BCDC has neglected its responsibility to protect the San Francisco Bay because of inconsistent, ineffective and slow-moving regulatory practices that are in need of reform, according to a state audit of the commission published Tuesday. 

The findings confirmed the concerns and suspicions of many, including Assemblyman Kevin Mullin, D-South San Francisco, who led a bipartisan legislative coalition that called for the audit in 2018. The coalition also included Assemblywoman Marie Waldron, R-Escondido, state Sen. Jerry Hill, D-San Mateo, and Assemblyman Marc Berman, D-Palo Alto.

“The state auditor’s comprehensive report makes abundantly clear that a legislative audit request of BCDC was absolutely necessary,” Mullin said in a press release. “As I suspected, the state auditor has found that the commission has struggled to perform key responsibilities related to consistent enforcement and as a result, has allowed ongoing harm to the Bay.”

While Bay Conservation and Development Commission officials do not agree with all of the findings in the report, they acknowledged change is necessary.

“BCDC needs to step up its game, needs to make the enforcement program more robust and consistent, we need a compliance program and we need more resources for it,” said Larry Goldzband, BCDC’s executive director.

BCDC Chair Zack Wasserman noted the audit found no evidence of improper staff conduct.

“We are pleased the auditors found no evidence of improper staff conduct, such as bias or ‘moving the goal posts’ as some permit violators appear to suggest,” he wrote in a statement. “We appreciate the auditor’s conclusion that BCDC generally approves and imposes reasonable permit conditions that comply with state laws.”

BCDC was created by the McAteer-Petris Act of 1965 and the commission has since been responsible for regulating development around the Bay and ensuring public access to it. 

Critics feel the commission has gone astray from its mission and have long accused it of issuing arbitrary and costly fines for minor infractions and for lacking transparency, in addition to the aforementioned audit findings.

Such concerns led Mullin and his colleagues to request the audit, and one of the first cases to come to their attention occurred at Westpoint Harbor in Redwood City. BCDC fined the harbor more than a half-a-million dollars for a backlog of alleged violations. A seven-year legal battle concluded late last year when a settlement was reached.

“That [case] was in my opinion a pretty egregious overstep on BCDC’s part and it got us looking into the overall administration of BCDC and how enforcement works,” Mullin said by phone Tuesday. “My primary concern is [BCDC] be on sound footing with the public because the commission will have a very important role going forward when it comes to Bay level rise and protecting the Bay and there are examples of the Bay being harmed by a lack of enforcement.” 

BCDC currently has a backlog of 230 enforcement cases. Goldzband said insufficient funding has been a significant obstacle and noted the commission had a structural deficit until 2015.

The audit contains about 19 recommended changes to improve the commission, including establishing timelines for resolving enforcement cases and simplifying the system whereby cases are prioritized so that the ones with the greatest potential of harming the Bay are addressed first.

Goldzband said BCDC agrees with most of the recommendations.

“In principle we tend to think a lot of these recommendations are pretty good, though we may not agree with how they say we should do it,” he said. “It’s never fun being audited — I’ve been audited many times — but the great thing about an audit is if it’s done well it can expose issues you can correct before the problems start, which is what we think a lot of this is.”

The San Francisco Bay Stewardship Alliance, a vocal critic of BCDC, feels problems started long ago and wants to see significant change in house. According to its website, that organization promotes informed conservation and responsible development of the San Francisco Bay shoreline.

“There’s a bad lack of oversight, the way [BCDC] is managed, they’re not meeting their objectives and the report is very damning on that,” said co-founder Peter Blackmore. “We’ve been very clear we think executive management needs to change. They’ve been there a long while and when this comes out someone has to be accountable.”

Blackmore also said the commission needs fewer board members to be effective. It has 27 members, appointed from various government agencies from the federal to county level.

Mullin agreed that a commission of that size is “unwieldy,” but is not calling for anyone’s job.

“I’m not prepared at this point to call for the removal of the executive director, but what I’m looking for is staff at the highest level to embrace these recommendations and develop an approach that addresses these various concerns. … I’m going to need assurances that these recommendations are being heard and there’s a commitment to change the internal operations of BCDC and this really is a task that confronts all of us. We all have a role to play in strengthening BCDC in the public’s consciousness and making sure it has full confidence of public going forward. There’s so much work to be done.”

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