Applying the environmental justice policies in permitting

The following information is intended to provide guidance to applicants or others involved with BCDC permitting on the provisions set forth in the Bay Plan environmental justice and social equity policies. This information is provided to assist applicants, but is not binding on the Commission’s discretion or determinative of the issues addressed in this document. When the Commission is evaluating a permit application for a specific project, the Commission retains full and ultimate discretion in interpreting and applying the Bay Plan environmental justice policies, as well as other policies in the Bay Plan, in a manner consistent with the Bay Plan, the Commission’s regulations, and statutory authority.

What are “environmental justice” and “social equity”?

• Bay Plan Environmental Justice and Social Equity Finding E states, “The State of California defines environmental justice as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.” (California Government Code §65040.12(e)).”
• Bay Plan Environmental Justice and Social Equity Finding F states, “According to the U.S. Environmental Protection Agency “fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.” (Guidance on Considering Environmental Justice During the Development of a Regulatory Action).”
• Bay Plan Environmental Justice and Social Equity Finding G states, in part, that “In its 2017 General Plan Guidelines, the Governor’s Office of Planning and Research includes the following definition for social equity: “The fair, just, and equitable management of all institutions serving the public directly or by contract; the fair, just and equitable distribution of public services and implementation of public policy; and the commitment to promote fairness, justice, and equity in the formation of public policy.” (Governor’s Office of Planning and Research 2017 General Plan Guidelines).”

How does BCDC consider environmental justice and social equity in its decision-making?

• The concepts of environmental justice and social equity are now included in a stand-alone section of the Bay Plan and have been integrated into the Public Access, Shoreline Protection, and Mitigation sections.
• Demonstrated consistency with the McAteer-Petris Act and the Bay Plan is required in order for a permit to be granted, and an applicant would thus need to demonstrate consistency with the Bay Plan policies related to environmental justice and social equity.

Will BCDC’s environmental justice and social equity policies be considered in the review of my project?

This depends on the scale and scope of the project. The subsequent answers can help answer this question.

For which types of projects should an applicant demonstrate “meaningful community involvement”?

• Major projects and appropriate minor projects in underrepresented, and/or identified vulnerable and/or disadvantaged communities (Bay Plan Environmental Justice and Social Equity Policy 3)
• Public access projects that substantially change the use or character of a site (Bay Plan Public Access Policy 5)
• Shoreline protection projects other than maintenance and in-kind repairs to existing protection structures or small shoreline protection projects (Bay Plan Shoreline Protection Policy 2) 
• Mitigation associated with major projects and appropriate minor projects (Bay Plan Mitigation Policy 3)

What are examples of “appropriate minor projects” (as is mentioned in Bay Plan Environmental Justice and Social Equity Policy 3 and Bay Plan Mitigation Policy 3) that require meaningful community involvement?

“Appropriate minor projects”are projects that require a minor (or administrative) permit that could be determined by BCDC to be appropriate for meaningful community involvement. While BCDC staff review a variety of project types and sizes in administering minor permits, the Commission has determined that equitable, culturally-relevant community outreach and engagement should only be conducted for certain minor projects in underrepresented, and/or identified vulnerable and/or disadvantaged communities. The Commission determined that discretion is necessary in this regard when reviewing minor permit applications because a more prescriptive policy, either requiring meaningful involvement or eliminating the requirement for all minor projects, could not only hinder the Commission’s ability to effectively implement environmental justice and social equity, but also potentially burden applicants and communities unnecessarily. It is likely that certain projects with public access components and/or public health and safety concerns could require meaningful public involvement. (See Bay Plan Public Access Policy 5 and Bay Plan Shoreline Protection Policy 2.) Contact BCDC staff to help determine whether your project may require meaningful community involvement.

What are vulnerable, disadvantaged, and underrepresented communities and how do I identify them?

