THIRD READING  

Bill No: AB 2809

Author: Mullin (D), et al.

Amended: 5/18/20 in Assembly

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 8/5/20

AYES: Monning, Jones, Allen, Borgeas, Caballero, Hertzberg, Hueso, Jackson, Stern

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 78-0, 6/11/20 - See last page for vote

SUBJECT: San Francisco Bay Conservation and Development Commission: Suisun Marsh Preservation Act of 1977

SOURCE: Author

DIGEST:

This bill mandates various actions by the San Francisco Bay Conservation and Development Commission (BCDC) related to enforcement, penalties, and the implementation of the Suisun Marsh Preservation Act.

ANALYSIS:

Existing law:

1. Establishes BCDC. (Government Code (GOV) §66620)
2. Requires that any changes which extract materials or make any substantial change in the use of any water, land, or structure within BCDC’s jurisdiction requires a permit issued by BCDC (GOV §66632), and further:
   1. Requires BCDC to establish reasonable requirements for permits, as specified, including measures to ensure that a city or county with jurisdiction over the project may consider and act on all matters involving discretionary approval prior to BCDC taking action.
   2. Allows BCDC to set a filing fee and require reimbursement of expenses for processing and investigating a permit application.
   3. Requires all actions taken to complete projects to be in compliance with all applicable permits, as specified.
   4. Provides that any person taking these aforementioned changes to the use of any water, land, or structure within BCDC’s jurisdiction without a permit is guilty of a misdemeanor.
3. Allows BCDC to issue cease and desist orders when actions are taken by a person or government agency without a permit, or are inconsistent with the terms of a permit in BCDC’s jurisdiction (GOV §66638); and, if the terms of the order are not followed, further authorizes BCDC to request the Attorney General petition the superior court to: (GOV §66640)
   1. Issue a preliminary or permanent injunction restraining the person(s) from continuing any activity in violation of a permit or cease and desist order.
   2. Determine whether the activity may continue, in accordance with the public interest.
   3. Assess and recover up to $6,000 per day in violation, if the court determines the person or entity is civilly liable for intentional or negligent violation of a cease and desist order. (GOV §66641)
4. Designates BCDC as the primary state entity responsible for implementing provisions of the Suisun Marsh protection plan. (Public Resources Code (PRC) §29200)
5. Requires BCDC to review the local protection program, which consists of the actions and policies of local governments and districts in and adjacent to the Suisun Marsh. (PRC §29422)

This bill:

1. Requires BCDC, by the end of the 2020-21 fiscal year, to create and implement the following:
   1. A procedure to ensure managers perform a document review of staff decisions in enforcement cases.
   2. Timelines for resolving enforcement cases.
   3. A penalty matrix for assessing fines and civil penalties.
   4. A method for assessing civil penalties in cases involving multiple violations.
2. Requires, by July 1, 2025, and every five years thereafter, BCDC to review the certified local protection program for the Suisun Marsh to determine whether the program is being effectively implemented.

Comments

BCDC Jurisdiction and Its Enforcement Processes. The Legislature created BCDC in 1965 to regulate development in and around the San Francisco Bay to protect the Bay’s health and ensure public access. State law authorizes BCDC — which consists of 27 commissioners and 48 staff members — to issue and enforce, via fines and penalties, permits for certain actions, including placing or removing material in or from the Bay. State law authorizes BCDC to approve projects — which may range from residential and commercial endeavors to piers and ports — throughout the Bay and its shoreline. Permit applications for minor repairs or improvements are typically processed by staff, and the commissioners regularly hold formal hearings to approve or reject permits for major developments. According to the State Auditor’s 2019 Report, BCDC reported that it approved 630 permits for major projects and almost 3,900 administrative permits for minor projects from 1970 through 2018. BCDC also administers the Abatement Fund to pay for fill removal, resource enhancement, and any other remedial clean-up or abatement actions.

BCDC has adopted regulations that allow staff to resolve many permit violations through a standardized fines process. BCDC’s enforcement unit investigates allegations related to unauthorized bay fill or construction, obstruction, or misuse of public access amenities, and other permit or statutory violations. To resolve certain violations, enforcement staff may issue new permits or amend existing permits. Staff may also fine violators who do not correct violations within a grace period, with the amount of the fine increasing over time until the violator corrects the problem or the fine reaches the $30,000 maximum for individual violations. Because a single enforcement case often contains multiple violations, a violator may accrue fines greater than this maximum. A violator may appeal a staff-level fine by requesting a hearing with the commissioners or by submitting a request for fine reduction to the executive director and BCDC chair. Staff do not collect fines until violators have corrected the violations, and if a violator refuses to take corrective action, staff may refer the case to the commissioners for a hearing. The commissioners may then decide to forward the case directly to the Office of the Attorney General for litigation.

State regulations require BCDC commissioners, rather than staff members, to process violations that have caused significant harm to the Bay. The enforcement committee reviews the violation report written by staff and any supporting documentation, holds hearings, and recommends a decision to the commissioners for a vote. The enforcement committee’s recommendations may include civil penalties that, like standardized fines, have a maximum of $30,000 per violation. The enforcement committee may also recommend that the commissioners issue a cease-and-desist order to stop the activity causing the violation.

