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DIVISION 5. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION
2-CCR14div05.txt - CCR - 8/24/2006 0:00:00 - Regulation - CA

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State
California Regulations
TITLE 14. NATURAL RESOURCES DIVISION 5. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION

database is current through 08/11/06, Register 2006, No. 32.

s 10110. Purpose of Regulations.

These regulations supplement and interpret the McAteer-Petris Act (Sections 66600 through 66661 of the Government Code), the Suisun Marsh Preservation Act (Sections 29000 through 29610 of the Public Resources Code), the San Francisco Bay Conservation and Development Commission's San Francisco Bay Plan, the San Francisco Bay Conservation and Development Commission's Suisun Marsh Protection Plan, the Coastal Zone Management Act of 1972, as amended (16 U.S.C. Sections 1451 through 1464), the California Environmental Quality Act (Sections 21000 through 21176 of the Public Resources Code), and the act creating the State Coastal Conservancy (Division 21 of the Public Resources Code), as all of them may be amended from time to time. No attempt has been made to reproduce in these regulations the definitions, policies, and other provisions found in the Acts and in the Plans. Therefore, these regulations should be read together with the Acts and the Plans.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Title 7.2, Government Code; Divisions 13, 19 and 21, Public Resources Code; San Francisco Bay Plan; Suisun Marsh Protection Plan; and 16 U.S.C. Sections 1451-1464(a).




s 10111. Explanation of References.

References in these regulations to "Chapter____," "Subchapter____," "Article____," "Section____," and "Paragraph (____)" denote subdivisions of these regulations.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Title 7.2, Government Code; and Divisions 13, 19 and 21, Public Resources Code.


s 10120. Emergency.

"Emergency," as used in the McAteer-Petris Act, the Suisun Marsh Preservation Act, and in these regulations other than in the context of calling an emergency meeting means a situation that poses an immediate danger to life, health, property, or essential public services and that demands action by the Commission more quickly than the Commission's normal permit procedures would allow. A situation that poses an immediate danger to life, health, property, or essential public services may include, for example, an accident, sabotage, vandalism, fire, flood, earthquake, or soil or geologic movements.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 66632(f) and 11125.5, Government Code; and Section 29509(a), Public Resources Code.

s 10121. San Francisco Bay and Certain Waterways Jurisdiction.

These regulations shall refer to the upland boundary of the Commission's jurisdiction over "San Francisco Bay," pursuant to GovernmentCode Section 66610(a) ( "San Francisco Bay" jurisdiction), and the upland boundary of the Commission's jurisdiction over those certain waterways listed in Government Code Section 66610(e) ( "certain waterways" jurisdiction) as "the shoreline." The shoreline shall be defined as being located at mean high water in areas other than tital marsh and at five feet above mean sea level in areas of tital marsh. Where necessary to distinguish the upland edge of the Commission's San Francisco Bay jurisdiction from the upland edge of the Commission's certain waterways jurisdiction, these regulations refer to the former as "San Francisco Bay shoreline" and the latter as "the certain waterways shoreline."

(b) The Commission's San Francisco Bay and certain waterways jurisdictions include all bodies of water having the nature of open water, however named, including sloughs, harbors, straits, channels, estuaries, bays, marinas, basins, and coves up to the shoreline;

(c) The Commission's San Francisco Bay jurisdiction includes those portions of other waterways, however named, that are in fact parts of San Francisco Bay rather than tributaries and that are shown as parts of San Francisco Bay on the San Francisco Bay Plan Maps, including but not limited to:

Map No. Name and Location
3 Castro Creek (Richmond) adjacent to the remaining marsh
5 Mt. Eden Creek (Hayward), passing through the remaining
marsh
5 Alameda Creek Flood Control Channel (Hayward), passing
through the remaining marsh
6 & 7 Coyote Creek, bayward of the railroad crossing (Fremont and