• The Bay Plan defines vulnerable communities in Bay Plan Environmental Justice and Social Equity Finding H by stating, “The Commission recognizes that due to historic and ongoing marginalization, social and economic structures influence a person or community’s ability to prepare for, respond to, or recover from a flood event. In the context of environmental justice, very low-income communities and/or communities of color are particularly important, as these demographic factors compound other relevant indicators. The co-location of areas with current and future flood risk and high concentrations of households exhibiting factors that can reduce access to or capacity for preparedness and recovery are therefore considered vulnerable. Additionally, contamination indicators are included in measuring vulnerability. These indicators represent degradation or threats to communities and the natural environment from pollution. The presence of contaminated lands and water raises health and environmental justice concerns, which may worsen with flooding from storm surge and sea level rise, as well as associated groundwater level changes”.
• To identify a vulnerable community, please consider BCDC’s Community Vulnerability Mapping Tool.
• Bay Plan Environmental Justice and Social Equity Finding H defines disadvantaged communities as, “… including, but not limited to “[…] (a) Areas disproportionately affected by environmental pollution and other hazards that can lead to negative public health effects, exposure, or environmental degradation; and (b) Areas with concentrations of people that are of low-income, high unemployment, low levels of home ownership, high rent burden, sensitive populations, or low levels of educational attainment.” (California Health and Safety Code §39711)”
• To identify a disadvantaged community, please consider CalEPA’s CalEnviroScreen tool
• BCDC staff is not aware of any specific mapping tool that identifies underrepresented communities, unlike the tools that identify disadvantaged and vulnerable communities noted above. Bay Plan Environmental Justice and Social Equity Finding H states that underrepresented communities are “those who have been historically and are still systematically excluded from political and policy-making processes, which includes many disadvantaged and vulnerable communities.” Mapping tools may exclude very small communities or transient communities. The use of the term “underrepresented communities” allows for capturing these vulnerable and/or disadvantaged communities who may not be included in the mapping tools noted above.

What are examples of “substantial changes in use or character” of public access areas that will need to have meaningful community involvement as set forth in Bay Plan Public Access Policy 5?

• “Substantial change in use” is defined in BCDC’s Regulations. 14 CCR § 10125(b) states that “Substantial change in use” includes any one of the following:
  • as to other areas within the Commission’s McAteer-Petris Act jurisdiction, any construction, reconstruction, alteration, or other activity, whether or not involving a structure, if the activity either:

1. 1. 1. Has an estimated cost of $250,000 or more;
      2. Involves a change in the general category of use of a structure or of land, i.e., agriculture, residential, commercial, office, industrial, recreational, vacant non-use, etc.;
      3. Involves a substantial change in the intensity of use;
      4. Adversely affects existing public access or future public access as shown on any Commission permit, the San Francisco Bay Plan, any Commission special area plan, or any other Commission planning document; or
      5. Is any subdivision of land pursuant to the Subdivision Map Act (Government Code Section 66410 et seq.) or other division of land, including a lot split, where the subdivision or other division of land will substantially affect either present or future public access to or along the shoreline or substantially affect either the present or future suitability of a water-oriented priority land use site for that priority use, but not a subdivision or other division of land that is brought about in connection with the acquisition of an interest in such land by a public agency for wildlife habitat, marsh restoration, public recreation, or public access.”

• “Substantial change in character” is not defined in BCDC’s Regulations but could include substantial changes to the identity, attributes, features, essence, nature, or accessibility of the public access. While substantial change in character will be determined on a case-by-case analysis, the character of a public access area could be a factor in how welcoming that area is to various communities.

What are examples of “small shoreline protection projects” that are not subject to the meaningful community involvement requirement included in Bay Plan Shoreline Protection Policy 2?

Small shoreline protection projects could include projects eligible for regionwide permits in accordance with BCDC’s Regulations (14 CCR Section 11700). As set forth in the regulations, these include reconstruction, replacement, and maintenance of bulkheads and seawalls; and protection structures for single/two family homes. Small projects could also include pilot shoreline protection projects. 

How do I show that my project included meaningful community involvement?

Per applicable Bay Plan policies (e.g., Environmental Justice and Social Equity Policy 3; Shoreline Protection Policy 2; Public Access Policy 5; Mitigation Policy 3), you should demonstrate that you conducted equitable and culturally relevant outreach and engagement for your project. This should include steps taken to involve underrepresented, disadvantaged, and/or vulnerable communities. Additionally, you will need to provide evidence of how community concerns were addressed. You may want to describe your outreach and engagement efforts and processes in your application by including a description of feedback provided and information on how you did and/or did not incorporate this feedback. Your description could also include any outstanding community concerns.

BCDC’s Community Vulnerability and Community Based Organization Directory Map can be a useful resource for identifying local organizations to consider partnering with when conducting meaningful community involvement. Please contact GIS@bcdc.ca.gov if you have questions about using the tool.

What are some best practices, guidelines, and resources on how to meaningfully involve communities in my project?