Legislative Audit Recommendations. In 2018, the Legislative Audit Committee requested the California State Auditor to investigate BCDC’s enforcement program. The resulting 2019 State Auditor’s report found that BCDC has a backlog of 230 enforcement cases, some of which are more than a decade old, and that staff opened 14 more cases on average than they closed annually from 2012 through 2017. Furthermore, it found that BCDC’s approach to identifying individual violations has led to inconsistencies in its imposition of fines. As noted above, BCDC issues fines up to a maximum of $30,000 per violation, but a single case may involve multiple violations and thus incur multiple fines. The report found that BCDC is not always consistent in how it fines violators who have multiple infractions. The report further found that the BCDC has used the Abatement Fund almost exclusively to support staff salaries and operational costs, rather than for Bay clean-up projects. The report states that the BCDC used a total of $240,000 from the Abatement Fund to pay salaries in three of the past four fiscal years, including $99,000 in fiscal year 2017–18 when the fund balance was $1.4 million.

The requested audit resulted into a number of findings and recommendations for the Legislature to:

1. Require BCDC, by fiscal year 2020-2021, to create or implement:
   1. Procedures to ensure that managers perform documented review of staff decisions in enforcement cases.
   2. Timelines for resolving enforcement cases.
   3. A penalty matrix for applying fines and civil penalties.
   4. Regulations to define single violations, and a method of resolving minor violations.
   5. A review as part of BCDC’s comprehensive Suisun Marsh program review, which is already required at least once every five years.
2. Restrict the use of funds from the Abatement Fund solely for physical cleanup rather than enforcement salaries, and to identify alternate funding sources for funding staff and enforcement activities, such as the General Fund.
3. Provide BCDC with the authority to record notices of violations on the titles of properties that have been subject to enforcement action once BCDC has completed all of the actions recommended to it by the Audit.

Since the audit was published in February 2019, BCDC has initiated an internal process to evaluate and identify improvements to its enforcement program, according to their report on enforcement to the Legislature. This included implementing recommendations from the State Auditor’s report. BCDC hired an Enforcement Program Manager to work on procedural improvements, including procedures to prioritize enforcement cases, milestones to reflect defined periods within which cases must make consistent progress towards case resolution, and to provide bimonthly reports on enforcement case resolution progress to the commissioners. BCDC is already in the process of implementing the changes required by Section 1 of this bill.

Suisun Marsh Program. The Suisun Marsh makes up almost 10% of the remaining natural wetlands in California and forms a critical habitat for endangered California wildlife. BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. State law requires BCDC to ensure that local agencies are effectively implementing the marsh program, and requires BCDC to issue recommendations for corrective action to the program, as necessary. State law requires BCDC to conduct a review of the marsh program every five years. The State Auditor’s report indicates that BCDC, as of 2019, has never issued the required recommendations, nor conducted the five-year reviews of the program.

In 2019, the commissioners approved a staff recommendation to conduct a comprehensive review of the Suisun Marsh Local Protection Program. They have since completed this review and are now planning a comprehensive review of the associated protection plan. The law already requires BCDC to review the local program every five years and to make recommendations to improve it. Based on this timeline, the bill will not force BCDC to conduct another review prior to 2021. Rather, this bill resets the timeline so that another review must be completed within five years of the most recent review, or by 2025.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• Unknown cost pressures, potentially in the low hundreds of thousands of dollars annually (General Fund or special fund), to hire staff to address and resolve the backlog of enforcement cases after BCDC develops the timeline required by this bill.
• BCDC estimates costs of approximately $110,000 to $130,000 annually (General Fund) to implement this bill.

SUPPORT: (Verified 8/20/20)

Bay Planning Coalition

Recreational Boaters of California

San Francisco Bay Stewardship Alliance

OPPOSITION: (Verified 8/20/20)

None received

ARGUMENTS IN SUPPORT: According to the author:

Following several complaints from local and Bay Area businesses and individuals that the San Francisco Bay Conservation and Development Commission (BCDC) was engaging in overzealous prosecution of minor offenses…I and the co-authors of this bill made a request for an audit of BCDC regarding their enforcement policies and activities. What the audit found was shocking and consistent with the complaints that had been sent to our offices. In 2019, the state auditor delivered a scathing report that included numerous suggestions for reform. AB 2809 proposes a number of those reforms.

Additionally, the Recreation Boaters of California write:

The proposed reforms will ensure BCDC “[e]stablish[es] and follow[s] appropriate procedures for managerial review of staff decisions in enforcement cases, as well as time lines for resolving those cases, and that it adopt a penalty matrix for assessing fines and civil penalties.

In providing context for the future of climate change facing the bay, the Bay Planning Coalition states:

Sea level rise poses a severe threat to the Bay Area and its economy, threatening a significant portion of the region’s housing, jobs, and public infrastructure. By the end of the century, the Bay shoreline is estimated to experience three feet of sea level rise, which could flood up to 1,460 miles of roadways and put $50-100 billion worth of structures at risk. This cost will only rise as the waterfront continues to attract new housing and commercial development. Many of our members are working to implement key shoreline adaptation and development projects that are helping our region respond to dual climate and housing crises, and we want to ensure that BCDC permitting and enforcement processes are as efficient and transparent as possible in order to deliver these projects in a timely manner.