Santa Clara County)
8 San Francisquito Creek (Palo Alto), bayward of the inland
boundary of the Faber Tract
9 Redwood Creek (Redwood City), from the Redwood City
Municipal Yacht Harbor bayward
10 Islais Creek (San Francisco)
11 Corte Madera Creek, bayward of the railroad crossing
(Marin County)
12 Galinas Creek (Marin County), bayward of the junction of the
North and South Forks
12 Novato Creek (Marin County), bayward of the eastern high
tension line as it existed on September 17, 1965
12 & 13 Petaluma River, bayward of the Highway 37 bridge (Marin and
Sonoma Counties)
12 & 13 Tolay Creek, bayward of the northernmost point of Lower Tubbs
Island near the Island Land Club (Sonoma County)
14 Sonoma Creek, bayward of the Highway 37 bridge (Sonoma and
Solano Counties)
14 & 15 Napa River, bayward of the Highway 37 bridge (Vallejo); and


(d) The Commission's San Francisco Bay jurisdiction includes Spoonbill creek and the unnamed cut running northward just east of Collinsville, Solano County, but not including water areas lying generally southward of a line drawn from Simmons Point northeasterly along the southern shoreline of Chipps Island, Van Sickle Island, and the mainland, to the mouth of Marshall Cut.


Note: Authority cited: Section 66632(f), Government Code. Reference: Section 66610(a), Government Code; Littoral Dev. Co. v. San Francisco Bay Conservation and Dev. Comm'n (1994) 24 Cal.App. 4th 1050, 29 Cal. Rptr. 2d 518.


s 10122. Slough.

"Slough" means:

(a) a stream of water labelled as a slough on the U.S. Geological Survey maps current as of September 1, 1968; or

(b) any other stream of water that passes through a tidal marsh or mudflat or a former tidal marsh or mudflat extending up to the shoreline, except those certain waterways covered by the provisions of subdivision (e) of Government Code Section 66610 and those waterways enumerated in Section 10121(b).


Note: Authority cited: Section 66632(f), Government Code. Reference: Section 66610(a); and Littoral Dev. Co. v. San Francisco Bay Conservation and Dev. Comm'n (1994) 24 Cal.App. 4th 1050, 29 Cal. Rptr. 2d 518.

s 10123. Areas Excluded From Commission Jurisdiction.

(a) An area that would fall within the Commission's jurisdiction only as the result of the natural destruction of a man-made works, such as a dike, levee, or other similar tidal control structure, shall remain excluded from the Commission's jurisdiction for a period ending one year after the Commission has given an affected property owner written notice of the potential extension of the Commission's jurisdiction as a result of the destruction, or for such longer period as may be specified by Commission resolution based upon its finding that repairs of the destruction could not physically be completed within one year after receipt of written notice of the potential extension of the Commission's jurisdiction; and

(b) An area that would fall within the Commission's "San Francisco Bay" jurisdiction or within its "certain waterways" jurisdiction shall be and remain excluded from the Commission's jurisdiction if it could, on and at all times subsequent to September 17, 1965, have been removed from being touched by tidal waters by simply closing a functioning tidal gate.


Note: Authority cited: Section 66632(f), Government Code. Reference: Sections 66610(a) and (e), Government Code; and Blumenfeld v. San Francisco Bay Conservation and Development Commission, 43 Cal. App. 3d 50 (1974); and Littoral Dev. Co. v. San Francisco Bay Conservation and Dev. Comm'n (1994) 24 Cal.App. 4th 1050, 29 Cal. Rptr. 2d 518.


s 10124. Coastal Management Program for San Francisco Bay.

"Coastal Management Program for San Francisco Bay" means the documents for the San Francisco Bay segment of the California coastal zone approved as consistent with the Coastal Zone Management Act of 1972, as amended, by the Office of Coastal Zone Management, United States National Oceanic and Atmospheric Administration. It consists of a narrative portion that describes the Bay segment of the California Coastal Zone Management Program and BCDC compliance with the requirements established by the Office of Ocean and Coastal Resource Management under Section 306 of the Coastal Zone Management Act. It also contains appendices that include all relevant statutes, plans, and regulations.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: The Coastal Zone Management Act, as amended, 16 USC Sections 1451-1464; and Section 29205, Public Resources Code.

s 10125. Substantial Change.

"Substantial change in use" includes any one of the following:

(a) as to any "salt pond" or "managed wetland," any change in use including abandonment which, for the purposes of this section, shall include any draining of water except temporary draining for a short period of time in accordance with routine operating practice; or

(b) 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) 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.


Note: Authority cited: Section 66632(f), Government Code. Reference: Sections 66632(a) and 66654, Government Code.


s 10126. Members of the Commission.

