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HomeMy WebLinkAbout00 - Non-Agenda Items - CorrespondenceReceived After Agenda Printed April 10, 2018 Non -Agenda item Item XVI Comment: The Case Against the Port Master Plan These comments to the Newport Beach City Council for its April 10, 2018, meeting are submitted by: Jim Mosher ( limmosher6d.yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item XVI. Public Comments on Non -Agenda Items: THE PORT MASTER PLAN This is a supplement to the comments I submitted in advance of the March 13 (Item 16) and March 27 (Item 12) meetings (which unfortunately now have all the links disabled). Since submitting those, I have twice heard the City's lobbyist, Mr. Don Schmitz of Schmitz and Associates, speak about the proposal for a Port Master Plan for Newport Beach: first as part of Item 12 at the Council's March 27, 2018, meeting, and then again at the April 3 meeting of the NB Chamber of Commerce's Marine Committee. I agree with the remarks of Council member Avery on March 27, that the cost effectiveness of pursuing such a plan is highly questionable (it seems a great deal of time and effort for almost no tangible return), and with Council member Herdman that an attempt to unilaterally amend the state's Coastal Act for the sole benefit of Newport Beach, without prior consultation or indications of support from the Coastal Commission, is likely to damage the City's always delicate relationship with that body. In view of what I've heard, it is, to me, deeply disturbing that the City would have chosen to launch itself on this path, apparently on the basis of Mr. Schmitz' advice, alone, without preceding that action with a thoughtful discussion before the Harbor Commission of whether there is a problem with harbor permitting, and if so, what the best solutions to that problem would be. I feel it is more important now, than ever, to make the Council aware of the abundance of information casting doubt on the wisdom of the City pursuing a Coastal Act amendment — which, to me, is one of the most poorly thought out and off-the-wall proposals I've encountered in my nine years of paying attention to City activities. What are We Trying to Solve with a Port Master Plan? Point: Mr. Schmitz says he will be promoting AB -1196, the bill that will amend the Coastal Act to allow (and, in fact, require) Newport Beach to prepare a Port Master Plan, as a "win-win" "good government" bill that will relieve the Coastal Commission of a "fire hose" of administrative busywork, and both the City and its residents of great expense and long delays. Best of all, he says it is one and only way to remove even the possibility of appeals of local decisions to the Coastal Commission. In particular, he told the Council that the Coastal Commission processes 80 or 90 Coastal Development Permits per year for private dock repairs. At the Marine Committee, I believe he upped that to 100 to 150 and suggested they take as long as a year to get approved. And, he April 10, 2018, Comments on Port Master Plan - Jim Mosher Page 2 of 6 said, with a Port Master Plan, the City will no longer have to go to the Coastal Commission to get permission to dredge the harbor channels, or private residents to dredge around their docks. Counterpoints: • There is no fire hose of harbor -related permit applications going to the Coastal Commission. o In quoting his numbers, Mr. Schmitz appears to be conflating harbor -related permits with the many Coastal Development Permits the CCC had to approve for landside construction prior to certification of the City's Local Coastal Program in January 2017. o That fire hose has already been shut off with the LCP, which allows nearly all landside CDP's to be approved by the City (sometimes with a possibility of appeal to the CCC) o The CCC's Long Beach office is swamped with roughly 300 CDP applications to process each year, but they are no longer from Newport Beach. They are primarily the result of the 33 segments that remain without certified LCP's. o In 2014 through 2017, the number of dock -related CDP's appearing on CCC agendas has ranged from just 12 to 18 per year, with most of those simply reported as "approved" on the administrative calendar without any need for further action by the Commission. o And to the best of my knowledge, dock repairs (of which there are presumably many) do not require CCC approval, only dock reconfigurations. o The CCC sees far more dock -related CDP applications from Long Beach than from Newport Beach, although, ironically, Long Beach has a Port Master Plan for its commercial port, but not for the areas, such as Naples, outside the port distrtic. • The process is not as slow as Mr. Schmitz suggests o The CDP process can be a bit expensive, but it is not unusually slow. o The City's own application for the new Central Avenue Pier was filed on July 5, 2017, and approved on November 4. o That is not at all unlike the time it takes landside CDP's to get to the City's Zoning Administrator under the City's LCP. To the best of my knowledge, dredging