which will be more collegial albeit, perhaps, less convenient.
- Next BCDC Meeting. We will not need to hold our January 7th meeting, so our next Commission meeting will be on January 21st. At that meeting we may consider the following:
- A possible public hearing and vote on the settlement agreement to which Commissioner Scharff just referred dealing with the anchor-outs in Richardson’s Bay:
- A possible public hearing and vote on a proposed resilience project at Heron’s Head Park in San Francisco;
- A possible public hearing and vote on a proposed project at Alameda Point;
- A possible public hearing and vote on a proposed project at 700 Innes Avenue along the San Francisco Waterfront; and
- A possible public hearing and vote on a proposed cease and desist order at the East Lagoon of White Slough, in Vallejo.
- Ex-Parte Communications. That brings us to the point in our meeting when anyone who has had an ex-parte communication that needs to be put on the record may do so verbally now keeping in mind that you need to do so in writing if you have had those. Are there any? (No one reported an ex-parte communication)
That brings us to the Executive Director’s Report.
- Report of the Executive Director. Executive Director Goldzband reported: Thank you Chair Wasserman.
Each of as individuals and families have our own traditions. A dear friend of mine woke up at 5:00 A.M. each November 10th to be the first sibling in her family to wish her father a “Happy Marine Corps Birthday” after he woke up, thus earning a dollar. In our family, on just about every December 17th (today) Beethoven’s Ninth Symphony would play on our family’s stereo to celebrate the anniversary of his birth. Today, I must report that there is no real agreement on the exact date of Beethoven’s birth. However, today, December 17, 2020, is the 250th anniversary of his christening. In 1785, German poet Friedrich Schiller composed his “Ode to Joy” that Beethoven used 39 years later as the choral center of his great work, the Ninth Symphony. As the holidays are upon us and we search for ways to express our gratitude in a horrendous year, I urge you to read Schiller’s Ode. I am always struck by a couple of the lines, including his observation that we should try to “[succeed] in the great attempt, to be a friend’s friend” and his belief that we should all be embraced and kissed as we seek our version of peace. In that vein, I urge you all to have a safe, healthy, vibrant and peaceful holiday season and I look forward to seeing you in the New Year.
- Budget and Staffing. I am pleased to let you know that Planning Director Jessica Fain has selected Erik Buehmann as our new Long-Range Planning Manager —the position held formerly by Shannon Fiala. You’ll remember that Erik is our current Manager for Bay Resources in our Permits unit where he’s done a terrific job of organizing how BCDC approaches nature- based, development projects. Now, as he moves over to the Planning side of the house, we’re excited that this will enable the regulatory and planning divisions to become even better at collaborating on projects that affect how each works. Erik has the talent and the experience as a permitter to do that. We are sure that you agree.
Unfortunately, we’re losing Emily Mann this month. Emily has worked as a permit analyst in our Shoreline Development team for a few months and has been a great asset but she has decided to move back down to Los Angeles to be closer to family. Our loss is SoCal’s gain; she’ll be a planner with the Southern California Association of Governments (SCAG). We have posted her Shoreline Development Analyst position (please share with your networks!) and expect to complete the hiring process next month.
Now, hold on to your hats because I actually have two pieces of good, budget news.
First, you’ll remember that last year the State Department of Finance conducted a mission- based review of BCDC’s Enforcement Program in response to the May 2019 Audit. The review’s analysis was cut short by the pandemic. Concurrently, many of us within BCDC agreed that an outside organization should review BCDC’s permitting process which has not been comprehensively updated for 30 years or so and whose results have outsized implications for the Enforcement Program and permit compliance. Indeed, last year we wrote a thought-piece on the topics within such an analysis. I am happy to report that the Department of Finance staff who conducted the enforcement review recognized during that review that BCDC’s permitting program also should be analyzed. So, the Department of Finance will start a mission-based review (MBR) of BCDC’s permitting process in January to identify possible and necessary changes both in how permits are considered and in the permit application itself.
BCDC welcomes the permitting MBR just as it did with the aforementioned enforcement MBR. Brad McCrea and his team will spend a great deal of time with Finance staff and we look forward to keeping you updated on the progress.
Second, I am pleased to let you know that Meichelle Liang, BCDC’s sole accountant, was able to close our books with the Department of Finance and the State Controller last week. It took a few months longer than normal because the state’s relatively new accounting system continued to change requirements throughout the process. That forced Meichelle to re-open the books from last year and reconcile some imaginary numbers. Suffice it to say that we’re in good financial standing thanks to Meichelle’s determination.
- Policy Issues. I’d like to ask Planning Director Jessica Fain to give you a short update on the progress of BCDC’s BayAdapt program.
Ms. Fain presented the following: Thank you, Larry. Greetings, Commissioners and happy holidays.
At our last Commission meeting we briefed you on, and had a great discussion about, BayAdapt and I’d like to share some updates.
To recap, our Working Group over the summer and early fall created an initial draft of 15 actions that form the BayAdapt Joint Platform. And these actions ranged from creating a regional vision and empowering community voices and adaptation planning to incentives and legislative coordination, regional funding plans and technical assistance.
This work was the result of about 100 Working Group members from across the region’s resilient spectrums who collectively put in over 1,500 human hours in developing this draft —this is not BCDC staff time this is all of the people who helped develop this with us.
When we presented this draft to our Leaders Supervisory Group in October they were generally supportive but we also heard that before embarking on full-fledged, outreach blitz with these drafts we should pump the brakes and do some polishing and refining.
We also heard that our outreach needed to be collective and demonstrate the joint nature of this work.
So therefore we are spending our time now and into early 2021 doing two main paths. The first is convening a joint- platform subcommittee comprised of a handful of Leadership Group members and affiliates to take another look at the draft joint platform with a bit more breathing room.
I just got off the phone from one of these meetings earlier this morning and I can already tell it’s going to be a very productive use of everyone’s time.
The second task is hosting a series of focus groups to test; are these actions clear, meaningful and impactful? This will be done with a range of audiences and in partnership with the leaders involved in BayAdapt.
So I am excited to say that we are going to be partnering with LAG members at Nuestra Casa and BARHII for three, community, focus groups in East Palo Alto and are thankful to the Bay Area Regional Collaborative for providing funding to support community participation stipends for that.
We are also hoping to host a youth, focus group with the Mycelium Youth Network and the Exploratorium. We will be working with BAYCAN on a local, government, focus group as well as with the San Mateo Sea Level Rise District’s Board for a local-elected-official, focus group.
And finally, we will be working with the Bay Planning Coalition for an industry- focused group as well as the Citizen’s Committee to Complete the Refuge on an environmental- focus group.
With all of this input we will be putting together a revised draft for the Leadership Advisory Group’s consideration and also look forward to briefing you on this in early 2021.
Executive Director Goldzband continued: Thank you, Jessica.
Some more good planning news —a few months ago Megan Hall provided you with a staff recommendation to approve BCDC’s, proposed, five-year Assessment and Strategy document required by the National Oceanic and Atmospheric Administration. That analysis and proposal sought NOAA’s approval for BCDC to retain its federal accreditation as a coastal zone management program. I’m happy to report that the strategy that you approved unanimously has also been approved by NOAA which is a very good result given that it reflects so much of what you deem important.
As promised, I need to update you on our staff’s attempt to assemble a team of federal, state, regional and local government agencies to rid the Bay of the tug Polaris which is stuck just off the Contra Costa shoreline and figures prominently in the Enforcement Audit. You will remember there is not a state program to pay for such salvage operations. Therefore, we worked to determine whether we could apply for a federal grant for such an operation with a host of partners. In short, we simply didn’t have the time to assemble the required parts of that funding puzzle for this round. So we’ll regroup and try again during the next one.