"Members of the Commission," "members," and "Commissioner," means any Commissioner appointed pursuant to Section 66620 of the Government Code and any Alternate appointed pursuant to Section 66622 of the Government Code, provided that a Commissioner and his or her Alternate may not both constitute the two members of the Commission appealing an action pursuant to Section 29522 of the Public Resources Code.


Note: Authority cited: Section 29201(e), Public Resources Code. Reference: Section 29522, Public Resources Code; and Section 1774, Government Code.

s 10127. Houseboat.

A "houseboat" is a boat that is used for a residential or other nonwater-oriented purpose and that is not capable of being used for active navigation.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; Section 29008, Public Resources Code; and the San Francisco Bay Conservation and Development Commission, San Francisco Bay Plan, Recreation (As amended March 20, 1986, pursuant to Government Code Section 66652).

s 10128. Live-Aboard Boat.

A "live-aboard boat" is a boat that is not a transient boat, that is capable of being used for active self-propelled navigation, and that is occupied as a residence as that term is defined in California Government Code Section 244.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; Section 29008, Public Resources Code; and the San Francisco Bay Conservation and Development Commission, San Francisco Bay Plan, Other Uses of the Bay and Shoreline (As amended March 20, 1986, pursuant to Government Code Section 66652).


s 10129. Line of Highest Tidal Action.


Note: Authority cited: Section 66632(f), Government Code. Reference: Sections 66610(a) and 66610(e), Government Code.


s 10130. Exclusion of Extraction of Materials for Sampling.

The term "extraction of materials worth more than $20" as used in the McAteer-Petris Act and the term "extraction of material" as used in the Suisun Marsh Preservation Act shall exclude the extraction of any material or materials for environmental or seismic testing purposes only.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 66604 and 66632(a), Government Code; and Sections 29114 and 29508, PublicResources Code.


s 10131. McAteer-Petris Act Jurisdiction and Bay Plan.

The information shown on the San Francisco Bay Plan Maps is intended to portray the actual location of land and water, salt ponds, managed wetlands, certain hills, marshes, and man-made features; however, the maps do not establish the extent of the Commission's jurisdiction. In case of any discrepancy between the portrayal of a feature on a Bay Plan Map and the descriptions in Government Code Section 66610 or these regulations, the provisions of Government Code Section 66610 and these regulations shall prevail.


Note: Authority cited: Section 66632(f), Government Code. Reference: Sections 66602, 66610 and 66653, Government Code; and San Francisco Bay Plan.

s 10132. Exclusion of Larkspur and Greenbrae Boardwalk Areas from McAteer-Petris Act Jurisdiction.

"Areas commonly known as the Larkspur and Greenbrae Boardwalks," means:

(a) within the City of Larkspur, any area, excepting certain sloughs, situated within the area described in the "Notice of Non-Jurisdiction of the BCDC - Larkspur Boardwalk" appearing as Appendix A to these regulations and filed by the Executive Director with the County of Marin; and

(b) within the County of Marin, any area, excepting certain sloughs, situated within the area described in the "Notice of Non-Jurisdiction of the BCDC - Greenbrae Boardwalk" appearing as Appendix B to these regulations and filed by the Executive Director with the County of Marin.


Note: Authority cited: Sections 66610 and 66632(f), Government Code. Reference: Section 66610(e), Government Code.


s 10133. Determination of Shoreline and Map Boundaries.

(a) Upon written request, the Commission's staff will furnish a description in words of the Commission's jurisdiction. Upon written request and upon submission by any person of a map at an appropriate scale and showing sufficient topographic data, the Commission's staff will indicate upon such map or a copy thereof the location of the Commission's jurisdiction or of any particular boundary in a particular area represented by one or more of the San Francisco Bay Plan Maps.

(b) Upon written request from any person who has obtained a map or description as provided in the preceding paragraph, the Commission shall by resolution determine by map or in words the location of the Commission's jurisdiction.

(c) These maps or descriptions in words need not be based upon surveys performed for the Commission, but may be based on any reliable sources available.


Note: Authority cited: Section 66632(f), Government Code. Reference: Sections 66602, 66610 and 66653, Government Code; and San Francisco Bay Plan.


s 10134. Determination of Permit Requirements for Subdivisions.