around docks and piers is already covered by the City's RGP-54 program and its Eelgrass Mitigation Program (both of which Mr. Schmitz claims to have been instrumental in getting approved). See the explanations of these in Appendix G and B of our Harbor Area Management Plan. As far as I know they do not require a separate CDP and aside from those master programs, I have seen no dredging requests from Newport Beach on CCC agendas. • Maintenance dredging of navigation channels as permitted by the Army Corps of Engineers is already exempted from Coastal Act permitting requirements per Pub. Res. Code Section 30610(c). April 10, 2018, Comments on Port Master Plan - Jim Mosher Page 3 of 6 There is no history of burdensome frivolous appeals in Newport Beach. o Of the roughly 90 CDP's for landside development approved by the City since it obtained that authority in January 2017 (see the Zoning Administrator agendas and resolutions), and an unknown, but presumably very large number of notices to the CCC of categorical exclusions for other residential development, there has been exactly one appeal, and Coastal staff did not find that appeal frivolous. Instead, they recommended the Commission find that one appeal raised substantial issues regarding compliance with the LCP on several fronts (see Item 11 a on the March 7, 2018, CCC agenda). o Even if frivolous appeals were submitted to the CCC, I believe their staff has the authority to reject them when it is obvious the matters being questioned are not Coastal Act issues. • A Port Master Plan does not prevent appeals o At the end of each of the Precise Plans for the ten Planning Districts listed in the PMP for the San Diego Unified Port Authority there is a table categorizing the past and future projects as appealable to the CCC, or not. The great bulk of Newport Beach - like projects are listed as appealable. o The only possible exception is port -related infrastructure work, such as seawall construction and repair in the commercial areas. But based on Mr. Schmitz' description of the existing Newport Beach LCP as governing everything to the water's edge, and the proposed PMP covering only the water beyond, it is not clear his imagined PMP would change that. And the City already approves the CDP's for its own seawall projects. As an example, the Balboa Island seawall cap was approved as Item 2 on the Zoning Administrator's July 27, 2017, agenda (and although it was appealable, it was not appealed). o The idea that private dock approvals by the City would not be appealable when PRC 30715 says that "recreational small craft marina related facilities" and "residential buildings not principally devoted to the administration of activities within the port" are, seems a bit fanciful. I think the only reason private individual residential docks are not explicitly listed is there were none in the four commercial port districts Chapter 8 of the Coastal Act addresses. Since it is not at all clear that the City faces any great problem or expense at present in getting its harbor projects approved by the CCC, it is very uncertain exactly what a PMP for Newport Beach would be expected to accomplish. Yet we are told that if AB -1196 passes, the City will have a long and expensive process of developing a PMP. Is This the Right Approach to the Purported Problem? The idea that adding Newport Beach to the list of commercial seaports would fix perceived problems with the administration of recreational harbors under the Coastal Act is like suggesting to fix a watch with a sledgehammer. Or to drive a square peg in a round hole. It simply doesn't fit. April 10, 2018, Comments on Port Master Plan - Jim Mosher Page 4 of 6 Point: Mr. Schmitz claims AB -1196 is in keeping with the former Coastal Commission Director's Strategic Plan and the current Director's call for closer cooperation with local governments. Counterpoint: I am unaware of any such call for the creation of more Port Master Plans. Indeed, the definitive 1979 book about the genesis of the Coastal Act, Can Regulation Work? by Sabatier and Mazmanian, suggests the limited carve -out for four commercial seaports in Chapter 8 was a concession to the longshoremen's unions. Even Humboldt Bay, which is recognized as a significant port in the Act, was not given any special privileges. [For clarity, Caltrans recognizes 12 seaports in California. The seven not mentioned in the Coastal Act are in San Francisco Bay and fall under the jurisdiction of the San Francisco Bay Conservation and Development Commission, an organization that predates and is separate from the Coastal Commission.] The idea that Newport Beach deserves local control privileges not afforded to Humboldt Bay would be a difficult sell, the idea that adding two words (or in the case of AB -1196, four) to the Coastal Act could affect that suggests a fundamental misunderstanding of the Act and a lack of thought in its drafting. Point: Mr. Schmitz claimed on April 3 that Newport Harbor is already widely recognized as a "port" because it has federal