And now for something completely different. You may know that the San Francisco Bay-Delta is named in the federal Clean Water Act as one of 28 “estuaries of national significance." As part of this designation, the San Francisco Estuary Partnership (SFEP) has worked with local communities and federal and state agencies to create a Comprehensive Conservation Management Plan known as the “CCMP” for the Bay-Delta for the Bay-Delta that is designed to improve the estuary’s health and resilience. The Estuary Blueprint, part of this plan, has 32 actions to accomplish this goal and is updated every five years. That quinquennial exercise will begin next year and workgroups are being formed now. I urge you to contact Caitlin Sweeney, Director of the Estuary Program, if you want more details and you want your staff involved and if you want to lend your expertise.
Finally, I have two issues that merit your attention. First, posted on our website and attached to my e-mail summary of this meeting will be a memo from Governor Gavin Newsom’s Chief of Staff, Ann O’Leary. That memo summarizes the Governor’s new directive that there be a bright line between his campaign team and the lobbying industry. In short, no individual who is working for the Governor’s re-election campaign will be allowed to advocate on behalf of a client in front of any state body, including BCDC. I urge you to read the memo and please let me know if you have any questions about it.Finally, each of you has received multiple e-mails from the California Department of Justice reminding you that you must complete your biennial, ethics, review course by the end of this year. By my count, over 20 Commissioners and Alternates had not completed this requirement as of late last week. By my count there are 13 days remaining in the year after today during which you must do that. Please do so and do it quickly.
That completes my report, Chair Wasserman, and I’m happy to answer any
Chair Wasserman asked: Any questions for Larry?
- Budget and Staffing. I am pleased to let you know that Planning Director Jessica Fain has selected Erik Buehmann as our new Long-Range Planning Manager —the position held formerly by Shannon Fiala. You’ll remember that Erik is our current Manager for Bay Resources in our Permits unit where he’s done a terrific job of organizing how BCDC approaches nature- based, development projects. Now, as he moves over to the Planning side of the house, we’re excited that this will enable the regulatory and planning divisions to become even better at collaborating on projects that affect how each works. Erik has the talent and the experience as a permitter to do that. We are sure that you agree.
Consideration of Administrative Matters. Chair Wasserman stated: That brings us to Item 7, Consideration of Administrative Matters. We have received and Administrative Listing on December 4th. Brad McCrea is here if you have any questions regarding the Administrative Listing that we provided to you on December 4th. (No questions were voiced)
Briefing, Public Hearing and Possible Vote to Commence the Rulemaking Process on Proposed Amendments to the Commission’s Regulations. Chair Wasserman announced: Item 8 is a briefing, public hearing and possible vote to commence the rulemaking process for amendments to BCDC’s regulations. Chief Counsel Marc Zeppetello will provide the staff presentation.
Mr. Zeppetello addressed the Commission: Thank you, Chair Wasserman and good afternoon Commissioners. On December 4th you were mailed a staff report on proposed amendments to a series of the Commission’s regulations concerning administrative/procedural, permitting and planning matters.
Today I am going to give a brief presentation of the key points of the proposed amendments. But first let me address the issue of process. You will not be asked today to vote on the proposed amendments. This is a briefing and the action today will be to request that the Commission authorize staff to commence the rulemaking process with the Office of Administrative Law.
Assuming the Commission authorizes staff to move forward we will make any revisions that are appropriate based on comments we receive from the public or the Commission. We will then prepare a Notice of Proposed Rulemaking that will start a 45-daypublic comment period.
In a couple of months from now we will have a public hearing on the proposed amendments. Following the hearing, staff will respond to comments and then we will bring the matter back to the Commission for a vote.
Assuming the Commission adopts the proposed amendments, the package then gets submitted to the Office of Administrative Law for approval. It is a six or seven-month process probably from today.
I will acknowledge upfront that regulations are not the most exciting topic that comes before the Commission, but in an effort to make this interesting you should know that the staff consults your regulations on a daily basis —at regulatory staff meetings, at meetings with applicants.
The regulations, like the policies in the Bay Plan, guide staff and they guide you. I’d like to suggest that you consider this an opportunity for training on the regulations and consider staff’s suggestions for some amendments as to how we can update the regulations in certain respects and improve their clarity.
We’ve broken the amendments down into three categories —the first being Administrative and Procedural. The first topic I want to address is the proposed changes to the regulations regarding, we’ve got companion regulations on requiring that Commission meetings be recorded and also that minutes be prepared.
The minutes that have been prepared historically have been almost verbatim minutes.
The court reporter records the meeting and then prepares minutes that sometimes are 40 pages in length. The Executive Director and Chair sign the minutes and those minutes are the original evidence of the actions taken by the Commission.
We propose to amend these regulations in two respects. One is that the recording would be posted on the website as they are and have been traditionally, at least the audio recording, or that we provide access on the website to the recording. The second is that the minutes would be somewhat simplified and that rather than having a full transcript minutes, the minutes would simply record the actions taken, Commissioners present and be more abbreviated in format.
There are two motivations behind both of these changes. One is that technology has improved. I was told that in the old days the recordings were made with a cassette recorder on a table. Now at 375 Beale there are microphones that are tied into the sound system of the building and the meeting today is recorded on Zoom. And so, the recordings are adequate to provide a full and accurate record of what happens.
The other motivation is cost. In these times particularly with the state budget, it would be a cost savings to not have the written minutes be as extensive and detailed as they are.
In researching this issue, I checked the requirements of some other state agencies, and the Coastal Commission formerly had regulations requiring recordings and minutes. They repealed those regulations a couple of decades ago. So, they have no regulations, but they still do record meetings and post the recordings or make them available on their website and they keep meeting minutes, but the minutes are abbreviated.
There are many agencies that do not have regulations. State Lands and the Department of Fish and Wildlife are two that I checked. They have no regulations on this topic at all. The State Water Board and the Regional Boards do have requirements to keep minutes and recordings and they do both, but again their written minutes are relatively abbreviated and not nearly as lengthy or detailed as the Commission’s.
There are a series of regulations regarding ex parte communications and disclosures in adjudicatory matters; adjudicatory matters being permitting and enforcement matters. Over the years there have been questioned raised by Commissioners regarding the clarity of these regulations and their meaning. The regulations prohibit ex parte communications but then if you engage in an ex parte communication, you need to report it. So, it seems perhaps inconsistent that there is a prohibition, but you can have an ex parte communication and just report it.
And we’ve also struggled with the issue of public comment letters or blast emails on occasion where there is a matter and emails are sent to all Commissioners —are those ex parte communications that need to be reported?
I researched this matter and quickly found that our regulations implement and are based on several provisions in the Government Code that were enacted in the late 90s that apply to adjudicatory proceedings by all state agencies.
I have cited the provisions here and summarized them, but there is a prohibition on ex parte communications with a presiding officer which in our context is you, the Commissioners, except that there are a couple of provisions in the Government Code that list a number of exceptions.
But if there is an impermissible ex parte communication the presiding officer is required to report the ex parte communication on the record and to notify parties to the proceeding of the communication and allow those parties to address the decision-maker, and receipt of an ex- parte communication could be grounds for disqualification.
In summary, the question has come up —well what if I am approached by a permit applicant or a respondent in an enforcement proceeding and they want to meet with a Commissioner? What the Government Code would say and our regulations would say is that your response could and should be that you can’t do that. The regulations prohibit that, but the regulations can’t prevent it.
The consequences if you engage in an ex parte communication is that you are required to report it and it is required to be put on the record and shared with the parties to the proceedings, which is a step in this process that we have not consistently followed in recent years. And then the public or a party to a proceeding has an opportunity to comment on that communication.