(a) Within 15 days of receipt of a written request, the Executive Director shall determine whether a proposed subdivision or other division of land constitutes a substantial change in use requiring a permit; provided that the request is accompanied by the following information:

(1) the name and address of all current owners of the property;

(2) the name and address of the person making the request;

(3) proof that the person making the request has sufficient legal interest in the property as provided in Appendix F or is an affected local government;

(4) an accurate map at a scale reasonably sufficient to evaluate the project and that shows (A) the existing and proposed parcel lines; (B) the topography of the site; (C) the shoreline and the upland edge of the Commission's 100-foot shoreline band jurisdiction; (D) existing structures, uses, and vegetation on the site; and (E) public streets in the vicinity of the property.

(b) A person submitting a request pursuant to paragraph (a) may appeal the decision of the Executive Director to the Commission, which shall by resolution determine whether the request was properly submitted and whether the proposed subdivision or other division of land constitutes a substantial change in use. The appeal shall be in writing and shall contain the reasons for disagreement with the decision of the Executive Director.


Note: Authority cited: Section 66632(f), Government Code. Reference: Section 66632, Government Code; and Littoral Dev. Co. v. San Francisco Bay Conservation and Dev. Comm'n (1994) 24 Cal.App. 4th 1050, 29 Cal. Rptr. 2d 518.


s 10210. Date and Time.

The Commission shall ordinarily hold regular meetings on the first and third Thursday of each month. The meetings shall begin at an hour set by resolution of the Commission.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520(a), Public Resources Code.


s 10211. Changes.

The Chair may change the starting time of any meeting if he or she expects the meeting to be unusually long or if it conflicts with other meetings. The Chair may also cancel or reschedule a regularly scheduled meeting to the preceding day or the following day if it conflicts with a holiday or if a quorum cannot be expected on the scheduled day.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520(a), Public Resources Code.


s 10212. Notice of Changes.

Any changes in a regularly scheduled meeting time may be made by giving notice thereof as provided in Section 10213 or as provided in Section 10231.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125, Government Code.


s 10213. Meeting Notice.

Written notice of the time and place of a regularly scheduled meeting and a preliminary agenda shall be mailed by first class not less than ten (10) working days before the meeting. If an interruption in regular mail service occurs, alternative notice may be given. Such alternative notice shall consist of telephoning each Commissioner and each Alternate and publishing a notice of the time and place of the meeting and a summary of the preliminary agenda in a newspaper of general circulation not less than ten (10) working days before the meeting.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125, Government Code.


s 10214. Who Shall Receive Notice.

The notice shall be mailed to Commission members, to all parties to the proceedings on the agenda, to interested organizations and individuals, to owners and residents of nearby property identified by the applicant pursuant to Appendix D item 20, and to any person who requests the notice in writing. The Executive Director may require each person requesting the notice to provide the necessary number of self-addressed, stamped, four-inch by nine and one-half inch envelopes for the purpose of mailing the notice.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125, Government Code.


s 10220. Time and How Called.

A special meeting may be called for any day during normal working hours by resolution of the Commission, by written petition of a majority of the full Commission, or by written call of the Chair.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520(a), Public Resources Code.


s 10221. Notice.

Notice of any special meeting shall be given as provided in Section 10213.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125, Government Code.


s 10230. Time and Reason For.

The Chair may call an emergency meeting for any day and time if Commission action is or may be needed in a situation that poses danger to life, health, or property.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125.5, Government Code.


s 10231. Notice.

Members of the Commission shall be notified of an emergency meeting at least thirty-six (36) hours prior to the meeting.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125.5, Government Code.


s 10232. Prerequisites for Commission Action.

The Commission shall not vote on any matter at any emergency meeting unless it first determines by a vote of three-fourths of the members present that the matter may involve danger to life, health, or property and may need Commission action to avoid or mitigate the danger.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code.


s 10240. Quorum.

A quorum for all Commission meetings shall be fourteen (14) members, of whom thirteen (13) must be non-federal representatives. The Commission shall take no action in the absence of a quorum except that a lesser number of members may adjourn a meeting, may act as a committee to continue a public hearing, and may act as a committee of the Commission for such purposes as the Commission or Chair specified in appointing the committee.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520, Public Resources Code.


s 10241. Voting -Number Required to Authorize Action.