channels, generates (he says) $1 billion in economic activity, is home port for Orange County to the Sheriff's Department and Coast Guard and sends 2 million passengers to Catalina each year. Counterpoints: Regarding the latter, the maximum capacity of the Catalina Flyer is 500 passengers. If we counted them both departing and arriving back, that would be at most 1,000 passengers per year. So if the ship was full each of the year's 365 days, we would have at most 365,000 passengers in a year, and they would give Avalon as much or more claim to being a "port" deserving special privileges as Newport. As to why Newport Beach (and other recreational harbors, and Humboldt Bay for that matter) are not in the list, the limitation of special privileges to four ports in the Coastal Act quite consciously reflects the conclusions of the California Coastal Zone Conservation Plan whose preparation was mandated by 1972's Proposition 20 and which the Coastal Act was intended to implement. That conclusion, codified in the legislative findings of PRC Sec. 30701(b) was that the four named ports were sufficient to meet the state's maritime commercial needs for the foreseeable future. In addition, as noted in my March 27 comments, the four ports listed in the Coastal Act were all state -mandated port districts with clear boundaries and independent governing bodies long before the Coastal Act (Los Angeles dating back to 1907 and Long Beach to 1911). Newport Beach and Newport Harbor have never had that status or structure. April 10, 2018, Comments on Port Master Plan - Jim Mosher Page 5 of 6 Among the many indications that AB -1196 has not been well vetted: • As noted in my March 27 comments, the list of four ports appears not only in the place where AB -1196 proposes to add to the list, but also in PRC Sec. 30112 , which would have to be amended to define a governing body for the new "Port of Newport Beach." • The list also occurs in PRC Sec. 30114, which gives special status to public works projects in the four ports. Does Newport want to be added to that list as well? PRC Sec. 30710 requires the Coastal Commission to define within the first three months of 1977 the boundaries, for purposes of the Coastal Act, and protected features within the listed ports. That section would have to be modified to define how the boundary and content of the "Port of Newport Beach" would be defined. o Mr. Schmitz' concept of a water -only "port" would be entirely new, and seemingly incompatible with the normal understanding of a port as place where people or goods are transferred between land and water, and which therefore needs to have a land component devoted to port uses. • As previously noted, PRC Sec. 30701 would need to be amended to explain why the legislature is reversing its previous commitment to limiting seaport development to the four Chapter 8 coastal ports plus Humboldt Bay. • Newport Beach is so unlike the other ports, that the list of non -appealable projects in PRC Sec. 30715 would presumably need to be reviewed and amended to ensure the Coastal Act continues to protect the state's interest in the state's waters. • Beyond these, the Council may wish to know that Chapter 8 not only allows the submission of a Port Master Plan for the named ports, but requires it (PRC Sec. 30711). • And that plan must do such things as: o Prioritize land areas around the harbor for shipping and rail access (PRC Sec. 30708) o Provide for commercial fishing uses, keeping recreational ones subservient to them (PRC Sec. 30703) Newport Beach does not seem like a good, or easily explained fit to any of these. Could This Damage the City's Relationship with the Coastal Commission? Point: Mr. Schmitz claims Coastal Commission staff has a very high opinion of Newport Beach, that they are very proud of the recent certification of the City's LCP Implementation Plan and that the current Executive Director, in his recent reports to the Commission, cited that as the crowning achievement of his tenure. Counterpoint: The final certification of the Newport Beach LCP, some 40 years behind schedule, was mentioned, very briefly, in Director Ainsworth's February 2018 oral annual report to the Commission (Feb. 7, Item 6a). It was listed as the one example of a new LCP that went into effect in 2017. That was cited as an accomplishment, but primarily as an example of his staff's April 10, 2018, Comments on Port Master Plan - Jim Mosher Page 6 of 6 slow but continuing progress toward reducing the backlog of uncertified segments, reducing the number from 34 to 33. It was not mentioned at all in his March oral report. Subsequent to certification, Newport Beach has submitted a number of requests for modifications and amendments to the rather hastily approved IP, none of which CCC staff has yet signed on to. Point: Mr. Schmitz notes as an example of the Commission's likely receptiveness to a Port Master Plan that at one of its meetings in Newport Beach, CCC Chair Steve Kinsey heaped praise on Newport Beach for its proactive approach to public access in creating Sunset