ASSEMBLY FLOOR: 78-0, 6/11/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Quirk

Prepared by: Grayson Doucette / N.R. & W. / (916) 651-4116

8/21/20 18:01:36

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2809 (Mullin) - San Francisco Bay Conservation and Development Commission: Suisun Marsh Preservation Act of 1977

Bill Summary:

This bill would mandate various actions by the San Francisco Bay Conservation and Development Commission (BCDC) related to enforcement, penalties, and the implementation of the Suisun Marsh Preservation Act.

Fiscal Impact:

• Unknown cost pressures, potentially in the low hundreds of thousands of dollars annually (General Fund or special fund), to hire staff to address and resolve the backlog of enforcement cases after BCDC develops the timeline required by the bill.
• BCDC estimates costs of approximately $110,000 to $130,000 annually (General Fund) to implement the bill.

Background:

BCDC. BCDC regulates development in and around the San Francisco Bay to protect the bay’s health and ensure public access. BCDC issues and enforces, via fines and penalties, permits for certain actions, including placing in or removing material from the bay. BCDC approves projects—which may range from residential and commercial endeavors to piers and ports—throughout the bay and its shoreline. Permit applications for minor repairs or improvements are typically processed by staff, and the commissioners regularly hold formal hearings to approve or reject permits for major developments.

BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. BCDC ensures local agencies are effectively implementing the marsh program, and issues recommendations for corrective action to the program, as necessary. State law requires BCDC to conduct a review of the marsh program every five years. However, BCDC completed its first review only this year, after the audit findings.

2019 Audit. The 2019 State Auditor’s report found BCDC has a backlog of 230 enforcement cases, some of which are more than a decade old, and that staff opened 14 more cases on average than they closed annually from 2012 through 2017. It also found BCDC’s approach to identifying individual violations is inconsistent, particularly in how BCDC fines violators with multiple infractions. At the time of publication, the audit report noted BCDC never reviewed the Suisun Marsh program as required by law.

Suisun Marsh Program. The Suisun Marsh makes up almost 10 percent of the remaining natural wetlands in California and forms a critical habitat for endangered California wildlife. BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. State law requires BCDC to ensure that local agencies are effectively implementing the marsh program, and requires BCDC to issue recommendations for corrective action to the program, as necessary. State law requires BCDC to conduct a review of the marsh program every five years. The State Auditor’s report indicates that BCDC, as of 2019, has never issued the required recommendations, nor conducted the five-year reviews of the program.

In 2019, the commissioners approved a staff recommendation to conduct a comprehensive review of the Suisun Marsh Local Protection Program. They have since completed this review and are now planning a comprehensive review of the associated protection plan.

Proposed Law:

This bill would:

1. Require BCDC, by the end of the 2020-21 fiscal year, to create and implement the following:
   1. A procedure to ensure managers perform a document review of staff decisions in enforcement cases.
   2. Timelines for resolving enforcement cases.
   3. A penalty matrix for assessing fines and civil penalties.
   4. A method for assessing civil penalties in cases involving multiple violations.
2. Require, by July 1, 2025, and every five years thereafter, BCDC to review the certified local protection program for the Suisun Marsh to determine whether the program is being effectively implemented.

Staff Comments:

The law already requires BCDC to review the Suisun Marsh local protection program every five years and to make recommendations to improve it. Based on this timeline, this bill would not force BCDC to conduct another review prior to 2021. Rather, this bill would reset the timeline so that another review must be completed within five years of the most recent review, or by 2025.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Henry Stern, Chair

2019 - 2020 Regular

Bill No: AB Hearing Date: August 5, 2020

Subject: San Francisco Bay Conservation and Development Commission: Suisun Marsh Preservation Act of 1977

BACKGROUND AND EXISTING LAW

Existing law:

1. Establishes the San Francisco Bay Conservation and Development Commission (BCDC). (Government Code (GOV) §66620)
2. Requires that any changes which extract materials or make any substantial change in the use of any water, land, or structure within BCDC’s jurisdiction requires a permit issued by BCDC (GOV §66632), and further:
   1. Requires BCDC to establish reasonable requirements for permits, as specified, including measures to ensure that city or counties with jurisdiction over the project may consider and act on all matters involving discretionary approval prior to BCDC taking action.
   2. Allows BCDC to set a filing fee and require reimbursement of expenses for processing and investigating a permit application.
   3. Requires all actions taken to complete projects to be in compliance with all applicable permits, as specified.
   4. Provides that any person taking these aforementioned changes to the use of any water, land, or structure within BCDC’s jurisdiction without a permit is guilty of a misdemeanor.
3. Allows BCDC to issue cease and desist orders when actions are taken by a person or government agency without a permit, or are inconsistent with the terms of a permit in BCDC’s jurisdiction (GOV §66638); and if the terms of the order are not followed further authorizes BCDC to request the Attorney General petition the superior court to: (GOV §66640)
   1. Issue a preliminary or permanent injunction restraining the person(s) from continuing any activity in violation of a permit or cease and desist order.
      
