May 14, 2019
Results in Brief
The San Francisco Bay Conservation and Development Commission (commission) has neglected its responsibility to protect the San Francisco Bay (Bay) and the Suisun Marsh. The Legislature created the commission in 1965 to regulate development in and around the Bay in order to protect the Bay’s health and ensure public access. To this end, state law authorizes the commission—which consists of 27 commissioners and 48 staff members—to issue permits for certain actions, including placing material in the Bay or removing material from it.1 The commission is also responsible for ensuring that permit holders comply with the terms of their permits and with state law, and it has the ability to enforce compliance through a system of fines and penalties. However, as we discuss throughout the report, the commission has consistently struggled to perform key responsibilities related to enforcement and has therefore allowed ongoing harm to the Bay.
Although enforcing state law and the terms of its permits is critical to the commission’s ability to protect the Bay, it has a backlog of 230 enforcement cases, some of which are more than a decade old. Moreover, its annual reports suggest that the backlog will continue to expand, as staff opened 14 more cases on average than they closed annually from 2012 through 2017. Some of the potential violations of state law and permit requirements contained in the backlog may represent ongoing harm to the Bay or its shoreline. For example, one case opened in 2010 involves 200 vessels anchored illegally in Richardson Bay, a shallow, ecologically rich arm of the San Francisco Bay. Commission staff have indicated that many of these boats are in a state of disrepair and that they frequently sink, resulting in the release of harmful chemicals into the Bay. Although the illegally moored boats in Richardson Bay have harmed a delicate ecosystem, the commission has done little to resolve the situation. Further, to address its backlog, the commissioners are currently considering proposals to grant amnesty to certain categories of enforcement cases, which could lead to the commission dismissing the cases without the violators taking corrective actions. This approach could allow the activities that caused the violations to continue, potentially indefinitely, as well as create future litigation risks from both environmental groups and alleged violators who do not receive amnesty.
Moreover, unless the commissioners take action to address the causes of the backlog, they risk having it continue to grow or to reoccur, despite the outcome of the various amnesty proposals. In particular, staff’s willingness to expend significant time attempting to settle enforcement cases before referring them to the commissioners has led to some cases remaining open for many years. When we reviewed seven cases for which the commission had initiated formal enforcement, we found that the cases had been open between one and 17 years—or seven and a half years on average—before staff referred them to the commissioners. During these years, the commission essentially allowed the harm resulting from the violations to continue unresolved.
The commissioners have also not provided sufficient leadership and guidance for their enforcement process. Commission regulations do not authorize staff to process enforcement cases representing significant harm to the Bay without formal enforcement, which includes an enforcement hearing before the commissioners, referral from the commissioners to the Office of the Attorney General, or a temporary cease-and-desist order issued by the executive director. However, the regulations lack a specific definition of significant harm that would guide staff in knowing when to forward such cases. As a result, the commissioners have improperly delegated their enforcement authority by allowing staff to decide which cases represent significant harm. In one instance, commission staff decided to close a case involving a beached tugboat and allowed it to decay in the Bay for years—a clear violation of law—without taking any action to resolve it or referring it to the commissioners. The boat remained in the Bay, corroding and deteriorating, as of April 2019. Further, from October 2011 through June 2016, the commissioners were not hearing enforcement cases, as the commission’s enforcement committee did not meet. As a result, staff handled all cases, including some that could cause significant harm to the Bay, during that period of time.
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Since 1987 the commission has also not fulfilled its role as the primary state agency responsible for implementing the Suisun Marsh Preservation Act and overseeing the implementation of the Suisun Marsh local protection program (marsh program). The commission indicated in 1976 that protection of the marsh was of paramount importance because it makes up almost 10 percent of the remaining natural wetlands in California and forms a critical habitat for endangered California wildlife. State law requires the commission to ensure that local agencies are effectively implementing the marsh program that the agencies created and the commission certified in 1982. The marsh program was intended to protect the Suisun Marsh, and the commission was to issue recommendations for corrective action as necessary. However, according to the commission, it has never issued such recommendations. The commission has conducted limited work related to the marsh, such as working with participating agencies to update their parts of the marsh program, and in March 2019 the commissioners approved a staff recommendation to conduct a comprehensive review of the marsh program. Nonetheless, the commission has not conducted a review of the marsh program every five years, as state law requires. This increased the risk that elements of the marsh program were not current or were not working as intended to protect the marsh.
Further, the commission’s approach to identifying individual violations has led to inconsistencies in its imposition of fines. The commission issues fines up to a maximum of $30,000 per violation, but a single case may involve multiple violations and thus incur multiple fines. Consequently, clearly identifying what constitutes a single violation is critical to the enforcement process; however, neither state law nor commission regulations give guidance on this issue. Without such clarity, staff have been inconsistent in deciding how many violations specific cases involve. For example, in one instance, staff treated dredging and dumping as a single violation and sought a maximum penalty of $30,000, but in another case involving dredging and dumping staff treated them as two separate violations, subjecting the violator to a penalty of $60,000. Until the commissioners provide sufficient guidance to staff regarding what constitutes an individual violation, they risk resolving cases in an inconsistent and unfair manner that could cost some violators thousands of dollars more than others who commit similar violations.
Finally, although the commission indicated that it recently attempted to resolve certain enforcement issues by creating a system for scoring and prioritizing the cases it handles, the system is too complex to accomplish this goal effectively. Staff told us they have spent hundreds of hours refining the system, which is in use but still under development. Moreover, our review of the system indicated that it might not be effective in its fundamental goal of identifying cases that should be a high priority. For example, we found an open case in South San Francisco that did not meet the commission’s high-priority threshold even though it included multiple alleged violations involving illegal boats used as residences, abandoned vessels, discharge of wastewater, and debris from wrecked boats on the shoreline.