Ridge Park and Marina Park (two prior projects for whose approval Mr. Schmitz claimed a large share of the credit). Counterpoint: Setting aside the observation that an exchange of mutual compliments between the Commission and the host city is a fairly expected thing, Mr. Kinsey is no longer with the Commission. In fact, five of the twelve Commissioners were appointed in 2017. They have never seen a "fire hose" of applications from Newport Beach and their impression of the City's attitude toward the Coastal Act may well be shaped by hearing about the City's rather bizarre effort to gain special privileges for itself by having itself added to the list of commercial port authorities when it is not recognized as such and has no intention of becoming one. The seven longer - serving Commissioners are likely, in addition, to remember the Banning Ranch debacle. Summary Newport Beach already has: • A Harbor and Bay Element in its General Plan (Chapter 4) • A HarborArea Management Plan further extending that document • (Like all other coastal waters) a statutory exemption from CCC permitting for maintenance dredging of navigation channel approved by the Army Corps of Engineers per PRC Sec. 30610(c) • An RGP-54 (including an eelgrass mitigation program) for remaining maintenance dredging done in the harbor without additional CCC permits • Certified harbor development standards in Chapter 21.30C of the LCP for physical development, which serve as guidance for the CCC • A very small number of dock construction projects requiring administrative approval by the CCC pursuant to that guidance and the Coastal Act What Newport Beach does not have is blanket CCC pre -approval for the occasional large project that might come along. Getting pre -approval for the water -only portion of those rare and unexpected projects by defining them in advance in a Port Master Plan for a "port" that we have to admit is not a port seems to me a strange, time consuming and wastefully expensive enterprise. Received After Agenda Printed April 10, 2018 Non -Agenda Item From: Sent: To: Subject: Attachments: Leilani I. Brown, MMC City Clerk City of Newport Beach Brown, Leilani Monday, April 09, 2018 7:34 PM Mulvey, Jennifer Fwd: March 27, 2018 council meeting Port Law and Legal Definition.docx; ports.docx -------- Original message -------- From: Luke Dru <luke@thedrufamily.com> Date: 4/9/18 5:01 PM (GMT -08:00) To: "Brown, Leilani" <LBrown@newportbeachca.gov> Subject: FW: March 27, 2018 council meeting Please include in the public record Regards Luke W. Dru From: Luke Dru [mailto:luke@thedrufamily.com] Sent: Monday, April 09, 2018 1:01 PM To: ddixon@newportbeachca.gov; kmuldoon@newportbeachca.gov; bavery@newportbeachca.gov; jherdman@newportbeachca.gov; speotter@newportbeachca.gov; woneill@newportbeachca.gov Cc: dduffield@newportbeachca.gov; dkiff@newportbeachca.gov Subject: March 27, 2018 council meeting City Council members Please see two (2) attached documents. One is a letter, and the other is a compilations of definitions. This is all related to the issue of changing Newport Beach harbor to a port. Respectfully submitted Luke W. Dru President, Cliff Haven Community Association From: Luke W. Dru TO: Newport Beach City Council Subject: Port of Newport Beach vote at March 27 Council Meeting. Date: April 9,2018 Dear Mayor Pro Tem O'neill, and members of the City Council I was very upset with the outcome of the vote to issue a contract for the consultant (Mr. Schmitz) to do lobbying on behalf of the City of Newport Beach for the naming of the Newport Beach Harbor as a "Port". This letter is a follow up, and additional to, the comments I made at the council meeting on March 13, 2018 on this subject. There are three things that really disturbed me about the way the meeting was conducted. 1. Nowhere during all of these discussions was there ever put forth a legal definition for calling a harbor a Port. I have done some research on the legal definition of what a port is legally defined as. I have enclosed a document with all the definitions I could find regarding the definition of a port. All of these definitions include the loading and unloading of passengers, loading and unloading cargo, and collecting duties. One could conclude that this is a prelude to the expansion of the project along West Coast Highway now in for Planning commission review. During the meeting two statements were made that were exceedingly upsetting to many. First Mr. Schmitz (the consultant) made the statement that the project is in the second year of a two year process. Second, in a totally different discussion on this item, council member Muldoon made the statement that he has only know about this whole issue for a few weeks. Sound like a lot of back room dealing! Brown Act????? The council agreed to pay a consultant that had spent, I believe $23,000, prior to a contract or agreement had been made. Where is it the City or state laws, rule or regulations that a consultant should get paid by the city for work without an agreement/contract, especially work done