Except as otherwise provided in Title 7.2 of the Government Code, in Sections 29000 through 29610 of the Public Resources Code, or in these regulations, actions of the Commission, including passage of resolutions not subject to special provisions, shall be by vote of a majority of the members present and voting.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Title 7.2, Government Code; and Division 19, Public Resources Code.


s 10242. Procedures -Robert's Rules of Order.

The Commission shall follow Robert's Rules of Order unless the rules conflict with Title 7.2 of the Government Code, Sections 29000 through 29610 of the Public Resources Code, or these regulations. The appropriate code section or regulation will govern if such a conflict exists.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520, Public Resources Code.


s 10243. Agenda.

(a) The Executive Director shall set the agenda for regular meetings.

(b) The Chair may alter the sequence of the agenda for any particular meeting if he or she believes such change is desirable.

(c) The Executive Director or the Chair may set specific times for the consideration of particular items.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520, Public Resources Code.


s 10244. Recording of Meetings.

Commission meetings shall be recorded electronically unless equipment failure prevents this. The Commission staff shall retain each recording for at least one year and shall make it reasonably available for replaying at the Commission's offices.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520, Public Resources Code.


s 10245. Minutes of Meetings.

(a) The Commission shall keep full and accurate minutes of its meetings and make them available to the public.

(b) The Executive Director and the Chair at a particular meeting shall sign the minutes.

(c) Signed minutes shall be the original evidence of actions taken by the Commission.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520, Public Resources Code.


s 10246. Public Comment Period.

(a) At each Commission meeting, the Commission shall provide the public with an opportunity to address the Commission on any matter on which the Commission has not already held a public hearing and which is not scheduled for a public hearing during the meeting.

(b) The Commission may provide the public the opportunity required by subdivision (a) either prior to or as part of Commission consideration of the matter on which comments would be offered.

(c) Speakers shall be heard in the order in which they sign up and shall generally be limited to three minutes each. The total time for public comment shall generally be limited to a total of fifteen (15) minutes.

(d) The Commission may provide more time to each speaker and may extend the total time available for public comment beyond fifteen (15) minutes if the Commission or the Chair believes that such an extension is necessary to allow a reasonable opportunity for all members of the public who want to testify.

(e) Members of the public who believe that they need additional opportunity to communicate with the Commission may present written material to the Commission at any time subject to such deadlines as the Commission or Chair may impose concerning matters for which specific Commission action may be required in the future.

(f) The Executive Director shall insure that copies of all written materials received prior to any deadline established by the Commission or the Chair are provided to the Commission in a timely manner.

(g) The Commission shall not take any action on any matter raised during the public comment period other than to schedule the matter for a future meeting agenda or to refer the matter to the staff for investigation unless the matter is already scheduled for action by the Commission later in the meeting.


Note: Authority cited: Sections 11125.7 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 11125.7, Government Code.


s 10250. Duties of the Chair.

(a) The Chair shall preside at all meetings of the Commission, shall execute documents for the Commission requiring such executionand shall perform such other duties as the Commission provides by resolution.

(b) The Chair shall, in collaboration with and with the concurrence of the Commission, appoint the members and chair persons of the Design Review Board, the Engineering Criteria Review Board, the Citizen's Advisory Committee, and representatives of the Commission to boards, committees, and other commissions as may be necessary.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520(a), Public Resources Code.


s 10251. Duties of Vice Chair.

In the absence of the Chair, the Vice Chair shall perform those duties of the Chair that cannot reasonably await the return of the Chair.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201, Public Resources Code. Reference: Section 66632, Government Code; and Section 29520(a), Public Resources Code.


s 10252. Acting Chair.

The Chair or, in the absence of the Chair, the Vice Chair or, in the absence of the Chair and the Vice Chair, a majority of the Commission shall appoint an Acting Chair when neither the Chair nor Vice Chair may be available to perform the duties of the Chair.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29520(a), Public Resources Code.


s 10260. Executive Director -Appointment and Term.

The Commission shall appoint an Executive Director to serve at the pleasure of the majority of the members of the Commission.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66635, Government Code; and Section 29520(a), Public Resources Code.


s 10261. Executive Director -Duties and Delegation.

(a) The Executive Director shall administer the affairs of the Commission in accordance with the direction and policies of the Commission. He or she shall also appoint such other employees as may be necessary to carry out the functions of the Commission. Appointments of staff members shall be presumed to be approved by the Commission unless the Commission objects by a majority vote at the meeting when the Executive Director announces the appointment.

