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San Francisco Bay Conservation and Development Commission
Its Failure to Perform Key Responsibilities Has Allowed Ongoing Harm to the San Francisco Bay

Report Number: 2018-120

Figure 1
The Commission's Jurisdiction Includes Both the Bay and Its Shoreline

Figure 1 is a map showing commission’s jurisdiction, which covers the entirety of the San Francisco Bay and some surrounding land. The mixed land and water area in the Northeast corner of the commission’s jurisdiction is the Suisun Marsh and accounts for roughly 25 percent of the commission’s jurisdiction. The total area outlined on the map is 770 square miles, and its perimeter is 950 linear miles. The map is based on commission planning data and it shows both the commission’s legal jurisdiction and areas subject to commission planning activities..

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Figure 2
The 27 Commissioners Represent Varied Bay Area Interests

Figure 2 is a chart that shows the commissioners grouped by the interests they represent. Each of the nine Bay Area counties -- Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma – have one commissioner as a representative. Five commissioners represent state agencies – the California State Lands Commission, the San Francisco Bay Regional Water Quality Control Board, the California Department of Transportation, the Department of Finance, and the California Natural Resources Agency. For commissioners represent the Association of Bay Area Governments. Two commissioners represent federal agencies – the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. Two commissioners represent legislative interests – the Speaker of the Assembly and the Senate Rules Committee. The Governor appoints the remaining five commissioners.

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Figure 3
State Law Describes the Commission's Enforcement Process

Figure 3 is a flow-chart showing the commission’s staff-level enforcement process and formal enforcement process. After receiving a report of a violation, commission staff open a case and assess harm to the Bay or public access. In cases with no significant harm, staff-level enforcement begins and staff send a 35-day notice to the alleged violator requesting corrective action. If the violation remains unresolved after 35 days, standardized fines begin to accrue on the 36th day. If the violator resolves the violation, staff assesses a standardized fine based on the number of days that have passed after the 35th day, and closes the case, without the involvement of the commissioners, upon receiving the fine. If the violator does not resolve the violation or pay the fine, or if the violation results in significant harm to the Bay, staff initiate formal enforcement proceedings and send a violation report and recommended enforcement decision to the enforcement committee. After a hearing, the enforcement committee recommends a decision to the commissioners, who vote on the enforcement committee’s recommendation. The commission closes the case when the violator meets the terms of the decision and pays any penalties; if the violator refuses to pay, the commissioners may refer the case to the Office of the Attorney General.

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Figure 4
The Commissioners and Staff Have Roles in the Permitting and Enforcement Process

Figure 4 is an organization chart showing various entities’ roles in the commission’s permitting and enforcement processes. In the permitting process, staff approve most permit applications at the staff level, but forward major permit applications to the commissioners along with a recommended decision. The commissioners approve or reject major permit applications. During enforcement, commission staff receive reports of violations or unauthorized Bay activity and attempt to resolve issues at the staff level through the standardized fines process, but initiate formal enforcement if the violation results in significant harm to the Bay, parties do not reach agreement, or issues remain unresolved. During formal enforcement, staff and staff counsel present the case to the enforcement committee, a subset of the full commission of up to six members, which holds hearings and recommends a decision and a penalty to the commissioners. The commissioners accept or reject staff or enforcement committee recommendations to make the final decision on formal enforcement cases. The Office of the Attorney General acts as counsel to the enforcement committee and commissioners during enforcement hearings and litigates cases as necessary to collect penalties approved by the commissioners.

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Figure 5
Since 2014 the Commission Has Allocated Limited Resources to Enforcement Staff

Figure 5 is a bar chart showing the reported budget in millions each fiscal year from 2014-15 through 2017-18. The total budget grew each year from slightly over $6 million in 2014-15 to approximately $7 million in 2017-18. Each bar is broken into enforcement staff, permits staff, administrative and planning staff, and project and overhead costs. Administrative and planning staff include the executive, legal, regulatory administration, sediment management, technical services, planning, and administration units. In each of the previous four fiscal years, the enforcement staff was the smallest budget category of those listed and ranged from 4.3% of the reported budget in 2014-15 through 6.2% in 2017-18.

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Figure 6
The Commission Employs 48 Staff Members

Figure 6 is a chart that shows the commission staff grouped by function. There are two executives, three enforcement staff members, seven permit staff members, three legal staff members, and six regulatory administration and sediment management staff members. Additionally, there are 13 planning staff members and 14 staff members in the “other administration” category. The figure is based on March 2019 commission staff data.