without a competitive bid process? Respectfully submitted Luke W. Dru President, Cliff Haven Community Association 949.646.7612 Port Law and Legal Definition The word "port" is defined by 19 USCS § 232 as any place from which merchandise can be shipped for importation, or at which merchandise can be imported. Port Authority Law and Legal Definition Port authorities are usually incorporated under enabling state legislation to develop waterfront property for recreational, transportational, agricultural, industrial and commercial purposes by financing, acquiring, enlarging, improving, replacing, owning, operating, selling, leasing and disposing of waterfront projects. Such projects may include any land, any building, structure, any machinery, equipment, furniture, facility or personal property, which may be used in connection with ports, docks, and all kinds of dock facilities, water and rail terminals and facilities, wharves, piers, berths, quays, loading and unloading facilities and other related facilities, marinas, boating facilities, facilities for aquatic entertainment and sports, facilities for fishing, pavilions, auditoriums, warehouses, factories, manufacturing plants, industrial plants, office and other commercial buildings and facilities. Some port authorities manage and maintain the bridges, tunnels, bus terminals, airports, rails, and seaport that are critical to their region's trade and transportation capabilities. Through their facilities and services, people are able to make vital connections and businesses are able to grow. Providing safe and efficient travel is one of the main aims of a port authority. Meaning of Port A place where a vessel can lie in a position of more or less shelter from theelements with a view to the loading or discharge of cargo ; for servicing and for provisions. The term has been construed according to its popular andcommercial sense as tending to include protected waters used for commercial purposes other than loading and unloading of cargo. A harbor establishedunder the authority of a government . A place designated by statute for theexecution of laws establishing duties on imports and exports of goods and vessels. See 8 U.S. C.A. §1221 8 U.S. Code § 1221 - Lists of alien and citizen passengers arriving and ... https://www.law.cornell.edu/uscode/text/8/1221 For each commercial vessel or aircraft transporting any person to any seaport or airport of the United States from any place outside the United States, it shall be the duty of an appropriate official specified in subsection (d) to provide to any United States border officer (as defined in subsection (i)) at that port manifest ... Port Alternative Definition A place to which the officers of the customs are appropriated, and which includes the privileges and guidance of all members and creeks which are allotted to them. 1 Chit. Com. Law, 726; Postlethwaite. A proper place for the lading or unlading of vessels, recognized and supervised for maritime purposes by the public authorities. A port differs from a haven, and includes something more. First, it is a place at which vessels may arrive and discharge or take in their cargoes. Second, it comprehends a ville, city, or borough, called in Latin caput corpus, for the reception of mariners and merchants, for securing the goods and bringing them to market, and for victualling the ships. Third, it is impressed with its legal character by the civil authority. Hale de Port. Mar. c. 2; 1 Harg. Tr. 46, 73; Bac. Abr. Prerogative (D 5) ; Comyn, Dig. Navigation (E) ; 4 Inst. 148; Callis, Sewers, 56; 2 Chit. Com. Law, 2; Dig. 50. 16. 59; Id. 43. 12.' 1. 13; Id. 47. 10. 15. 7; Id. 39. 4. 15. What is PORT? definition of PORT (Black's Law Dictionary) Definition of PORT: A place for the lading and unlading of the cargoes of vessels, and the col- lection of duties or customs upon imports and exports. A place, either on the sea- coast or on a river, where ships stop for the purpose of loading and unloading, from whence they depart, and where they finish their voyages. haps://thelawdictionary.org/port/ The Wharf Case, 3 Bland (Md.) 361; Packwood v. Walden, 7 Mart. N. S. (La.) S8; Devato v. Barrels of Plumbago (D. C.) 20 Fed. 515; Petrel Guano Co. v. Jarnette (C. C.) 45 Fed. 675; De Longue- mere v. Insurance Co., 10 Johns. (N. Y.) 125. In French maritime law. Burden, (of a vessel;) size and capacity. Received After Agenda Printed April 10, 2018 Non -Agenda Item From: City Clerk"s Office To: Mulvey, Jennifer; Rieff, Kim Subject: FW: Additional Non -agenda Comment for 4/10/2018 City Council meeting (Port Master Plan) Date: Tuesday, April 10, 2018 11:58:01 AM Attachments: w6c-4-2018 - CCC staff report and analysis of AB-1196.pdf From: Jim Mosher Sent: Tuesday, April 10, 2018 11:57:51 AM (UTC -08:00) Pacific Time (US & Canada) To: Dept - City Council Cc: City Clerk's Office Subject: Additional Non -agenda Comment for 4/10/2018 City Council meeting (Port Master Plan) As a follow up to the previous non -agenda comment I submitted about the City's Port Master Plan effort, please