   2. Determine whether the activity may continue, in accordance with the public interest.
      
   3. Assess and recover up to $6,000 per day in violation, if the court determines the person or entity is civilly liable for intentional or negligent violation of a cease and desist order. (GOV §66641)
4. Designates BCDC as the primary state entity responsible for implementing provisions of the Suisun Marsh protection plan. (Public Resources Code (PRC) §29200)
5. Requires BCDC to review the local protection program which consists of the actions and policies of local governments, and districts in and adjacent to the Suisun marsh. (PRC §29422)

PROPOSED LAW

This bill would:

1. Require BCDC, by the end of the 2020-21 fiscal year, to create and implement the following:
   1. A procedure to ensure managers perform a document review of staff decisions in enforcement cases.
   2. Timelines for resolving enforcement cases.
   3. A penalty matrix for assessing fines and civil penalties.
   4. A method for assessing civil penalties in cases involving multiple violations.
2. Require, by July 1, 2025, and every five years thereafter, BCDC to review the certified local protection program for the Suisun Marsh to determine whether the program is being effectively implemented.

ARGUMENTS IN SUPPORT

According to the Author, “following several complaints from local and Bay Area businesses and individuals that the San Francisco Bay Conservation and Development Commission (BCDC) was engaging in overzealous prosecution of minor offenses.” They go on to state that “I and the co-authors of this bill made a request for an audit of BCDC regarding their enforcement policies and activities. What the audit found was shocking and consistent with the complaints that had been sent to our offices. In 2019, the state auditor delivered a scathing report that included numerous suggestions for reform. AB 2809 proposes a number of those reforms.”

Additionally, the Recreation Boaters of California say that the proposed reforms will ensure BCDC “[e]stablish[es] and follow[s] appropriate procedures for managerial review of staff decisions in enforcement cases, as well as time lines for resolving those cases, and that it adopt a penalty matrix for assessing fines and civil penalties.”

In providing context for the future of climate change facing the bay, the Bay Planning Coalition states, “[s]ea level rise poses a severe threat to the Bay Area and its economy, threatening a significant portion of the region’s housing, jobs, and public infrastructure. By the end of the century, the Bay shoreline is estimated to experience three feet of sea level rise, which could flood up to 1,460 miles of roadways and put $50-100 billion worth of structures at risk. This cost will only rise as the waterfront continues to attract new housing and commercial development. Many of our members are working to implement key shoreline adaptation and development projects that are helping our region respond to dual climate and housing crises, and we want to ensure that BCDC permitting and enforcement processes are as efficient and transparent as possible in order to deliver these projects in a timely manner.

ARGUMENTS IN OPPOSITION

None Received

COMMENTS

BCDC Jurisdiction and Its Enforcement Processes. The Legislature created BCDC in 1965 to regulate development in and around the San Francisco Bay to protect the Bay’s health and ensure public access. State law authorizes BCDC — which consists of 27 commissioners and 48 staff members — to issue and enforce, via fines and penalties, permits for certain actions, including placing or removing material in or from the Bay. State law authorizes BCDC to approve projects — which may range from residential and commercial endeavors to piers and ports — throughout the Bay and its shoreline. Permit applications for minor repairs or improvements are typically processed by staff, and the commissioners regularly hold formal hearings to approve or reject permits for major developments. According to the State Auditor’s 2019 Report, BCDC reported that it approved 630 permits for major projects and almost 3,900 administrative permits for minor projects from 1970 through 2018. BCDC also administers the Abatement Fund to pay for fill removal, resource enhancement, and any other remedial clean-up or abatement actions.

BCDC has adopted regulations that allow staff to resolve many permit violations through a standardized fines process. BCDC’s enforcement unit investigates allegations related to unauthorized bay fill or construction, obstruction, or misuse of public access amenities, and other permit or statutory violations. To resolve certain violations, enforcement staff may issue new permits or amend existing permits. Staff may also fine violators who do not correct violations within a grace period, with the amount of the fine increasing over time until the violator corrects the problem or the fine reaches the $30,000 maximum for individual violations. Because a single enforcement case often contains multiple violations, a violator may accrue fines greater than this maximum. A violator may appeal a staff-level fine by requesting a hearing with the commissioners or by submitting a request for fine reduction to the executive director and BCDC chair. Staff do not collect fines until violators have corrected the violations, and if a violator refuses to take corrective action, staff may refer the case to the commissioners for a hearing. The commissioners may then decide to forward the case directly to the Office of the Attorney General for litigation.

State regulations require BCDC commissioners, rather than staff members, to process violations that have caused significant harm to the Bay. The enforcement committee reviews the violation report written by staff and any supporting documentation, holds hearings, and recommends a decision to the commissioners for a vote. The enforcement committee’s recommendations may include civil penalties that, like standardized fines, have a maximum of $30,000 per violation. The enforcement committee may also recommend that the commissioners issue a cease-and-desist order to stop the activity causing the violation.