I will give you a couple of hypotheticals. I’ve seen ex parte communication reports where the only thing stated is: “met with the applicant’ or ‘was briefed about the project.” A concerned party could say that this doesn’t meet the spirit or the requirements of the regs; it doesn’t really say what was said and who said what.
A member of the public could ask whether there was a discussion of whether you would support the project. Did you agree to support the project? Or a member of the public might have information from talking to the other person whoever it was that met with you and might claim you left something out of the disclosure.
And ultimately a member of the public or a party could request that a Commissioner that had an ex parte communication recuse him or herself. Now that is not to say that you would have to, but the issue of the communication, the substance of it and whether you might need to recuse yourself would be something that would need to be discussed or could be discussed on the record in a public forum.
With that as background and context for the amendments that we are proposing to the regs, I’ll move on.
Regulation 10283 is the general policy and instead of making it a flat prohibition the amendment would recognize that there are certain permissible, ex parte communications as set forth in the next regulation.
I should point out that what was mailed on December 4th includes the complete set of all of these regulations with the changes shown. For this presentation I just excerpted the key points and the key changes.
The proposed amendment to Section 10284 adopts the concept that, given that the Commission is a public body and there are public proceedings, if a communication is a public comment letter or a public comment email and you receive that and you don’t respond or only respond by acknowledging it and thanking the sender, this should be a permissible ex parte communication that does not require disclosure.
The current regulations require the Executive Director to notify the parties in writing of a disclosed ex parte communication. The proposed amendments try to recognize that in many cases the disclosure may not happen until the Commission meeting or on a short time frame, so it allows for either a disclosure that happens a week before or the day of the Commission meeting.
In subsection (d) here, the Government Code allows a party to address the presiding officer within 10 days of receiving notice of a disclosure, which is a hard fit sometimes if the disclosure in our case would happen just prior to or at a Commission meeting. The proposed amendments would make it clear that a party has an opportunity to request to address the Commission at the meeting at which it considers the matter, and I would argue if a party fails to do that and if they wait for 10 days it is too late for any action or real consideration if the Commission has already voted.
On Section 10288 there is a section about ex parte communications that happen after the close of the public hearing. This regulation addresses the very limited circumstance where occasionally the Commission will have a public hearing on a permit application at one meeting and defer a vote until a subsequent meeting. And I believe we had that same situation in an enforcement context a few years ago where the public hearing was closed but the Commission didn’t act, or maybe it was the Enforcement Committee didn’t act, until a following meeting.
The next series of proposed amendments relates to the two Commission advisory boards, the Design Review Board and the Engineering Criteria Review Board, and one of the things we were trying to address here is that the regulations for the Design Review Board is rather detailed whereas the ECRB regulation is abbreviated. So, we’ve expanded that one to make it nearer the DRB regulation.
As to the DRB regulation, the primary change is subsection (h), and we talked about this a few meetings ago when the Commission appointed a number of Alternates.
On subsection (d) it currently says that DRB members, the Alternates have to be former members of the DRB and that was found to be too limiting. It was proposed at that discussion that it really should be expanded to include individuals with expertise but not necessarily prior members and that would open up membership for Alternates to a wider body of individuals.
And then in subsection (h), adding a term limit for DRB members and a new subsection (i) to make it clear that the ex parte rules apply to DRB members.
Here is the regulation for the ECRB and it currently is just about two sentences long.
We’ve expanded it to track the different subsections for the DRB, and in addition, in subsection (a) it is proposed to add a coastal engineer as one of the subject-matter experts given the climate change and sea level rise adaptation focus of much of what the ECRB reviews.
There are some amendments proposed to the regulations about submission of DRB and ECRB materials. The current regulation for DRB materials goes on for about two columns in the code of regulations listing detailed drawings and requirements, and we propose to delete that detail and just refer to the DRB pamphlet which is instructions for applicants to prepare for DRB meetings and does break down requirements for certain types of projects, or to documents as requested by the Executive Director.
And for the ECRB the changes here were proposed by BCDC’s engineer who is the lead staff person for the ECRB to better define the information that the ECRB needs to review regarding the safety of fills for projects in the Bay.
There is a regulation about the distribution of applications for major permits and there has been some ambiguity or uncertainty with staff about whether distributing a copy of the application means everything that constitutes the application which is sometimes voluminous, including environmental documents and studies and site plans and figures, so we propose to clarify here that this is really a notice provision to provide notice to other agencies and that the application form and a project description and site plans are sufficient, and also to put a time frame on when this needs to be done.
I recently learned after being at BCDC over five years that we have something called “a 28-day Letter” to send out these materials and that is based on a different regulation. And the proposal is to put it in here to memorialize the time frame in the right place.
The next thing to talk about is the contents of a resolution granting a permit. The content of the resolution is really the staff report which is a recommendation that the Commission approve the project with conditions and findings.
The two basic changes here are that currently there is a requirement that the project conform to, as found in subsection (d)(1)(a), that it conform to the McAteer-Petris Act for a project in the Bay, and then subsections (b) and (c) relate to projects in the Marsh.
Subsection (b) currently talks about what the Commission needs to look for if there is no certified local protection program for the Marsh, but there has been a certified local protection program for the Marsh since approximately 1980 if not before that and although it will be amended, it is not going away. This provision seems irrelevant and you will see in a number of the amendments we’ve proposed to eliminate the language about if a certified LPP exists.
The other changes in this section in parts 3 and 4 are to clarify the findings that need to be made by the Commission when it is the responsible agency under CEQA, which it is most of time, or for when it is a lead agency under CEQA. The references to the Public Resources Code sections and the CEQA guidelines here relate primarily to the findings regarding the evaluation of alternatives, mitigation measures, and in some cases, statements of overriding consideration.
The next regulation to talk about is Section 10514, Commission Findings on Permits.
Subsection (a), which I’ve left out, says that if the Commission acts in a manner consistent with the Executive Director’s recommendation then the staff report and the recommendation are the basis for the Commission’s findings.
The remaining provisions of subsections (b), (c) and (d) address situations where either the Commission imposes new conditions or additional conditions or when the Commission acts in a way that is contrary to the Executive Director’s recommendation, which does not happen very often; I believe in the staff report we reference February 2017 as the last time this happened, which was with one of the hotel projects in Alameda.
The concern with the regulation as it is currently written is that it requires Commissioners who voted contrary to the Executive Director’s recommendation to state their reasoning after the vote and those statements then become the basis for the Executive Director to prepare findings to bring back to the Commission at the next meeting.
The problem is that this doesn’t really work in practice because we don’t know how the Commission is going to vote until it does and once the Commission votes it moves on to the next item and because Commissioners state their reasons before a vote.
The legal concern is that I don’t want the Commission to be in a situation where a party unhappy with the Commission’s decision could challenge the findings developed after the vote because the Commissioners who voted in a certain way failed to state their reasons in accordance with the existing regulation.
The proposal is to change the regulation to make it permissive. The Commissioners may state their reasons and if they fail to state their reasons they will be presumed to have based their vote on the testimony or evidence in the record and the Executive Director would rely on the entire record of the hearing or meeting in preparing the findings.
This one is Regulation 10610 on Applications for Administrative Permits. For a major permit, there is a provision, section 10311, that authorizes the Executive Director to waive certain filing requirements. Some requirements cannot be waived. This amendment would simply make it clear that those same provisions apply to administrative permits.
Section 10621 also relates to administrative permits; the Executive Director and Commission’s actions. Currently the regulation requires the Executive Director to issue an administrative permit within five days after a listing if the Commission declines to take it up. Permitting staff have expressed the view that this is actually a disincentive to list administrative permits early because it then establishes a short time frame to have to finalize and get the permit out. We propose to change this to allow the full time period as authorized under the McAteer-Petris Act.
