Public Access to the Bay

Behind Westpoint Harbor (WPH) marina stands environmentalist Mark Sanders.  Mark is a boater with a vision for an environmentally-sound marina with public access to the San Francisco Bay. That vision includes the entire public, from pedestrians and kayakers to large boat owners as well as the many Bay area maritime and environmental groups without docks and Bay access to support their important missions to improve the Bay environment and educate the public about the Bay as well as those using boating for a social good. 

With that great idea, Mark founded Westpoint Harbor LLC in 1993, putting his own money and energy into achieving this vision in the San Francisco Bay.  Mark is a former Navy Officer, engineer, and retired CEO of a highly successful public broadcast company.  Mark is well known for his integrity, resolution, and attention to detail.  For nearly thirty years, he has steadfastly navigated and kept records of his passage through the Bay Conservation and Development Commission (BCDC) permit process and successfully made it through the regulatory maze of the dozen other government agencies that had varying levels of oversight for his proposed marina development to obtain permits and build what has quickly become an award-winning and exemplary green marina: Westpoint Harbor.  

The BCDC was set up over 50 years ago as a commission to implement the McAteer-Petris Act to deal with imminent threats to both the Bay environment and public access.  The California Coastal Commission was later established to State-wide perform similar functions but BCDC remained in the Bay area.

The BCDC mission is to protect and enhance San Francisco Bay and to encourage the Bay’s responsible and productive use for this and future generations.

State law requires sponsors of projects that propose to fill or extract materials from the Bay to apply for a BCDC permit.

In addition to minimizing any fill required for an appropriate project and ensuring that the project is compatible with the conservation of Bay resources, BCDC is tasked with requiring maximum feasible public access within its 100-foot shoreline band in the Bay.

Unlike projects that create Bay fill, WPH cleaned up an industrial waste site creating 26.6 acres of new Bay surface that became the marina basin and used the excavated material to create 24 acres of uplands to provide new public access for citizens of California as well as support a variety of improvements to the environment of the San Francisco Bay.

Since opening Phase I in 2008, the WPH and its employees have consistently taken actions to

• protect and improve the Bay environment,
• foster and encourage Bay access for pedestrians and boaters alike,
• protect the personal security and boating safety of boaters in the harbor, and
• encourage safe boating in the San Francisco Bay.

The full WPH development plan includes phases not yet built and provides significant additional public access to the Bay.

The mission of BCDC and achievements of Westpoint Harbor are consistent.  The marina could easily be referenced by the BCDC as a shining example of environmentally sound Bay development enhancing public access and supporting the BCDC mission.

So why is BCDC proposing a Cease and Desist order and over $543,000 of fines for WPH that threatens this green marina?

Detailed Analysis including link to the 139 page WPH response LINK.
From the detailed look at the responses to the allegations, we can identify a few circumstances within BCDC that may underly the problem:

• lack of oversight
• disorganization and ignoring process
• poorly written permit
• heavy dependence on a few individuals on a small staff
• renewed interest in enforcement revenues
• enforcement bias and targeting

BCDC has never had the same layered oversight and administrative controls that safeguard other California resource agencies and today BCDC does not report to the California Natural Resource Agency where it might receive similar oversight as other resource agencies.  Instead, BCDC reports directly to the Governor’s office where overseeing BCDC’s seemingly straightforward administrative processes may end up pushed aside while larger and more complex agencies and issues crowd the Governor’s office on any given day.

The small agency is also heavily dependent upon a few employees and thus BCDC work products—including permit administration and enforcement—are especially vulnerable to the strengths, weakness, technical competence, and objectivity of individual staff.

Following staff reductions and a decade of disorganization including not enforcing permits and not working with permit holders towards compliance, in 2016 and 2017 BCDC publicly acknowledged their decade-long enforcement holiday and re-energized their enforcement efforts with what may be thought of as more enthusiasm than diligence.

In the case of WPH, BCDC’s past lack of organization and inability to follow their own administrative processes has created a permit that is inconsistent.  The permit contains conflicts and ambiguity that provide rich opportunities for reinterpretations by BCDC staff to create–at any time–new enforcement actions that cannot be complied with by WPH.

A Public Records Act request found internal documents by enforcement staff within BCDC in 2010 which identified WPH as a “Big Juicy Case” for potential future enforcement.  With the poorly written permit coupled with the scope and complexity of marina, boatyard and retail phases at WPH, as well as the animosity between BCDC staff and WPH, it is not surprising to see WPH high on the list of permittees BCDC targeted for immediate enforcement efforts.

WPH is a small business.  Small businesses do not have deep pockets to fight BCDC as large corporations would be able to do.  This likely increases the odds of enforcement targeting because small businesses will largely pay fines rather than fight in court.

BCDC PERMIT AND ENFORCEMENT DISORGANIZATION

With the WPH permit, BCDC’s disorganization included:

• spotty record-keeping,
• an absence of timely responses to the permittee’s submittals,
• lack of written communication of the verbal approvals BCDC periodically provided to the permittee,
• and BCDC’s removal of clarifying permit language and illustrative plans while staff was simplifying the permit for their own administration.

This agency disorganization created:

• the opportunity for multiple interpretations of permit requirements, and
• opportunity for multiple allegations of violations of the permit.

After several attempts to reconcile permit requirements during several years of the BCDC enforcement holiday and after requests to BCDC by the permittee for proper administrative oversight of BCDC staff errant efforts, BCDC was unable to acknowledge errors or amend the permit to remove errors and did not remedy failures in administrative processes.  Instead, BCDC staff worked on creating a list of allegations and fines for the permittee to bear the high cost of the improper permit administration by BCDC staff. 

It is detrimental to the public, environment, and the WPH for the excellent public access and environmental improvements to the Bay at the site of the WPH to be reduced or removed because of disorganization or conflicts within BCDC.  It is also harmful to the People of California for BCDC to continue to operate without proper adherence to its administrative processes and with inadequate oversight provided by the State.

This discussion focuses on the matter of Westpoint Harbor Marina, CDO 2017-04.  But really, this appears to be an indicator of a deep problem with BCDC itself.  Just a few days ago, on December 26^th, a Solano County Superior Court Judge, Harry Kinnicutt, ruled to set aside the BCDC fines against John Sweeney, the owner of a 39-acre island in the San Francisco Bay Delta estuary. He ruled that $752,000 of BCDC violation fines were built on questionable evidence and found the government’s actions to be vindictive. [1, 2]

Read more details here about the individual violations and BCDC behaviors that appear to underly their allegations against the Westpoint Harbor marina. This includes a Google Sheet spreadsheet with links to the Westpoint Harbor responses to the violations!

The BCDC Enforcement Committee Meeting  was held on January 18. 2018 and the Westpoint Harbor Marina Enforcement Action was on the agenda but was retracted by BCDC.  Public comments were heard.  The next BCDC Commission meeting that should hear the Cease and Desist Order against Westpoint Harbor is March 15, 2018. 

More information will be available here when the March meeting agenda is set.   

Opinions expressed on this page are the author’s alone.  Please do look into this matter for yourself and send an email or make a call to the legislators (assembly members and senators), governor, and BCDC Commissioners to put an end to this misdirection and waste of government resources.