Legislative Audit Recommendations. In 2018, the Legislative Audit Committee requested the California State Auditor to investigate BCDC’s enforcement program. The resulting 2019 State Auditor’s report found that BCDC has a backlog of 230 enforcement cases, some of which are more than a decade old, and that staff opened 14 more cases on average than they closed annually from 2012 through 2017. Furthermore, it found that BCDC’s approach to identifying individual violations has led to inconsistencies in its imposition of fines. As noted above, BCDC issues fines up to a maximum of $30,000 per violation, but a single case may involve multiple violations and thus incur multiple fines. The report found that BCDC is not always consistent in how they fine violators who have multiple infractions. The report further found that the BCDC has used the Abatement Fund almost exclusively to support staff salaries and operational costs, rather than for Bay clean-up projects. The report states that the BCDC used a total of $240,000 from the Abatement Fund to pay salaries in three of the past four fiscal years, including $99,000 in fiscal year 2017–18 when the fund balance was $1.4 million.

The requested audit resulted into a number of findings and recommendations for the legislature to:

1. Require BCDC, by fiscal year 2020-2021, to create or implement:
   1. Procedures to ensure that managers perform documented review of staff decisions in enforcement cases.
   2. Timelines for resolving enforcement cases.
   3. A penalty matrix for applying fines and civil penalties.
   4. Regulations to define single violations, and a method of resolving minor violations.
   5. A review as part of BCDC’s comprehensive Suisun Marsh program review which is already required at least once every five years.
2. Restrict the use of funds from the Abatement Fund solely for physical cleanup rather than enforcement salaries, and to identify alternate funding sources for funding staff and enforcement activities, such as the General Fund.
3. Provide the commission with the authority to record notices of violations on the titles of properties that have been subject to enforcement action once BCDC has completed all of the actions recommended to it by the Audit.

Since the audit was published in February 2019, BCDC has initiated an internal process to evaluate and identify improvements to its enforcement program, according to their report on enforcement to the Legislature. This included implementing recommendations from the State Auditor’s report. BCDC hired an Enforcement Program Manager to work on procedural improvements, including procedures to prioritize enforcement cases, milestones to reflect defined periods within which cases must make consistent progress towards case resolution, and to provide bimonthly reports on enforcement case resolution progress to the commissioners. BCDC is already in the process of implementing the changes required by Section 1 of this bill.

Suisun Marsh Program. The Suisun Marsh makes up almost 10% of the remaining natural wetlands in California and forms a critical habitat for endangered California wildlife. BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. State law requires BCDC to ensure that local agencies are effectively implementing the marsh program, and requires BCDC to issue recommendations for corrective action to the program, as necessary. State law requires BCDC to conduct a review of the marsh program every five years. The State Auditor’s report indicates that BCDC, as of 2019, has never issued the required recommendations, nor conducted the five-year reviews of the program.

In 2019, the commissioners approved a staff recommendation to conduct a comprehensive review of the Suisun Marsh Local Protection Program. They have since completed this review and are now planning a comprehensive review of the associated protection plan. The law already requires BCDC to review the local program every five years and to make recommendations to improve it. Based on this timeline, the bill will not force BCDC to conduct another review prior to 2021. Rather, the bill resets the timeline so that another review must be completed within five years of the most recent review, or by 2025.

SUPPORT

Bay Planning Coalition

Recreational Boaters of California

San Francisco Bay Stewardship Alliance

OPPOSITION

None Received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2809

Author:(Mullin)

As Amended Ver:May 18, 2020

Majority vote

SUMMARY:

Requires the San Francisco Bay Conservation and Development Commission (BCDC) to create and implement procedures to improve the timeliness and consistency of its enforcement programs.

Major Provisions

1. Requires BCDC, by the end of the 2020-21 fiscal year, to create and implement the following:
   1. A procedure to ensure managers perform a document review of staff decisions in enforcement cases;
   2. Timelines for resolving enforcement cases;
   3. A penalty matrix for assessing fines and civil penalties; and
   4. A method for assessing civil penalties in cases involving multiple violations.
2. Requires, by July 1, 2025, and every five years thereafter, BCDC to review the implementation of the certified local protection program for the Suisun Marsh.

COMMENTS:

The Legislature created BCDC to regulate development in and around the San Francisco Bay to protect the Bay's health and ensure public access. State law authorizes BCDC to issue and enforce permits for actions such as placing material in the Bay or removing material from it. The Joint Legislative Audit Committee asked the California State Auditor to investigate BCDC's enforcement program in 2018. The State Auditor's 2019 Report (https://www.auditor.ca.gov/reports/2018-120/summary.html) found that BCDC has a backlog of 230 enforcement cases, some of which are more than a decade old, and that staff opened 14 more cases on average than they closed annually from 2012 through 2017. It found that BCDC's approach to identifying individual violations has led to inconsistencies in its imposition of fines. This bill implements several of the suggestions from the Auditor's report to improve the consistency and timeliness of BCDC's enforcement program.

BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. The Suisun Marsh makes up almost 10% of the remaining natural wetlands in California. State law requires BCDC to review, every five years, the effectiveness of the implementation of the marsh program by local agencies and to issue recommendations for corrective action to the program, as necessary. The State Auditor's report indicates that, as of 2019, BCDC had never issued the required recommendations nor conducted five-year reviews of the program. However, BCDC completed a review of the program in the spring of 2020. This bill updates existing law to require another review by 2025, and every five years thereafter.

The audit made additional suggestions that are not part of this bill.