find attached the analysis of AB -1196 by Coastal Commission staff that was posted yesterday and will be reported to the Commission at their meeting in Redondo Beach this Thursday. I believe this report answers quite clearly the question raised at the March 27 City Council meeting of what Coastal Commission staff's attitude would be toward a proposal to amend the Coastal Act to give Newport Beach, and only Newport Beach, greater control of state waters by adding it to the Act's list of specially -regulated deepwater industrial ports. While strongly opposed to AB -1196, Coastal Commission staff does suggest a number of things the City could do to ease the perceived harbor permitting burden without amending the Act. I don't know if this will change the City's course, but I suspect this is an opinion and advice we could have obtained at no cost, before starting, had we simply asked. Yours sincerely, Jim Mosher STATE OF CALIFORNIA -CALIFORNIA NATURAL RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION 45 FREMONT, SUITE 2000 SAN FRANCISCO, CA 94105- 2219 VOICE AND TDD (415) 904-5200 FAX ( 415) 904- 5400 DATE: April 11, 2018 TO: Coastal Commission and Interested Persons FROM: John Ainsworth, Executive Director Sarah Christie, Legislative Director SUBJECT: LEGISLATIVE REPORT FOR APRIL, 2018 EDMUND G BROWN. GOVERNOR W6c CONTENTS: This report provides summaries and status of bills affecting the Coastal Commission and California's Coastal Program, and coastal -related legislation identified by staff. Note: Information contained in this report is accurate as of 04/04/2018. Recent amendments are summarized in italics. Bill text, votes, committee analyses and current status of any bill may be viewed on the California Legislature's Homepage at http:Hle ing fo.legislature.ca.gov/. This report can also be accessed through the Commission's Homepage at www.coastal.ca.gov 2018 Legislative Calendar Jan 1 Statutes take effect. Jan 3 Legislature reconvenes. Jan 10 Budget Bill must be submitted by Governor. Jan 12 Last day for committees to hear and report 2017 bills introduced in their house. Jan 15 Martin Luther King, Jr. Day Jan 19 Last day to submit bill requests to Office of Legislative Counsel. Last day for committees to hear and report 2017 Floor bills introduced in their house. Jan 31 Last day for each house to pass 2017 bills introduced in that house. Feb 16 Last day for bills to be introduced. March 22 Spring Recess begins upon adjournment. March 30 Cesar Chavez Day observed. April 2 Legislature reconvenes from Spring Recess. April 27 Last day for policy committees to hear and report fiscal bills. May 11 Last day for policy committees to hear and report non -fiscal bills introduced in their house. May 18 Last day for policy committees to meet prior to June 4. May 25 Last day for fiscal committees to hear and report to the Floor bills introduced in their house. May 29 -June 1 Floor session only June 1 Last day for each house to pass bills introduced in that house. June 4 Committee meetings may resume. June 15 Budget Bill must be passed by midnight. June 29 Last day for policy committees to hear and report fiscal bills. July 6 Last day for policy committees to meet. Summer Recess begins upon adjournment. Aug 6 Legislature reconvenes from Summer Recess. Aug 17 Last day for fiscal committees to meet and report bills. Aug 20-31 Floor session only Aug 24 Last day to amend bills on the Floor. Aug 31 Last day for Legislature to pass bills. Interim Recess begins upon adjournment. Sept 30 Last day for Governor to sign or veto bill. Legislative Report for April 2018 Page 6 AB 1196 (Harper) California Coastal Act: Port of Newport Beach Amendments of 03/22 would designate the City of Newport Beach city harbor as a port, and authorize the preparation of a Port Master Plan. This bill is identical to AB 2464 (Harper) as introduce 2/14/18. Introduced 02/14/18 Last Amended 03/22/18 Status Senate Rules Committee Commission Position Recommend Oppose, analysis attached AB 1594 (Bloom) Ocean protection: plastic pollution This bill would require the Ocean Protection Council on or before March 1, 2018, to complete existing data on the primary sources of plastics pollution in the ocean, as determined by an analysis of coastal cleanup efforts in the state. The report would include recommendations to the Legislature regarding possible legislative actions or other measures to reduce plastics pollution in coastal beaches and ocean waters. The bill would also require the Council to report to the Legislature on the status of the OPC's 13 -point plan to prevent and reduce marine debris, as outlined by the Council's 2007 resolution. Amendments of 06/26 strike the previous provisions and state that it is the intent of the Legislature to increase the diversion of single -use food packaging in order to reduce a primary source of litter and marine debris. Introduced 02/17/17 Last Amended 06/26/17 Status Senate Environmental Quality Committee. AB 1642 (Caballero) California Coastal Commission: ex parte communications: disclosure