• According to the U.S. Environmental Protection Agency (EPA) and as included in Bay Plan Environmental Justice and Social Equity Finding I, meaningful involvement indicates that:
  • “People have an opportunity to participate in decisions about activities that may affect their environment and/or health;
  • The public’s contribution can influence the regulatory agency’s decision;
  • Community concerns will be considered in the decision-making process; and
  • Decision makers will seek out and facilitate the involvement of those potentially affected.”
  • The following table provides resources for applicants to inform outreach and engagement efforts.

How do I identify disproportionate project impacts as is referenced in Bay Plan Environmental Justice and Social Equity Policy 4?

• Since 1983, studies have routinely found that communities of color and low-income communities face disproportionate environmental burdens, compared to white and affluent populations nationwide. These burdens have largely been measured by proximity to hazardous waste facilities that cause adverse health and environmental impacts. Most recently (2018), the U.S. EPA found that facilities emitting air pollution disproportionately affected communities of color and low-income communities in the U.S. Specifically, non-whites had a 28% higher health burden from particulate air pollution (African-Americans, specifically, had a 54% higher burden), and those living in poverty had a 35% higher burden, than the overall population.
• Identifying and mitigating for disproportionate project impacts is a key step in ensuring fair treatment with respect to project permitting outcomes. As defined in Bay Plan Environmental Justice and Social Equity Finding F, “fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.” Fair treatment is a core component of environmental justice, which is defined in Bay Plan Environmental Justice and Social Equity Finding E as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.”
• Additionally, in the U.S. EPA’s Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (PDF), section 3 discusses key analytic considerations for determining a potential “EJ concern.” An EJ concern is defined as the actual or potential lack of fair treatment or meaningful involvement of minority populations, low-income populations, tribes, and indigenous peoples in the development, implementation and enforcement of environmental laws, regulations, and policies. Section 4 details contributors to potential EJ concerns. Section 6 includes various methods for analyzing potential environmental justice concerns.
• In the U.S. EPA’s Promising Practices for EJ Methodologies in NEPA Reviews (PDF), the authors compiled methodologies gleaned from current agency practices concerning the interface of environmental justice considerations through National Environmental Policy Act (NEPA) processes. Chapter 1 contains guiding principles and specific steps for meaningful engagement. Chapter 3 includes guiding principles and specific steps for defining the affected environment of a project. Chapter 7 contains guiding principles and specific steps for the project impact analysis, and Chapter 8 includes guiding principles and specific steps to understand disproportionately high and adverse impacts of a project.

How will the Commission use the new guiding principles as are referred to in Bay Plan Environmental Justice and Social Equity Policy 1?

As is included in Bay Plan Environmental Justice and Social Equity Policy 1, “The Commission’s guiding principles on environmental justice and social equity should shape all of its actions and activities.”

How do I identify and avoid potential adverse adjacent impacts of my proposed shoreline protection structure as is referred to in Bay Plan Shoreline Protection Policy 1?

• Bay Plan Shoreline Protection Finding G states, “Some hardened shoreline protection structures may intensify wave reflection and contribute to shoreline erosion and overtopping at adjacent or nearby vulnerable areas. At all sites, but particularly at sites in or adjacent to lower income communities that may lack resources to adequately protect their shoreline, it is important to design projects to minimize such impacts. Given the appropriate site conditions, natural and nature-based shoreline protection methods can dissipate wave energy more effectively than certain types of hardened shoreline protection structures, diminishing wave reflection impacts such as accelerated erosion and flooding in adjacent or nearby areas.”
• In addition to evaluating the requirements of Bay Plan Shoreline Protection Policy 1 subsections (a) through (e), professionals knowledgeable of the Commission’s concerns, such as coastal engineers or civil engineers experienced in coastal processes, can help identify whether a proposed shoreline protection structure, if allowable, would increase reflection of incident wave energy at the site. Reflected wave energy from new shoreline protection structures could have adverse impacts on adjacent or nearby areas by leading to increased wave energy, height, or run-up, that would result in increased erosion or flooding in those areas.
• If site conditions allow, adjacent impacts from approvable shoreline protection structures can be decreased through the design of the protection structure. Specifically, the slope and surface of the protection can help control the intensity of wave reflection. Harder shoreline protection structures with vertical walls and smooth, impermeable surfaces such as seawalls, revetments, and levees can have detrimental impacts by creating more wave reflection. Conversely, sloped protection structures with permeable surfaces will absorb and dissipate wave energy, reducing wave reflection and adverse impacts. Many natural and nature-based solutions are specifically designed to attenuate wave energy, primarily through submerged aquatic vegetation, such as eelgrass, and sedentary animal material, such as oysters.