The changes in subsection (e) here are simply to make the administrative permit regs consistent with the regs for major permits. There are currently provisions in the major permit regs about applicants being allowed to withdraw their application temporarily or permanently and this amendment would make those provisions applicable to administrative permits as well.
I mentioned in the staff report that there a number of regulations that we propose to change to allow notices that are currently required to be sent by mail to be sent by email and also posted on the website. This is one example in section 10213 and there will be a couple of others that will show up during the remainder of the presentation.
The amendment to section 10370 is an example of another series of amendments where if there are two or more co-applicants, each co-applicant must sign a letter if they are requesting an amendment to an application or an amendment to a permit.
The major permit application requires co-applicants to sign. But as the Commission may recall, a number of years ago we had a matter where two co-applicants were in litigation with each other and one co-applicant wanted to amend the permit and the other one didn’t. They brought the matter to the Commission and the argument was whether both had to sign or whether the Commission could amend the permit on the request of just one co-applicant.
This series of proposed amendments would make it clear that if there are two parties they need to act together. If they’ve got issues between themselves, they need to work them out and they need to come to the Commission together.
Now I will move on the more substantive permitting regulations. The first topic is emergency permits. We propose to amend the definition of “emergency” by adding the words “sudden and unexpected” to the description of the situations that may warrant an emergency permit. This would make our definition consistent with the definition used in CEQA for an emergency and the definition in the Coastal Commission’s regulations.
The main motivation for this is to avoid situations where property owners defer maintenance and avoid coming for a permit and then claim they’ve got an emergency situation and they don’t have the time to go through or to provide the information that would be needed for a normal permit application. That is the position that staff takes. These permits are issued by the Chair and the Executive Director and they also take this position, but the amendment would make it more explicit that a situation needs to be sudden and unexpected and that deferred maintenance typically would not qualify.
The amendment on Criteria for Granting Permits, it is proposed that an emergency permit could have an expiration date and have a requirement to submit a regular permit application. The reason for this is that emergency permits are granted on an expedited basis typically without full review and in appropriate cases, if staff or the Executive Director or the Chair felt it was warranted, there should be flexibility to have the permit expire and have the applicant come back and go through the normal permitting process which might require or result in additional appropriate conditions or mitigation.
The amendment to section 10653 is simply to clarify that the Executive Director would request additional information when issuing an emergency permit if necessary. The current language is vague in simply saying, “substantially similar to what’s required for an administrative permit.” This is an attempt to clarify that the Executive Director will specify what further information is needed at the time the emergency permit is issued.
There is a regulation that talks about the definition of the Bay and certain waterways jurisdictions and these are some clarifications and corrections to show that these water bodies, what distinguishes them, is they are tidally influenced.
In subsection (a) it is a clarification or correction in that currently the regulation is written that the Commission’s jurisdiction goes up to five feet above mean sea level, but that’s only where tidal marsh vegetation is present. So, that is the purpose of that clarification.
Section 10123 is regulation that has been on the books since the early days of BCDC. The basic concept here is that if an area had been diked off from the Bay or not subject to tidal action prior to the establishment of BCDC, it should not come within BCDC’s jurisdiction if because of a natural event a tidal control structure is broken or a levee is breached.
The rule going back to the earliest version of this regulation I could find is that generally a property owner should be given one year to fix the problem to prevent the Commission’s jurisdiction to go into an area that is now subject to tidal action but wasn’t before.
The concern with this regulation — and it has been problematic, and it is one that hasn’t come before you but staff has had to deal with it on a number of occasions — is that it requires the Commission to give notice to the property owner for the one-year period of time to start the clock which is totally unworkable in the real world, since the Commission staff is not policing the entire Bay.
If staff finds that there has been a breach or some change, we don’t know when or how it happened. I’ll give two examples. One of my first site visits at BCDC was a site where there was a tidal slough and then a drainage behind a parcel of property and apparently a decade before this drainage had not been tidal but now it was, and so it changed the Bay shoreline and the shoreline band. We went on a site visit and found a broken tidal gate and it raised a whole series of questions that staff had to grapple with. How did it break? When did it break? Did we ever give notice to anybody?
In that case we decided that it was pretty clearly a situation of lack of maintenance and it wasn’t that there was damage by natural destruction of the tidal gate, so we asserted jurisdiction over this drainage area that had become tidal.
But in a more recent situation, there was site where an area had become tidal and the property owner and the property owner’s lawyers took the position that because we never wrote a letter that gave them a year, this area was not subject to BCDC jurisdiction and they refused to come to get a permit and we ended up acquiescing.
The proposed amendments here would require the property owner to give notice to the Commission and propose a time frame if more than one year is necessary to fix the problem, rather than having an open-ended regulation that puts it on the Commission or the Commission staff.
As many of you know, one basis for the Commission’s permitting jurisdiction under the McAteer-Petris Act is a substantial change in use. There is a regulation that defines and expands upon the term, “substantial change in use.” The two amendments that I would address include a proposal to increase from $250,000 to $500,000 the cost of construction or work that would be the trigger for a substantial change in use.
This change was proposed to staff by the Port of San Francisco because of increases in construction costs over time since the last time this regulation was amended. I will add that the Port also proposed that we put in an automatic escalator with the cost of living or consumer price index, and as you recall we had that as one of our alternatives under the permit fees
amendments a year or so ago. The Commission was not interested in that, but here even more so, from the staff’s point of view, that would be very burdensome to make another item to put on the calendar every year to go back and check and then we would have obligations to do paperwork with the Office of Administrative Law and also the permittees to provide notice. For the few dollars that this figure might change over time, we didn’t incorporate that.
The other change here in subsection (b)(3) was to clarify that a change in intensity of use could either be a greater or lesser intensity of use, change in use.
Minor Repairs or Improvements — this is an important regulation in that the Executive Director is authorized to grant permits for minor repairs or improvements. This regulation breaks down by the areas of the Commission’s jurisdiction what constitutes a minor repair or improvement.
And actually, these amendments are responsive to an issue raised in the enforcement audit that claimed there is too much discretion or a lack of clarity on the Executive Director’s authority in this regard. Staff worked with legal counsel to provide some more definition and update this regulation in a number of respects.
In subsection (2), the idea would be to allow shoreline protective works to incorporate levees and natural-based features as shoreline protective works as well as harder surfaces such as rip/rap and bulkheads.
It was thought in subsection (8) that we could increase or propose to increase the square footage of minor fill for improving public access.
Subsections (9) and (10) relate to the Fill for Habitat amendments to the Bay Plan that the Commission adopted last year or the year before, to authorize minor fill for habitat restoration that would cover a minimum square footage; the square footage figure here of 10,000 square feet is actually comparable to the number for shoreline protective works under subsection(a)(2), which is not on this slide, and then the new subsection (10) here is to allow excavation or dredging of a limited volume of material to enhance tidal connectivity or restore habitat on site.
Subsection (b), this is the same regulation, addresses minor repairs or improvements in the shoreline band. Subsection (b)(1) is primarily editorial, Subsection (b)(4) picks up levees and natural or nature-based features. Subsection (c) relates to salt ponds and managed wetlands; these amendments would conform to the amendments I discussed above with respect to activities in the Bay and certain waterways.
Subsection 10700 is Minor Fill for Improving Shoreline Appearance. There are a number of findings that the Commission needs to make. The focus of the amendments is specifically with respect to pre-existing residential structures.