This bill would require the Director of the Coastal Commission to post all written ex parte communication disclosures on the Commission's internet website. Introduced 02/17/17 Status Assembly Rules Committee. AB 1775 (Limon/Muratsuchi) State lands: leasing: oil and gas This bill would prohibit the State Lands Commission and local trustees of state tidelands from entering into any new leases for offshore oil and/or gas production. The probation would also extend to any lease renewal, extension or modification of an existing lease that would authorize the exploration, development or production of oil or natural gas seaward of the mean high tide line. Amendments of 3/22 would extend the prohibition to local trustees of granted tidelands, and make other technical clarifications. Introduced 01/04/18 Last Amended 03/22/18 Status Assembly Natural Resources Committee (04/09) STATE OF CALIFORNIA -CALIFORNIA NATURAL RESOURCES AGENCY EDMUND G BROWN, GOVERNOR CALIFORNIA COASTAL COMMISSION 45 FREMONT, SUITE 2000 SAN FRANCISCO, CA 94105- 2219 VOICE AND TDD (415) 904-5200 FAX ( 415) 904- 5400 0 BILL ANALYSIS AB 1196 (Harper) As Amended 03/22/18 SUMMARY This bill would amend Section 30700 of the Public Resources Code to add the City of Newport Beach's municipal harbor to the list of industrial deep water ports (Los Angles, Long Beach, San Diego and Port Hueneme) that are currently eligible to prepare and implement a Port Master Plan (PMP). This bill would effectively create the "Port of Newport Beach" for the purpose of establishing eligibility for the City to create a PMP. Once certified, a PMP for the Port/City of Newport Beach would eliminate the need for the City to obtain a coastal development permit (CDP) from the Commission for development activities within the boundaries of the harbor. PURPOSE OF THE BILL The author's stated reason for the bill is to increase the City's control over harbor development projects and activities seaward of the mean high tide line, such as piers, docks, and dredging. Ceding the Commission's CDP authority to the City would allow the City to authorize and undertake its own development activities seaward of the mean high tide line, as well as permit the activity of private applicants in state waters. It would also allow the city to collect permit fees for a new class of activities. EXISTING LAW Chapter 8 of the Coastal Act, Articles 1-3, contains the general provisions and findings, policies, and Port Master Plan implementation procedures for the four coastal ports and the Humboldt Bay Harbor. Coastal Act Section 30700 states: "For purposes of this division, notwithstanding any other provisions of this division except as specifically stated in this chapter, this chapter shall govern those portions of the Ports of Hueneme, Long Beach, Los Angeles, and San Diego Unified Port District located within the coastal zone, but excluding any wetland, estuary, or existing recreation area indicated in Part IV of the coastal plan." Coastal Act Section 30701 (b) states: "The location of the commercial port districts within the State of California, including the Humboldt Bay Harbor, Recreation, and Conservation District, are well established, and for many years such areas have been devoted to transportation and commercial, industrial, and manufacturing uses consistent with federal, state and local regulations. Coastal planning requires no change in the number or location of the established commercial port districts. Existing ports, including the Humboldt Bay Harbor, Recreation, and Conservation District, shall be encouraged to modernize and construct necessary facilities within their boundaries in order to minimize or eliminate the necessity for future dredging and filling to create new ports in new areas of the state." AB 1196 (Harper) Bill Analysis Memo Page 2 Coastal Act Section 30708 (c) states: "All port -related developments shall be located, designed, and constructed so as to... Give highest priority to the use of existing land space within harbors for port purposes, including, but not limited to, navigational facilities, shipping industries, and necessary support and access facilities." PROGRAM BACKGROUND The Coastal Act provides the authority for Ports to prepare Port Master Plans, just as it authorizes University campuses to prepare Long Range Development Plans (LRDPs) and requires all local governments to prepare Local Coastal Programs (LCPs). Each type of plan is specific to the type of entity that implements it. Once a local government has a certified LCP, or a Port has a certified PMP, it assumes permitting authority from the Coastal Commission for coastal development within their geographic jurisdiction. In January of 2017, the Coastal Commission certified the City of Newport Beach's LCP. This was a major accomplishment for the city and the Commission after working together for several years, and the City is now issuing coastal development permits for local applicants. Under an LCP, the local government's jurisdiction ends at the mean high tide line, where the Coastal