According to the Author:

Following several complaints from local Bay Area businesses and individuals that BCDC was engaging in overzealous prosecution of minor offenses, my office made a request for an audit of BCDC regarding their enforcement policies and activities. What the audit found was shocking and consistent with the complaints that had been sent to my office. In 2019, the state auditor delivered a scathing report which included numerous suggestions for reform. AB 2809 proposes some of those reforms.

Arguments in Support:

Supports note that this bill will promote transparency and efficiency in BCDC's permitting and enforcement processes, ensuring that new housing, commercial development, and shoreline adaptation projects are delivered in a timely manner.

Arguments in Opposition:

None received

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, this bill will cause unknown cost pressures, potentially in the low hundreds of thousands of dollars annually, to hire staff to address and resolve the backlog of enforcement cases after BCDC develops the timeline required by the bill. BCDC may experience annual costs of approximately $110,000 to $130,000 to implement the bill.

VOTES:

ASM NATURAL RESOURCES: 11-0-0

YES: Friedman, Flora, Brough, Chau, Eggman, Cristina Garcia, Limón, Mathis, McCarty, Muratsuchi, Mark Stone

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: May 18, 2020

CONSULTANT: Jacy Hyde / NAT. RES. / (916) 319-2092 FN: 0002921

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2809

Author:(Mullin) – As Amended Ver:May 18, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill mandates various actions of the Bay Delta Conservation Commission (BCDC) with regard to enforcement, penalties and the implementation of the Suisun Marsh Preservation Act. Specifically, this bill:

1. Requires the BCDC, by the end of the 2020-21 fiscal year, to create and implement the following:
   1. A procedure to ensure managers perform a document review of staff decisions in enforcement cases.
   2. Timelines for resolving enforcement cases.
   3. A penalty matrix for assessing fines and civil penalties.
   4. A method for assessing civil penalties in cases involving multiple violations.
2. Requires, by July 1, 2025, and every five years thereafter, BCDC to review the certified local protection program for the Suisun Marsh to determine whether the program is being effectively implemented.

FISCAL EFFECT:

1. Unknown cost pressures, potentially in the low hundreds of thousands of dollars annually, to hire staff to address and resolve the backlog of enforcement cases after BCDC develops the timeline required by the bill.
2. BCDC annual costs of approximately $110,000 to $130,000 to implement the bill.

COMMENTS:

1. Purpose. According to the author, upon receiving numerous complaints, the author made a request for an audit of BCDC regarding its enforcement policies and activities. This bill implements some of the State Auditor’s recommendations.
2. Background. BCDC regulates development in and around the San Francisco Bay to protect the bay’s health and ensure public access. BCDC issues and enforces, via fines and penalties, permits for certain actions, including placing in or removing material from the bay. BCDC approves projects—which may range from residential and commercial endeavors to piers and ports—throughout the bay and its shoreline. Permit applications for minor repairs or improvements are typically processed by staff, and the commissioners regularly hold formal hearings to approve or reject permits for major developments.

BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. BCDC ensures local agencies are effectively implementing the marsh program, and issues recommendations for corrective action to the program, as necessary. State law requires BCDC to conduct a review of the marsh program every five years. However, BCDC completed its first review only this year, after the audit findings.

1. State Auditor’s Findings. The 2019 State Auditor’s report found BCDC has a backlog of 230 enforcement cases, some of which are more than a decade old, and that staff opened 14 more cases on average than they closed annually from 2012 through 2017. It also found BCDC’s approach to identifying individual violations is inconsistent, particularly in how BCDC fines violators with multiple infractions. At the time of publication, the audit report noted BCDC never reviewed the Suisun Marsh program as required by law. The audit made additional findings that are not the subject of this bill.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: May 13, 2020

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Laura Friedman, Chair

ABPCA Bill Id:AB 2809 (

Author:Mullin) – As Introduced Ver:February 20, 2020

SUBJECT: San Francisco Bay Conservation and Development Commission: Suisun Marsh Preservation Act of 1977

SUMMARY: Requires the San Francisco Bay Conservation and Development Commission (BCDC) to create and implement various procedures to improve the timeliness and consistency of its enforcement programs. Prohibits BCDC from using the Bay Fill Clean-Up and Abatement Fund (Abatement Fund) to pay for staff salaries or enforcement actions.

EXISTING LAW:

1. Declares that uncoordinated, haphazard filling in San Francisco Bay threatens the Bay; declares that further filling of San Francisco Bay and certain waterways should be authorized only when public benefits from fill clearly exceed public detriment from the loss of the water areas and should be limited to water-oriented uses or minor fill for improving shoreline appearance or public access to the Bay.
2. Requires the BCDC to create a comprehensive plan for the conservation and development of the Bay and shoreline and empowers them to implement the plan.
3. Requires any person or governmental agency wishing to place fill, extract materials, or make any substantial change in the use of any water, land, or structure within the shoreline and body of the Bay to secure a permit from the BCDC.
4. Allows the BCDC to issue a cease and desist order if the executive director determines that a person or governmental agency has undertaken or plans to undertake an activity without a permit or an activity in violation of an existing permit. Upon failure of the person or entity to comply with the order, authorizes the BCDC to request that the Attorney General petition the superior court to:
   1. Issue a preliminary or permanent injunction restraining the person(s) from continuing any

activity in violation of a permit or cease and desist order;

• 1. Determine whether the activity may continue, in accordance with the public interest;
     
  2. Assess and recover up to $6,000 per day in violation, if the court determines the person or

entity is civilly liable for intentional or negligent violation of a cease and desist order;

and,

• 1. Impose an additional civil penalty not to exceed $30,000 per violation for persons or

entities who knowingly undertake an activity without a permit or violate a permit.