(b) Except as specifically provided by Commission resolution, the Executive Director may delegate the performance of any of his or her functions, including those specifically prescribed by the McAteer-Petris Act, the Suisun Marsh Preservation Act, or by these regulations, but such delegation shall not affect his or her responsibility to see that the directions and policies of the Commission are carried out fully and faithfully.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66635, Government Code; and Section 29520(a), Public Resources Code.


s 10262. Acting Executive Director.

(a) The Executive Director shall designate a member of the staff to serve as acting Executive Director while the Executive Director is absent or unable to perform his or her regular duties.

(b) If the Executive Director is unable to perform his or her regular duties and has not designated an acting Executive Director, the Chair may perform those duties or may designate an acting Executive Director.

(c) The acting Executive Director shall have the same powers, duties, and responsibilities as the Executive Director.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66635, Government Code; and Section 29520(a), Public Resources Code.

s 10270. Membership and Function of Design Review Board.

(a) The Design Review Board shall consist of seven (7) members of the design professions, including at least one (1) architect, one (1) landscape architect, and one (1) engineer.

(b) The Board shall advise the Commission and the staff on the appearance and design of projects for which a Commission permit or consistency determination is needed, particularly as the project affects public access to the Bay and shoreline.

(c) Four members shall constitute a quorum for Board meetings and shall be the minimum necessary for the Board to consider any matter.

(d) The Commission may designate up to ten former Board members to act as a pool of alternates to substitute for current Board members who cannot participate in any Board meeting or the consideration of any specific matter at any Board meeting.

(e) When fewer than all seven members of the Board will be available to participate in the Board's consideration of a matter, the Executive Director may designate one or more alternate Board members selected from the pool established by the Commission pursuant to paragraph (d) to substitute for the Board member or members who cannot participate in the Board's consideration of and action on that matter so long as the total number of Board members that considers a matter does not exceed seven.

(f) When designating an alternate Board member pursuant to paragraph (e), the Executive Director shall select an individual in a professional discipline and with professional experience as mush as possible like those of the Board member who cannot participate in the Board's consideration of the particular matter.

(g) Alternate Board members designated pursuant to paragraphs (e) and (f) shall have the same powers and authority to participate in the Board's consideration and action on any matter as a regular Board member.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66635, Government Code; and Section 29520(a), Public Resources Code.

s 10271. Membership and Function of Engineering Criteria Review Board.

The Engineering Criteria Review Board shall consist of not more than eleven (11) members, including at least one (1) geologist, one (1) civil engineer specializing in soils, one (1) structural engineer, and one (1) architect. The Board shall advise the Commission on problems relating to the safety of fills and of structures on fills.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66633(b), Government Code; Section 29520(a), Public Resources Code; and San Francisco Bay Plan.


s 10280. Purpose.

Fairness and due process of law are essential elements of responsible government. Public confidence in government is highest when an agency conducts its adjudicatory business openly and impartially. This regulation supplements and helps explain minimum legal requirements concerning the disclosure of communications that occur outside of the normal hearing process and would therefore not be part of the administrative record when the Commission acts on permit applications and on enforcement cases and takes other adjudicatory actions. However, Commission members can, and are encouraged to, disclose more information relative to any communication that occurs outside of the public record to ensure that all Commission members can make informed decisions.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.10, 11430.20, 11430.30, 11430.40, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10281. Definition of an Ex Parte Communication.

An ex parte communication is any oral or written communication regarding a pending adjudicatory proceeding between a member of the Commission and either any party to the pending Commission adjudicatory proceeding or a member of the public that does not occur in a Commission public hearing, Commission workshop, or other official Commission proceeding or on the official Commission record for the proceeding.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11405.20, 11405.30, 11405.40, 11405.50, 11405.60, 11405.70, 11405.80, 11410.10, 11410.20, 11430.10, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10282. Definitions of a Quasi-Judicial Proceeding and of a Quasi-Legislative Proceeding.

All Commission actions are considered to be either adjudicatory or quasi-legislative. An adjudicatory action by the Commission affects specific rights or interests of an individual or business entity based on specific facts, such as the granting of a permit, the issuance of a cease and desist order, the issuance of a report to the California Energy Commission pursuant to California Government Code Section 66645(d), or Commission review of a federal consistency determination or certification. A quasi-legislative action generally applies to a given class or group of individuals or entities and usually takes the form of a Commission plan amendment, policy, or regulation.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.10, 66632, 66638 and 66645(d), Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10283. General Policy and Disclosure of Ex Parte Communications.