Part of this is editorial, to break down the four subsections of this section for residential structures. The one change that I want to highlight is only a word or two, but the current regulation says that the repaired or rehabilitated residential structure would cover less of the Bay’s surface than the pre-existing structure. This has led to a situation where applicants are told, well you can rebuild or remodel, but you need to reduce, your project needs to result in one less square foot of Bay cover than the existing structure, on a theory that there should be a move to reduce the size of residential use of the Bay because these are non-conforming structures that couldn’t be permitted today.
Staff felt that as a practical matter, unless the Commission feels to the contrary, that it’s not realistic and that just allowing an equivalency, rather than trying to force applicants to reduce by a square foot or two to comply with this regulation, would be appropriate.
We have proposed to delete an existing regulation that relates to using the Bay as a design asset. This regulation relates to approving extensions of structures over the Bay on piles for two purposes; either the extension is necessary to allow actual use of the water or the extension is designed to afford occupants a feeling of closeness to the surface of the Bay.
With respect to the first part, if the extension is necessary to allow actual use of the water this regulation is not necessary because it would be a water-oriented use that could be permitted on that basis. To the extent the extension would be to allow a feeling of closeness to the Bay, there is really no support in the McAteer-Petris Act for allowing fill in the Bay so that people can feel like they’re close to the water. There is a concern that this is not supported by the law and also that it is unnecessary because to the knowledge of the current staff, this regulation has never been used by the Commission or staff to authorize a project. So, we would propose to repeal it.
This regulation was adopted after an amendment to the Bay Plan in 1987 that adopted a similar Bay Plan policy that talks about using the Bay as a design asset, which ultimately should also be repealed if the Commission agrees to repeal this regulation.
A couple more deletions — back in the 90s there was a statutorily authorized user fee for dredged material disposal that was used to help BCDC fund its participation in the long-term management strategy for disposal of dredged material. The statutory authorization for that fee expired in about 1996. BCDC has not been collecting that fee, but the regulations still talk about the fee. We propose to clean up the regulations by getting rid of the references to that fee.
Finally, on permitting, there is a standard condition that is included in probably all BCDC permits regarding permit assignment. From a legal perspective, I thought it would be helpful to put that into a regulation to make it clear to the public and permittees that they do have the right to assign a permit following the criteria set forth in this regulation, which is a slight modification of our current standard condition.
The planning amendments are the last series here. This first amendment relates to starting the process to amend the Bay Plan. This is one of the regulations where we would make it clear that notices could be sent by email and posted on the website. Also, this regulation refers to a prior regulation about who needs to get notice and we’ve had some confusion about that in the past with planning staff and thought it would be helpful to just list the agencies here so it is right up front.
The next series of amendments are comparable. The Staff Planning Report is the first step in a Bay Plan amendment process after the descriptive notice. Subsections (7) and (8) are repetitive in requiring written comments and responses on significant environmental issues, so we propose to put them both together. Then in subsection (6), clarify that the environmental assessment would contain the information described in the Commission’s CEQA regulation, section 11521.
The staff planning recommendation is the second report submitted on a Bay Plan amendment. Again, there is redundancy in terms of the summary of comments and responses and responses on environmental points, so we propose to consolidate those together in one subsection.
There is a regulation that requires applicants for a Bay Plan amendment to pay the Commission’s costs under certain circumstances. There is a requirement which, archaic might be too strong a word, but there is a requirement that the applicant submit a cashier’s check to cover a portion of the Commission’s costs as a deposit and also execute an agreement. It really is not necessary to require a deposit since the party will be contractually bound to pay anyway, but perhaps equally important, given how long these Bay Plan amendments take, we found that the cashier’s checks expire before the end of the process, so the deposit is useless because by the time we would want to cash the check it would be void. This would be eliminating that requirement and also changing the billing cycle to monthly which is what we do rather than quarterly.
This regulation relates to the Commission’s distribution of the Suisun Marsh Local Protection Program; updating the name of the Department of Fish and Wildlife, adding the Delta Stewardship Council as a party that should receive notice of these actions.
Then in Subsection (b), the regulation currently requires that the Commission publish notice for two weeks in a newspaper of general circulation. We propose to eliminate that requirement and simply require the Commission to make the information available on its website.
This Regulation 11205(a) relates to a staff recommendation on local protection program or amendments and it mistakenly refers to the Executive Director preparing revisions to the environmental assessment. The CEQA document in this case is prepared by Solano County or the local jurisdiction that is proposing a change to the LPP, not the Executive Director. To avoid confusion on that point we propose to delete that reference.
On section 11420, this relates to the contents of a local marsh development authorization, which is a permit issued by a local jurisdiction in the Marsh under the Suisun Marsh LPP. Here again, we propose to delete language which refers to a situation where there is no local protection program because there is. So, that scenario will never happen.
Finally, the last regulation also relates to marsh development permits issued by a local jurisdiction in the Marsh. The regulation currently says that an appeal may be filed by the Commission, but the statute says an appeal may be filed by either an aggrieved person or any two members of the Commission. We are clarifying that and also eliminating the reference to the situation that there may not be local protection program.
With that I will stop sharing my screen and I would be happy to answer questions now or after the close of the public hearing. Thank you very much.
Chair Wasserman continued: I believe we have one public speaker. The public hearing is open.
Mr. Robbie Powelson was recognized: Thank you. Yes, this is Robbie Powelson; I am with some mariners from Richardson’s Bay. I just really wanted you all to understand that in 2020, the BCDC needs to understand that the public trust includes respecting people’s Fourth Amendment rights and respecting the Martin v. Boise decision. Right now, you are all operating under the thought process that somehow public trust doesn’t include people’s ability to live, whether that’s anchored out or camping out at Union Point. This needs to be reconsidered by the Commission. It has to be reconsidered.
Ms. Atwell: Mr. Powelson, we are on Agenda Item 8. Do you have a public comment related to that?
Mr. Powelson: I thought it was public comment.
Ms. Atwell: No, we had that earlier in the meeting. We are on Agenda Item 8.
Chair Wasserman: I will let Mr. Powelson make remarks under public comment.
Mr. Powelson continued: Everything that you do in consideration needs to respect people’s Fourth Amendment rights and end the senseless violence that is occurring off of the Sausalito coast and in Union Point because people don’t need to be threatened right now and that’s all I have to say. My friend Jeff has comments as well.
Mr. Jeff Jacob commented: Hello, my name is Jeff Jacob and I am a mariner on Rainbow Bay off of Sausalito, California and I will speak about Marc Zeppetello’ s statutes on public access and what happened here and what is happening here, which is a systematic destruction of places to land for mariners in the historical access points of Sausalito, California as has been happening from before San Francisco was a city.
What happened at Schoonmaker’s Marina in particular to cut off public access was BCDC sent a map to Schoonmaker’s destroying the cleats and public access there for the 90 or so mariners that live on Richardson’s Bay and they said it would be replaced with access on the outside of the docks. The outside of the docks, as any mariner knows, are subject to waves and wind and in no way can dinghies or kayaks or any other kind of boat easily dock there as well as being charged $20 per day for a ten-foot boat to have public access.
BCDC ordered this, when under their charter they are to ensure public access and not to take it away. So, on Rainbow Bay and especially in their interface with Sausalito, the public access has been taken away from Schoonmaker’s, from Galilee, from Gate 5, from the fuel dock and on and on. There has been no response from BCDC to ensure the historical public access of the citizens here. Thank you very much.
Chair Wassermann continued: Thank you, sir. Comments from Commissioners?
Commissioner Ranchod spoke: Marc, thank you for that thorough review of the proposed amendments to the regulations. I appreciate you calling out that change in 10700(e), the minor fill for pre-existing residential structures. Thank you for flagging that one. I agree that making that change is pragmatic, so we allow changes that are the same size of the pre-existing structure to not hold up a project and focus our staff on really meaningful changes.