1. Establishes the Abatement Fund. Requires all moneys appropriated by the Legislature, collected civilly by the BCDC, or contributed by a person or entity, to be deposited in the fund. Makes all monies in the Abatement Fund available for expenditure by BCDC or the executive director, when appropriated by the Legislature, for the purposes of removing fill, resource enhancement, or performing any other remedial cleanup or abatement actions within BCDC’s jurisdiction.
2. Requires the creation of a local protection program for Suisun Marsh. Grants primary responsibility to the BCDC for the implementation of the protection plan. Requires the BCDC, at least every five years, review the certified local protection program to determine whether it is being effectively implemented and conforming with policy. Requires the BCDC to recommend corrective actions to bring the program back into conformity or improve its effectiveness, if necessary.

THIS BILL:

1. Requires the BCDC, by the end of the 2020-21 fiscal year, to create and implement the following:
   1. A procedure to ensure managers perform a document review of staff decisions in enforcement cases;
   2. Timelines for resolving enforcement cases; and
   3. A penalty matrix for assessing fines and civil penalties.
2. Commencing at the start of the 2022-23 fiscal year, permits the BCDC to record notices of violation on the titles of properties that are the subject of a final order setting administrative liability.
3. Commencing with the 2021–22 fiscal year, forbids the use of moneys in the Abatement Fund to pay for the BCDC’s enforcement activities or the BCDC’s staff salaries.
4. Requires, by July 1, 2021, and every five years thereafter, the BCDC to review the certified local protection program for the Suisun Marsh to determine whether the program is being effectively implemented.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

Following several complaints from local, Bay Area businesses and individuals that the BCDC was engaging in overzealous prosecution of minor offenses, my office made a request for an audit of BCDC regarding their enforcement policies and activities. What the audit found was shocking and consistent with the complaints that had been sent to my office. In 2019, the state auditor delivered a scathing report which included numerous suggestions for reform. AB 2809 proposes three of those reforms.

1. Background. The Legislature created BCDC in 1965 to regulate development in and around the San Francisco Bay to protect the Bay’s health and ensure public access. State law authorizes BCDC—which consists of 27 commissioners and 48 staff members—to issue and enforce, via fines and penalties, permits for certain actions, including placing material in the Bay or removing material from it. State law authorizes BCDC to approve projects—which may range from residential and commercial endeavors to piers and ports—throughout the Bay and its shoreline. Permit applications for minor repairs or improvements are typically processed by staff, and the commissioners regularly hold formal hearings to approve or reject permits for major developments. According to the State Auditor’s 2019 Report, the BCDC reported that it approved 630 permits for major projects and almost 3,900 administrative permits for minor projects from 1970 through 2018. BCDC also administers the Abatement Fund to pay for fill removal, resource enhancement, and any other remedial clean-up or abatement actions.

BCDC has adopted regulations that allow staff to resolve many permit violations through a standardized fines process. BCDC’s enforcement unit investigates allegations related to unauthorized bay fill or construction, obstruction, or misuse of public access amenities, and other permit or statutory violations. To resolve certain violations, enforcement staff may issue new permits or amend existing permits. Staff may also fine violators who do not correct violations within a grace period, with the amount of the fine increasing over time until the violator corrects the problem or the fine reaches the $30,000 maximum for individual violations. Because a single enforcement case often contains multiple violations, a violator may accrue fines greater than this maximum. A violator may appeal a staff-level fine by requesting a hearing with the commissioners or by submitting a request for fine reduction to the executive director and BCDC chair. Staff do not collect fines until violators have corrected the violations, and if a violator refuses to take corrective action, staff may refer the case to the commissioners for a hearing. The commissioners may then decide to forward the case directly to the Office of the Attorney General for litigation.

State regulations require the commission, rather than staff members, to process violations that have caused significant harm to the Bay. The enforcement committee reviews the violation report written by staff and any supporting documentation, holds hearings, and recommends a decision to the commissioners for a vote. The enforcement committee’s recommendations may include civil penalties that, like standardized fines, have a maximum of $30,000 per violation. The enforcement committee may also recommend that the commissioners issue a cease-and-desist order to stop the activity causing the violation.

1. The State Auditor’s recommendations to improve the enforcement program. The Joint Legislative Audit Committee requested the California State Auditor to investigate BCDC’s enforcement program in 2018. The 2019 State Auditor’s report found that BCDC has a backlog of 230 enforcement cases, some of which are more than a decade old, and that staff opened 14 more cases on average than they closed annually from 2012 through 2017. Furthermore, it found that BCDC’s approach to identifying individual violations has led to inconsistencies in its imposition of fines. BCDC issues fines up to a maximum of $30,000 per violation, but a single case may involve multiple violations and thus incur multiple fines. The report found that BCDC is not always consistent in how they fine violators who have multiple infractions. The report further notes that the BCDC has used the Abatement Fund almost exclusively to support staff salaries and operational costs rather than for Bay clean-up projects. The report states that the BCDC used a total of $240,000 from the abatement fund to pay salaries in three of the past four fiscal years, including $99,000 in fiscal year 2017–18.