(a) Ex parte communications are prohibited in adjudicatory actions. However, if such a prohibited communication occurs, any Commission member who receives an ex parte communication concerning any adjudicatory matter pending before the Commission shall disclose the content of the communication on the record.

(b) The disclosure shall occur prior to or at the same time as the Commission considers the matter that is the subject of the ex parte communication.

(c) Compliance with this disclosure requirement regarding the receipt of an ex parte communication in written form shall be accomplished by sending a copy of the written communication and any response to the communication to the Commission Executive Director as soon as practicable.

(d) Compliance with this disclosure requirement regarding the receipt of an ex parte communication orally shall be accomplished by submitting a memorandum to the Executive Director for inclusion into the record of the matter that is the subject of the ex parte communication.

(e) The memorandum required by paragraph (d) shall include the substance of the communication, any response by the recipient Commission member, and the identity of each person from whom the recipient Commission member received the communication.

(f) This policy shall not apply to quasi-legislative matters such as the adoption of or the amendment to a Commission plan, the adoption of or the amendment of a Commission regulation, and Commission comments on proposed or pending legislation.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections11430.10, 11430.40, 66632, and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10284. Permissible Ex Parte Communications.

The following types of ex parte communications are not prohibited by these regulations and do not require any disclosure into the record:

(a) communications specifically authorized by statute and required for the disposition of an adjudicatory matter;

(b) the communication involves a matter of procedure or practice that is not in controversy;

(c) the communication is from an employee or representative of BCDC who has not served as an investigator, prosecutor, or advocate during the proceeding or pre-adjudicative state and whose purpose is to assist or advise the Commission;

(d) the communication is from an employee or representative of BCDC and concerns a settlement proposal advocated by the employee or representative; and

(e) the communication is from an employee or representative of BCDC and involves a non-prosecutorial proceeding.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.20, 11430.30, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10285. When the Policy Applies.

(a) The policy established by Sections 10283 and 10284 shall commence to apply for a permit application or a federal consistency determination or certification when an applicant first submits an application, a consistency determination, or a consistency certification to the Commission.

(b) The policy shall commence to apply for a Commission enforcement action when the Commission staff mails either a violation report or a complaint for the imposition of administrative civil penalties.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.10, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10286. Notification of Parties and Interested Persons.

(a) As soon as is practicable, the Executive Director shall notify in writing all parties to a proceeding and all persons interested in the proceeding that a Commissioner has received an impermissible ex parte communication.

(b) If the communication was received orally, the Executive Director shall include a copy of the memorandum and any response to the communication required by Sections 10283(d) and (e) with the written notification.

(c) If the communication was received in writing, the Executive Director shall include a copy of the written communication with the written notification.

(d) In either case, the notice shall also state that the party or person being notified must request an opportunity to address the Commission concerning the communication within 10 days of receiving the notice or the party or person shall waive the opportunity to address the Commission.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.50, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10287. Party Opportunity to Respond to an Ex Parte Communication.

If a party requests an opportunity to address the Commission concerning the communication within 10 days as required by Section 10286, the Commission shall grant the request and may allow the requesting party to present rebuttal evidence concerning the subject of the ex parte communication.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.50, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10288. Ex Parte Communications After the Close of the Public Hearing and After the End of the Time Period for Receipt of Written Communications; Public Comments and Responses.

(a) If an oral ex parte communication occurs after the close of the public hearing or a written ex parte communication occurs after the deadline for submitting written comments, the ex parte communication shall be disclosed as required by Section 10283.

(b) The Commission Chair or the Commission may determine that the communication contains new or different information pertinent to the decision being made. The Commission Chair or the Commission may also determine that reopening the public hearing is therefore necessary to protect the integrity of the decision-making process.

(c) If the Commission chair or the Commission makes both such determinations, it shall circulate the communication to the entire Commission and may reopen the public hearing to allow the public sufficient opportunity to comment on and to rebut the information contained in the communication unless a legal deadline for voting prevents reopening the hearing.

(d) If necessary, either the deadline for Commission voting shall be extended or the Commission shall deny the application because of the public's inability to comment on the new or different information.