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Figure 7
Virginia’s Compliance and Enforcement Timelines Are an Example of a Best Practice for Processing Enforcement Cases

Figure 7 consists of two time-lines side-by-side showing Virginia’s compliance and enforcement processes. The compliance timeline begins when staff discover an alleged violation. In Month One, within 30 days of discovering the violation, staff notify the responsible party. When staff expect the responsible party to resolve the violation within 30 days, staff informally notify the party of the alleged violation. For violations that take longer than 30 days to resolve, staff issue a letter of agreement that provides a corrective action plan for returning to compliance. At Month 12, the compliance deadline, Virginia may extend the schedule for corrective action through a formal agreement if necessary, or transition to enforcement proceedings. In Month One of the enforcement timeline, Virginia sends a notice of violation to commence enforcement. Between Months Two and Five, staff prepare a recommended enforcement plan, draft and issue consent orders, and begin negotiations. At Month Nine, if the case remains unresolved, staff conduct a strategy session to discuss the negations and a schedule for resolving the case. At Month 12, executive management evaluate the case to provide guidance if it is not yet resolved. Finally, if the case remains unresolved by Month 15, executive management evaluate it to determine if the case warrants assistance from the U.S. Environmental Protection Agency, referral to the attorney general, or closure.

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Figure 8
The Commission Has Allowed Ongoing Harm to the Bay

Figure 8 contains two photographs of an abandoned tugboat in the Bay. The first photograph shows the tugboat grounded in mud. In April 2013, the U.S. Coast Guard contacted the commission to report an abandoned tug boat in the commission’s jurisdiction. Later that year, commission staff elected to close the case with no action and without addressing the Coast Guard’s concerns. The U.S. Coast Guard stated that its biggest concern was that there was a large potential for pollution and it was likely that one of such intentional groundings would rupture the hull and discharge fuel into the environment. As of December 2018, the tug remains in the San Francisco Bay. The second photograph shows the tugboat tilted and half-sunk in the Bay water.

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Figure 9
The Suisun Marsh Contains Numerous Endangered and Threatened Species

Figure 9 is a map of the Suisun Marsh and the surrounding area. The southern border of the marsh is in the Suisun Bay. The eastern border of the marsh extends north approximately from Pittsburg, up to US Highway 12 near Rio Vista. The northern border roughly follows the highway westward to Highway 60, and then the western border approximately follows Interstate 680 south to Benicia where it meets the Bay. The figure contains a list of four bird species, four fish species, two mammal species, one reptile species, and two plant species that are classified as either endangered, threatened, or a California species of concern that live in the marsh.

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Figure 10
Example of Permit Violations Staff May Have Identified With a Proactive Compliance Strategy

Figure 10 consists of two photographs of permit violations on the Bay shoreline. The first photograph depicts a pile of trash, including plastic bags, on a grass patch on the shoreline, and the second photograph depicts a broken fence surrounding a concrete projection into the Bay. Commission staff primarily learn of trash and maintenance issues through public reports. The commission does not have a program to proactively ensure that permit holders meet their permit obligations, such as providing public access in accordance with state law. In March 2013, staff received a report from a member of the public regarding trash in the first photograph and the fence in the second photograph in a permit holder’s public access area. Upon investigation, staff discovered general disrepair in the permitted area and closed the case two years later, after reporting that the permit holder remediated the issues and paid a $17,500 fine.

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Figure B
The Commission Took Enforcement Actions in Less Than 20 Percent of the Cases It Closed From 2012 Through 2017

Figure B is a bar chart showing 319 total cases from 2012 through 2017, 56 percent of which the commission closed. Of the closed cases, the commission closed 82 percent of them with no enforcement action. The remaining 18 percent of closed cases, in which the commission took an enforcement action, is broken down by the following actions: the commission levied standardized fines in 17 cases, sent a notice letter with no fine in 8 cases, initiated formal enforcement in seven cases, and used a settlement agreement in the final case. The cases in the graphic do not include cases in the backlog that the commission opened before 2012.

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Exhibit A

Exhibit A is a chart of the commission's staff. The top row shows three executive staff positions, including one secretary. The second row shows four legal staff positions, including one clerical. The third row shows 17 regulatory staff positions, including one director, three in enforcement, three in sediment management, seven in permits, one in engineering, one in design, and one clerical. The fourth row shows 15 planning staff positions, including one director, six in the Adapting to Rising Tides (ART) program, four in policy and plans (San Francisco Bay Plan, Suisun Marsh Protection Plan, San Francisco Bay Area Seaport Plan, Special Area Plans), two in GIS, one in oil spill, and one clerical. The bottom row shows 10 administrative staff positions, including one director, eight in administration (human resources, finance, contracts, records management, information technology), and one clerical.

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