In February 2019, BCDC initiated an internal process to evaluate and identify improvements to its enforcement program, according to their report on enforcement to the Legislature. This included implementing recommendations from the State Auditor’s report. They hired an Enforcement Program Manager to work on procedural improvements, including procedures to prioritize enforcement cases, milestones to reflect defined periods within which cases must make consistent progress towards case resolution, and bimonthly reports on enforcement case resolution progress to the commissioners. BCDC is already in the process of implementing the changes required by Section 1 of this bill.

The Auditor’s report suggested that the committee also create a method for assessing civil penalties in cases involving multiple violations. This suggestion was not included in the bill, although there is evidence to suggest there are inconsistencies in the way the BCDC has fined entities with multiple violations in the past. Consequently, the committee may wish to amend the bill to require the BCDC to create a method for assessing civil penalties in cases involving multiple violations.

The Auditor’s report also suggests amending state law to allow the BCDC to record notices of violation on the titles of properties that have been subject to enforcement action. The California Coastal Commission has a similar authority and a procedure by which to appeal the notice and remove it once the violation is corrected. The report states that this action would provide the property owner in violation an incentive to resolve the issue. It would also protect potential buyers who may not be aware that they are purchasing a property with active violations, leading to fines for the new owner. This bill would amend the law to allow the BCDC to record notices of violation only on titles of properties that are the subject of a final order setting administrative liability. This change would not provide incentives to resolve issues prior to a final order, and thus would have limited utility in speeding along the resolution of cases. It would not inform potential buyers that the property was out of compliance until after the final order. Furthermore, this bill does not provide a method by which to remove the notice of violation from a title. The committee may wish to amend the bill to allow the BCDC to record notices on titles prior to a final order if sufficient evidence is presented to demonstrate a violation, as suggested in the Auditor’s report. This should include a requirement to notify the property owner, an appeals process prior to recording notice on the title, and a method for removing the notice from the title after the violation has been resolved. Alternatively, the committee could remove this provision from the bill.

1. Expenditures from the Abatement Fund. BCDC administers the Abatement Fund to pay for fill removal, resource enhancement, and any other remedial clean-up or abatement actions. The Abatement Fund receives its revenue from regulatory penalties, appropriations, or donations. In the 2019-20 fiscal year, the Abatement Fund held $493,000. BCDC’s budget for fiscal year 2019-20 was $10.5 million, including the Abatement Fund, reimbursements, $6.5 million from the General Fund, and $1.8 million from the Greenhouse Gas Reduction Fund. Of this total, $6.7 million was used to fund staff positions and benefits, including, but not limited to, enforcement staff.

This bill would clarify that the Abatement Fund is intended to be used only for the physical cleanup of the Bay, rather than for enforcement activities or staff salaries. However, the bill does not provide alternate funding to support enforcement staff. Currently, the Abatement Fund supports essential staff, including the staff member responsible for implementing the Auditor’s recommendations to improve enforcement procedure. Although it would be ideal to fund enforcement staff salaries and enforcement activities from another source (the Auditor suggests the General Fund), removing the source of funding for essential enforcement staff will prevent the BCDC from undertaking important enforcing activities and cause further delays in resolving cases. The Auditor’s report notes that the enforcement team is already understaffed. The committee may wish to amend the bill to prohibit the use of the Abatement Fund to pay for staff salaries or enforcement activities only after an alternative source of funding has been identified and appropriated.

1. Suisun Marsh Program. The Suisun Marsh makes up almost 10% of the remaining natural wetlands in California and forms a critical habitat for endangered California wildlife. BCDC is the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program. State law requires BCDC to ensure that local agencies are effectively implementing the marsh program, and requires BCDC to issue recommendations for corrective action to the program, as necessary. State law requires BCDC to conduct a review of the marsh program every five years. The State Auditor’s report indicates that BCDC has never issued the required recommendations nor conducted five-year reviews of the program, as of 2019.

In 2019, the commissioners approved a staff recommendation to conduct a comprehensive review of the Suisun Marsh Local Protection Program. They have since completed this review and are now planning a comprehensive review of the associated protection plan. The law already requires BCDC to review the local program every five years and to make recommendations to improve it. This bill would reinforce this provision by requiring a review by July 2021 and then again every five years thereafter. The committee may wish to ensure that the language of this bill will not force BCDC to conduct another review prior to 2021, since they just completed a review in 2020. Rather, the bill should reset the timeline so that another review must be completed within five years of the most recent review, or by 2025.

REGISTERED SUPPORT / OPPOSITION:

Support

Bay Planning Coalition
Recreational Boaters of California
San Francisco Bay Stewardship Alliance 

Opposition

San Francisco Bay Conservation and Development Commission

Analysis Prepared by: Jacy Hyde / NAT. RES. /