(e) If a conflict occurs between this section and Commission Regulation Section 10430, this section shall take precedence.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.50, 66632 and 66638, Government Code; Sections 29520, 29524 and 29601, Public Resources Code.


s 10289. Field Trips.

(a) A Commission member may take an individual field trip to the site of a proposed project or a pending enforcement action so long as the Commission member discloses the fact of the field trip and the substance of all that he or she observed to the Commission as soon as practicable afterwards.

(b) The Commission's policy on ex parte communications shall apply to any communication that involves a Commission member that occurs during a field trip either by an individual Commission member or by the Commission.


Note: Authority cited: Sections 11400.20 and 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 11430.10, 11430.20, 11430.30, 11430.40, 11430.50, 66632 and 66638, Government Code; and Sections 29520, 29524 and 29601, Public Resources Code.


s 10300. Major Permits.

A major permit is any Commission permit other than an administrative permit, an emergency permit, a regionwide permit or an abbreviated regionwide permit.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Section 66632, Government Code; and Section 29601, Public Resources Code.

s 10310. Summary of Prerequisites for Filing a Major Permit Application.

The Commission shall file a major permit application pursuant to California Government Code section 66632 only when the applicant has submitted all of the following materials to the Executive Director:

(a) one (1) original and six (6) copies of a fully completed and properly executed application form, which these regulations contain as Appendix D;

(b) an executed Certificate of Posting of "Notice of Pending BCDC Application" form, which these regulations contain as Appendix E;

(c) exhibits to the application form, as described in Appendix F and Section 10625;

(d) a check or money order in the amount of all applicable filing fees in compliance with Appendix M;

(e) for all projects that constitute a "surface mining operation" under the Surface Mining and Reclamation Act and that are not exempt under Cal. Public Resources Code sections 2714 or 2776, a reclamation plan that complies with Cal. Public Resources Code section 2772;

(f) evidence that:

(1) all local discretionary approvals (i.e., all approvals other than ministerial permits such as building permits) have been granted, or

(2) for subdivisions or other land divisions requiring a Commission permit for which final local approval or disapproval has not been granted, a statement that the local government either favors the project, with or without conditions, or does not favor the project.


Note: Authority cited: Section 66632, Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 65940-65942, 66632(f) and 84308, Government Code; Sections 2770, 2774, 21080.5, 21082, 21160 and 29520, Public Resources Code; and the San Francisco Bay Plan.

s 10311. Waiver or Modification of Filing Requirements.

(a) Except as provided in subsection (b), the Executive Director may, at his or her sole discretion, waive or modify any or all of the permit application filing requirements contained in Section 10310, Appendix D, Appendix E, and Appendix F if he or she concludes all of the following: the otherwise required information is not necessary (1) to determine whether the proposed activity would be consistent with all applicable laws and policies, (2) to allow the government agencies specified in Section 10360 to review and comment on the proposed project, and (3) to provide adequate public notice of the project.

(b) The Executive Director may not waive or modify either (1) the requirement that a permit application must obtain all local discretionary governmental approvals pursuant to Government Code Section 66632(b) and Regulation Section 10310(f), (2) the applicable filing fee for the application, or (3) the requirement that the application include all public improvements and public utility facilities necessary or incidental to the proposed project and the names and mailing addresses of all public agencies or public utilities that will have ownership or control of the public improvements and public utility facilities if the permit is granted and the project built.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201(e), Public Resources Code. Reference: Sections 65940-65942 and 66632, Government Code; and Section 29520, Public Resources Code.


s 10312. Postponement of Filing Requirements.

The Executive Director may, at his or her sole discretion, postpone the time when an applicant must submit any of the information for which the Executive Director can waive submittal under Section 10311 if:

(1) the Executive Director decides that the information is not necessary at the time of filing,

(2) the applicant agrees to provide the information at such time as the Executive Director requests, and

(3) the applicant acknowledges in writing that the Commission may deny the application if the applicant does not provide the information when the Executive Director requests it because the Commission lacks sufficient information to determine whether the application is consistent with all applicable policies.


Note: Authority cited: Section 66632(f), Government Code; and Section 29201, Public Resources Code. Reference: Sections 65944 and 66632, Government Code; and Sections 2714, 2728, 2733, 2735, 2771, 2772, 2773, 2774 and 29520, Public Resources Code. (continued)
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