I notice that in the set of proposed changes that you reviewed we are not proposing any changes to Section 11300 to 11303; those are the enforcement procedures regulations. They are fairly brief and they are fairly broad. I am not aware as a member of the Enforcement Committee of any limitations those regulations have posed on our ability to implement the changes to our enforcement program that are in progress, but I did want to check to make sure that is the case in that we did not need to consider any amendments to that set of the regulations?
Mr. Zeppetello replied: I will remind you and others that we had a hearing on proposed amendments to the enforcement regulations in October and there have been changes proposed to every single regulation in the enforcement regulations. The Commission authorized the rulemaking process on amendments to the enforcement regulations. We actually submitted those just this week to the Office of Administrative Law to start the rulemaking process. Sanjay, I could send you that. That is out there and there will be a public hearing on that before the Commission on February 4. If there are specific issues with those regulations that you would like to bring to our attention or you want to comment on there will be plenty of opportunity to do that, it is just a separate rulemaking from this one.
Commissioner Ranchod acknowledged: I am aware of those. What I should have been clear about is that we are not proposing any additional changes to what was already reviewed with the Commission and that is already teed up.
Mr. Zeppetello answered: Correct.
Commissioner McGrath commented: I read these pretty carefully over the weekend. I appreciate that most of them are fairly simple cleanups. I also appreciate and support the idea that where we can cut a little red tape we should.
I want to highlight for you one thing that is not necessarily inconsistent with changing your minutes but a problem and an issue. I have been a permit applicant and I have been an advocate or worked with people that were interested, and so one of the really important considerations is how to interpret a permit. I have run into this and I have sent Marc emails about what happened on really old permits in the middle of the pandemic and the answer was, hard to tell.
The advantage of the really high-quality minutes we have right now is it is pretty clear what decisions turn on and whether or not a condition is required in order to find something consistent. But both for an applicant and for an interested party, they are going to want to know at the end of the day, is there something there that they have either in terms of rights of access that they may have gained or lost or responsibilities as a permit applicant and of timing?
The advantage of a Zoom meeting is that a Zoom recording is far more accurate and takes up less space and is cheaper. I am not going to make a comment about how they should be changed. I just want you to give some thought to that as you pursue it. I think in general the Commission’s process in attention to establishing findings that articulate the reasons, in addition to the conditions themselves, is important. I think some of this could be covered just by helping that practice, but I just thought I would give you that perspective of somebody that has been a Commissioner, an applicant, and trying to figure out whether or not there was something that benefited my public-access folks.
Commissioner Butt spoke: I wanted to talk about the ex parte part of this. It looks to me like it has gone from confusing to more confusing. I am trying to recollect what I saw there but it talks about ex parte communication being prohibited and then you have got all these processes for what you have to do if in fact you do have ex parte communication. It is ambiguous and it is internally inconsistent. Ex parte communication, it is either prohibited or it is not prohibited. The way you have it now it is prohibited but it is okay if you disclose it. I think that instead of saying prohibited you should say it is discouraged or something like that and then have a process for dealing with it.
Ideally, I think it ought to be prohibited. I think that people just should not participate in it. We all have a choice of whether we want to participate in an ex parte communication. It is not forced on us. We do not have to listen to anybody. And so, it is our choice whether we want to do it or not. If we choose to do something that is prohibited but there is a cure for it, it just makes no sense. I have brought this up before and I do not think it is getting better, it is getting worse.
Executive Director Goldzband added context: Let’s remember that what we are talking about here and what we are going to ask you to vote on is not the substance of what you have seen. It is to begin a process through which the public and you will comment on these regulations through a very public process and then we will come back with an edited version based upon what we have heard. Marc, I just want to make sure I am correct in the way I said that without any legal terms?
Mr. Zeppetello concurred: Yes, that is correct.
Executive Director Goldzband continued: I would encourage staff to say, we hear you, we will work on this and we look forward to you providing comments, as opposed to debating today whether the proposed amendments are in a good, final form.
Commissioner Scharff commented: Two things; something small first. On 10504, I have never actually heard the Executive Director give a staff recommendation to the Commission. It is a little thing, but I think it should say, Executive Director or his designee, in case someone ever raises it as a point. I know it is sort of silly, but since we are cleaning it up, I think I would do that. So that is one comment.
The other comment is sort of broad and I do not know if this is somewhere in the regulations, but at the moment if we have a Commission meeting and we vote and we have a quorum, you still have to have a majority of all of the Commissioners to vote for something. Is that in our regulations? Because if so, I would like to change it to be a majority of those present. Sometimes you could have three or four Commissioners, or frankly you could have one Commissioner vote against something and stop something where the rest of the Commissioners want it who are present, and if other Commissioners had been there they may or may not have voted for it. It just seems like a bad result. So, where is that?
Mr. Zeppetello asked for clarification: Can you clarify, I did not hear? Where is it that you were saying it says a majority?
Commissioner Scharff explained: We have seen that before. Our rule is you have to have a majority of all of the Commissioners to vote for a project, right - to vote for something for it to pass. We saw that on the hotel, for instance. I don’t know if you remember the hotel vote where there were a few short, four or five, and the five prevailed because you do not have a majority of the Commissioners, you have a majority of those present; in fact, you have almost all of those present. So, we can have the situation when we vote where one or two Commissioners vote no and something goes down to defeat. I am wondering where that is?
Because if so, if that is the regulation, I would like to change it. I think it should be a majority of the Commissioners present once you have a quorum, not a majority of all Commissioners.
Mr. Zeppetello commented: I can respond to that. I think what you are referring to is in the McAteer-Petris Act, that if you are voting on a permit, 13 affirmative votes are required to issue a permit, for a major permit anyway. But I believe that in all other situations it is a majority of those Commissioners present. There is also a specific requirement for a Bay Plan Amendment, where in certain circumstances it requires 18. But those are in the McAteer-Petris Act, not the regulations.
Commissioner Scharff responded: That is good clarification, I appreciate that. Because you brought that up in these regulations when you were talking about doing the findings. So what you are really doing is you are trying to figure out a way to support a minority of the Commission on coming up with the findings when the majority disagrees with those findings because the Commission denies the permit because you do not have 13 votes. What is a quorum of our Commission, it is how many?
Mr. Zeppetello replied: I think it is 14.
Commissioner Scharff acknowledged: Right. So, if you had 14 Commissioners there and you need 13 votes, and two voted no, what you are setting up during these regs is then for the Commission to support two Commissioners on their findings against the other 12 Commissioners. I do not think that is right. I think the right thing to do then would be that the item gets put off until you have more Commissioners, frankly, because you should not be supporting the findings of two Commissioners over the findings of 12. I suppose under the regulations each Commissioner could read in why it is wrong but that opens BCDC up to legal challenge. It just seems like there is something wrong there that we should fix. I am not suggesting what the solution is except for I do think we should not just deny it, we should come back when there are more Commissioners, frankly, on those close votes. Because one or two Commissioners should not be able to stop a project just because it was scheduled at a time when other people could not make it.
Chair Wasserman added: I agree with the issue and we will work with staff on addressing that.
Commissioner Scharff responded: All right, thank you.
Commissioner Eisen commented: Umbrella question first. I understand from what Marc and Larry said that we are in the beginning of a process and that there will be opportunity for us and for the public to provide comments. I have a couple of questions and comments but I am wondering, is this the only forum that we have to provide those or are you suggesting that we get in touch with Marc and ask our minor questions and make our minor points or do we do that today and no other time?
Mr. Zeppetello explained: I would say that if there are specific comments, especially if it is fine-tuning, editorial suggestions, that it would be fine to communicate those to me directly.
Commissioner Eisen continued: Thank you. I think most of my comments and questions are kind of fine-tuning type things, so I am happy to just talk to you about that.
The one sort of larger question I have is about ex parte communication, which is very confusing, as some others have pointed out. Are we proposing to add a regulation which would allow a Commissioner to essentially avoid the reporting requirement by responding in a particular way to someone who has approached the Commissioner urging them to take a position or however that ex parte communication is delivered? Are we now in a position, each of us as Commissioners, to avoid having to report when Zack asks us in the meeting, as long as we have satisfied ourselves that we have said to the person, I am sorry, I can’t respond to you, that’s against our rules, thank you for your input, et cetera? Are we going to be able to do that forthcoming if this regulation goes through?
Chair Wasserman clarified: You have the right and ability to do that now. There is an inconsistency. I can’t remember whether it is Bagley-Keene or McAteer-Petris, where there is a clear contradiction that Commissioner Butt pointed out. But you can absolutely say to someone who indicates they want to talk to you about something that you cannot hear them. It is as much the hearing them, or even more the hearing than what you might say to them. The fundamental purpose being so that the public who may be interested in the issue knows what information and facts have been presented to the public body. The difficulty is it is often difficult to cut off communication with someone who is a constituent of yours. But you have the absolute right to do that. The reporting is the fall back when for whatever reason that doesn’t happen.
Mr. Zeppetello added: And what we are saying by one of the amendments is that if the communication is a public comment letter, or even if it is not to all Commissioners but to you, and it’s a written communication that you don’t respond to or just acknowledge, you wouldn’t have to report it. So, we are making that clear. But if you do engage in an impermissible ex parte then you have to report it. Chair Wasserman, if there is a conflict you see in the statute, I’d like to talk to you about that.
One of the general responses I will make is it that I feel that this is really the Government Code; if there is confusion, if there is an inconsistency, it’s in the Government Code. I don’t know that we have the power to really do much different. I am open to considering whatever comments are made.
Chair Wasserman stated: We can talk about it offline.
Commissioner Showalter was recognized: I want to comment briefly about the website.
I think the idea of posting things on the website is excellent but give some thought to the specific language. All websites are not created equal. Some of them are very, very difficult to search and some of them are not.
I think that our idea is to present this information to people probably on the home page or very close to it, not five layers down. So, figuring out some way to make it easy to find is — and it should be more than just on the website. Thank you.
Chair Wasserman continued: I would entertain a motion to close the public hearing.
MOTION: Vice Chair Halsted moved to close the public hearing, seconded by Commissioner Randolph. The motion carried by a show of hands vote with no abstentions or objections.
Chair Wasserman announced: The public hearing is closed.
Regulatory Director Brad McCrea commented: I want to back a little bit to the number of votes needed for project approval. I want to point out one thing. As the director of the Regulatory Program after 20 years of experience of seeing projects get approved this is an important point to spend a moment on. And then we will go away and think about whether it could be better.
Commissioner Nelson spoke to the staff earlier this week and he talked about the size of the Commission. BCDC is unique. It is 27 Commissioners. And the reason 13 votes are needed for project approval is because two of the Commissioners don’t vote, the federal appointees don’t vote. So, you have 25 voting members — one more of half of that is 13. And those 13 votes represent a regional consensus that a project should go forward. The uniqueness of BCDC and the power of this Commission lies in getting those 13 votes which represents a vote of approval in consensus around the region.
So, I would put forward that we will think about this, but if you have a quorum of 14 and you only have eight ayes and the ayes have it — I’m not sure eight is a regional consensus. So, that is something to think about.
Chair Wasserman continued: Thank you, Brad. That concludes Item 8. Marc, will you please make the Staff Recommendation.
Mr. Zeppetello stated: The staff recommends that the Commission authorize staff to initiate the rulemaking process in accordance with the Administrative Procedure Act to propose the adoption of the proposed amendments described in the Staff Report dated December 4, 2020.
MOTION: Commissioner Wagenknecht moved approval of the staff recommendation, seconded by Commissioner Ranchod.
The motion carried with a vote of 22-0-1 with Commissioners Addiego, Ahn, Butt, Eckerle, Eisen, Gioia, Gorin, Peskin, Ranchod, Randolph, Sears, Showalter, Wagenknecht, Ziegler, Gilmore, Scharff, McGrath, Pemberton, Vasquez, Hillmer, Vice Chair Halsted and Chair Wasserman voting, “YES”, no “NO” votes, and Commissioner Williams voting “ABSTAIN”.
- Briefing on Enforcement Program. Chair Wasserman introduced the briefing on the Commission’s Enforcement Program by Priscilla Njuguna of BCDC staff.
Enforcement Policy Manager Njuguna addressed the Commission: She greeted the Commissioners and informed then that she was providing a cumulative Enforcement Program update for 2020 emphasizing the impact that recent program improvements have made in enabling case resolution.
She began using the presentation outline and informed the Commissioners that case resolution data would be provided in table form as well as pictorially using pie charts.
She reiterated the enforcement goals of deterrence, transparency, consistency and fairness which were defined in the presentation. She noted that staff resolve cases with an eye toward deterring others from similar conduct. She then noted the importance of transparency in process for members of the public to be informed of enforcement efforts and how the impact BCDC’s mission. She then discussed the importance of building consistency in process so that similarly situated people have an inclination how cases will be resolved. She concluded the discussion of goals by noting that in terms of fairness staff treat violations that are similar in nature and impact the same or similarly, which doesn’t necessarily translate into the same outcome but it is what staff aim for.
Ms. Njuguna then discussed the Enforcement Committee’s contributions in 2020 in the 15 meetings held in 2020 in contrast to previous years when the Committee met four or five times a year. Among the program improvements that have been achieved have been case prioritization, focusing enforcement efforts on the cases that represent the most harm to the Bay and/or the most significant limitations on public access.
Other improvements included development and improvement of the written case review and case management procedures. These procedures have streamlined the case resolution process and met the enforcement goal of building consistency in process and a level of transparency in how cases reported are addressed and solved.
She informed the Commissioners that the Enforcement Committee also reviewed and approved two proposed orders and a potential settlement agreement. Further, the Committee received presentations on the proposed amendments to the enforcement regulations and the administrative civil-penalty policy which will both be part of the rulemaking process that has been initiated following the Commission’s approval.
She also informed the Commissioners that staff provided the Committee quarterly written updates on the resolution of oldest enforcement cases, those opened before 2000, have been resolved from 8 cases to the remaining 4 cases. In addition, she informed the Commissioners that the Committee also receives quarterly written updates on case resolution progress. The update specifies the cases that were solved, those reported, those closed and how they were closed as well as noting the different significant or challenging things that staff faced during the quarter.
She mentioned the Governor’s signature in September of AB 2809 new legislation that included a provision requiring enforcement resolution within a specific timeline. The Case Management Procedures that have been implemented include particular milestones during case resolution that have a timeline of specified days for completed.
Ms. Njuguna then explained the contents of the case resolution summary table. She noted that the caseload had decreased from 271 cases in April to 230 in December. She also explained that because cases are resolved in a systematic way with different cases status codes along the way progressing from when cases are reported to when cases are closed. She explained that because of this progression towards resolution the number of cases actively being pursued has decreased from 19 over time to 12 as more cases evolved into the pending case resolution case status code as they progress towards the eminent resolution status code which is the last code before a case is closed.
She then explained the old cases which were opened prior to 2017 which have been reduced from 139 in April to 115 in December. She reiterated that 4 of the oldest cases opened prior to 2000 remain. She noted that there was one Cease and Desist Order issued in October of 2020 in the Union Point Park matter. There were 32 cases that had been opened as of April and 99 as of December. She informed the Commissioners that there was a substantial increase in the number of cases reported in 2020 during the pandemic as members of the public were using public access areas. A number of cases were reported multiple times and such reports were consolidated into one case for resolution hence the increase in cases closed. Further she explained that while historically approximately 41 cases were closed per year duplicate reports were not assigned case numbers which they are being assigned now for better record keeping which is why the number of reports received and the number of cases closed have both increased in 2020. She noted that 41 cases had been closed as of April whereas 147 had been closed as of December. Ms. Njuguna then presented the same information using pie charts for April, August, October and December 2020.
Ms. Njuguna concluded the presentation by noting the remaining initiatives to improve the program including finalizing amendments to the enforcement regulations, obtaining an integrated database that would enhance efficiency and dedicated compliance staff which are being delayed by a lack of funding as staff continue to resolve cases and make the best use of the resources that are available.
Ms. Atwell, the meeting host, announced that there were two speakers for public comment.
Mr. Robbie Powelson asserted that he thought the Enforcement Committee’s actions were really hurting people’s lives. The Cease and Desist Order at Union Point, the threats and the hardline tactics on Richardson Bay where BCDC is threatening people’s homes and their communities. He claimed that BCDC has become a merchant of police violence in the name of some self-serving definition of conservation. He states that he thought that some of the biggest violations of people’s Fourth Amendment rights were happening and claimed BCDC doesn’t see the impact they have on real people living real lives. He could not comprehend why BCDC does but was hoping the community can educate BCDC.
Mr. Jeff Jacob commented ho directed his comments to Executive Director Goldzband.
He compared the story of Jacob and Esau to the Richardson Bay enforcement matter And claimed that BCDC should only intervene when self-government fails.
He asserted the local community could self-govern using a small-craft harbor district which he claimed would take the Richardson Bay matter off BCDC’s shoulders and the guilt of causing pain to the most vulnerable people in the Bay.
Ms. Ember Kraus spoke and said she was calling in solidarity with the residents of Union Point. She claimed that she had been looking really closely at the Cease and Desist Order and noticed that the City of Oakland was violating order terms including providing portable toilets, wash stations and weekly garbage pickup, fixing the broken bathrooms and lights that the City has failed to do despite numerous requests. These amenities have been completely neglected by the City and the BCDC has explicit authority to hold the City accountable and fix the Cease and Desist violations. She reminded Executive Director that he has the power to not put people’s lives at risk. She stated that she wanted public spaces to be safe and their ecosystems to thrive, but evicting people living on public, destroying their shelters and possessions not only at Union Point but also within Richardson Bay and offering no permanent, alternate shelter, only temporary shelter was offered, felt really unfair to her and to her comrades. She claimed that Brock de Lappe the harbormaster who corresponds with BCDC makes the residents of the Union Point Park feel very unsafe. She claimed the City is violating BCDC’s Cease and Desist Order, that BCDC can make the lives of folks trying to shelter in place while unsheltered a little bit easier like basically immediately and she wanted BCDC to reconsider just how BCDC is going through it.
Executive Director Goldzband obtained permission from the Commission Chair to ask Mr. Abad to host the meeting after Ms. Atwell lost her connection.
Rainbow Bay (real name Richardson Bay) Resident spoke (name not given) said she was a San Francisco State music student and sung a message to BCDC.
(Singing) Let’s stand up for this idea, let’s act to improve the lot of all. Strike out against injustice, send forth the tiny ripple of hope. Crossing each other from the million different centers of energy to stop home destruction on Rainbow Bay.
It is the right of the people to be secure in their person’s houses. Papers and effects against unreasonable searches and seizures shall not be violated. No warrant shall be issued upon probable cause by oath and Amendment Four. Stop home destruction on Rainbow Bay. Stop home destruction on Rainbow Bay.
Crossing each other from a million different centers of energy. Daring those ripples build a current that can sweep the mightiest walls of oppression and resistance but stop home destruction on Rainbow Bay.
It is the right of the people to be secure in their person’s houses. Papers and effects against unreasonable searches and seizures shall not be violated. No warrant shall be issued upon probable cause by oath and Amendment Four. Stop home destruction on Rainbow Bay. BCDC stop home destruction on Rainbow Bay.
Elias commented (no last name given) and said he was voicing his support for all of those people who are living in precarious conditions because of authority figures in the Bay Area collaborating with violence workers like sheriffs, police officers, harbormasters, who are destroying people’s homes and making their lives unlivable during a pandemic. He asserted that societies are judged by how they take care of those who have the lowest means, and so he hoped that people on the Commission consider that when they make decisions that produce serious dangers in the lives of people who are very much on the edge. He asked the Commissioners to think about how hard it is for folks who might have a couple of kids and live out on a boat and don’t have anywhere else to go and the harbormaster comes and puts a tag on their boat that it is going to be destroyed. He asked what those actions would do the children and how it would affect their psychology. He hoped the Commissioners would take that into account when they make their decisions.
Chair Wasserman asked for comments from Commissioners.
Commissioner McGrath inquired from Ms. Njuguna, requested an answer from both the perspective of somebody who has had a violation complaint issued against them and somebody who reported a violation.
So, I am John Q. Public citizen and I see something where I thought that an access path where I ride my bicycle has been closed. This might be a compliance issue or an enforcement issue and there is some overlap. So, I send an email to Larry Goldzband or I send a letter in and I say, there is this problem. How does the person reporting the issue find out what is going on? How do they know when this matter might be resolved? The same question I think goes to somebody who has had a compliance question or an enforcement question. They own it. They do not think it is a legitimate concern, but they are worried that it might be a cloud on their ability to sell their property or to rent some of their units. How do people who are not inside BCDC find out the status of what is going on?
Ms. Njuguna answered by beginning with the blocked public access path scenario which fit squarely within Enforcement and is what staff typically received as complaints. Staff get the report, they investigate what permit is applicable, find the permit number, find out the permittee, reach out to the permittee, let them know that they are violating a particular provision of the permit and that they need to restore public access within a set time frame. If we get no response then we can send out a 35-day letter that says, you will start accruing fines if the blocked public access is not restored within a specified timeframe.
For the person who reported the issue updates are available through calling BCDC through daily inquiry calls where members of the public call in and members of staff on a rotational basis answer questions from members of the public about different concerns that members of the public might have. BCDC’s main phone number is used for inquiry calls Enforcement staff get an email or a call that a member of the public needs an update and staff respond.
For a member of the public looking to bring their property into compliance in preparation for a sale, we investigate the associated permits for the property and all open enforcement cases. We provide the permittee with a copy of the permit that was issued for that particular location and if there are any open enforcement cases we will inform them how to resolve the enforcement cases since permits run with the land and are enforceable against new owners. For example, if there was a Cease and Desist Order on the property, it would not name the new owner but the same underlying permit issues will be true and so the new owner needs to be informed of and deal with the enforcement concerns raised in the previous owner’s cease and desist order. If a permit amendment is needed we will inform the former owner.
Commissioner McGrath found the response quite helpful. Standard procedure is if something comes in, say that it is a violation, the permittee/applicant is notified?
Ms. Njuguna answered in the affirmative.
Commissioner McGrath expressed gratitude for the response.
Chair Wasserman asked for questions from any other Commissioners. No additional comments were made which concluded the item. The Chair thanked Ms. Njuguna for her presentation.
That brings us to a motion to adjourn.
- Adjournment. Upon motion by Commissioner Ahn, seconded by Commissioner Butt, the Commission meeting was adjourned at 3:43 p.m.
MOTION: Commissioner Wagenknecht moved approval of the Minutes, seconded by Commissioner Peskin.
The motion carried by a show-of-hands vote with no opposition and Commissioners Hillmer and McGrath abstaining.