Commission's retained jurisdiction begins. State tidelands and state waters are public trust resources, held in trust for the public by the state. It is therefore appropriate for the state to retain oversight and jurisdiction over these state resources. Even after an LCP is certified, local governments and private entities must still obtain a coastal development permit from the Commission to dredge channels and harbors, dispose of dredge materials, modify piers or docks, or conduct any type of fill. Individuals with private docks may also need to get a lease from the State Lands Commission, for any extension or construction of a dock. This is the case for every city and harbor in the coastal zone from Imperial Beach to Crescent City. Newport Beach is not unique in this respect. In 2016, prior to the certification of Newport's LCP, the Commission worked with the city to streamline the permitting process for small dredging projects in the harbor that impact eelgrass, an important marine habitat. This was a major efficiency improvement for both the City and the Commission that is working well. At that time, the Commission and the City also discussed the possibility of permitting routine dock work harbor -wide through a "master CDP." This option would have provided the city with permitting authority similar to what it now seeks through this bill. However, the city ultimately elected not to pursue a master CDP given relatively low demand. ANALYSIS This bill would allow the City to prepare a Port Master Plan under which they could undertake future development activities in state waters and on state tidelands without the need for a coastal development permit from the Commission. This would remove Newport Harbor from the Coastal Commission's original permit jurisdiction, and set a precedent for other coastal municipalities to seek similar authority, thereby diminishing the State's oversight of activities directly affecting the State's public trust resources. AB 1196 (Harper) Bill Analysis Memo Page 3 The Coastal Act authorizes the governing bodies of the Ports of Los Angeles, Long Beach, San Diego and Port Hueneme to prepare PMPs under which they issue their own coastal development permits and undertake their own development activities, consistent with the approved PMP. The governing bodies of all four ports have prepared and are implementing approved Port Master Plans. Unlike local governments, Port Governing Bodies are public entities that control all of the land owned or leased by the port. Most of the land under the jurisdiction of the ports is public tidelands, granted in trust to the port governing bodies. Under a PMP, ports issue CDPs for their own projects, as well as permits for third party lessors. Ports also issue "exclusions" which are analogous to Coastal Act exemptions. Permits for specified developments and exemptions are appealable to the Commission, but the regulations governing PMPs are more permissive than the regulations governing local governments. For instance, under an LCP, all development between the first public road and the sea is appealable to the Commission, whereas only certain classes of activities are appealable under a PMP, regardless of their geographic location. While both ports and harbors include significant waterfront infrastructure, they serve very different needs. Ports primarily undertake intensely industrial development necessary for the provision of port -related activities and services necessary for the loading, unloading, transport and processing of commercial goods, and to facilitate their efficient transport by seagoing vessel and rail. Port Master must give these types of activities the highest priority. Municipal harbors, by contrast, typically consist of a patchwork of public and private interests, including recreational opportunities such as boat launches, docks, piers, boat slips, offshore moorings and a variety of visitor -serving commercial services. Port facilities primarily serve heavy industrial uses, while municipal harbors are hubs for public recreational and commercial activities. The exception is the Port of San Diego, which also includes some lands designated for visitor -serving and hotel development. However, this has led to conflicts and in some cases, protracted litigation between the Port and the Commission, over Coastal Act policies prioritizing lower-cost opportunities, scenic views and public access. Given the Coastal Act mandate to maximize public access and recreational opportunities (PRC Section 30001.5), protect lower-cost visitor -serving opportunities (PRC Section 30213), and maintain the health of marine ecosystems (PRC Section 30230), it is essential for public agencies to carefully balance private and public interests whenever planning new waterfront development. Coastal Commission oversight of waterfront areas is particularly critical, due to the heightened implications for public access, coastal recreation and lower-cost visitor -serving facilities, protection of important biological resources, placement of fill in state waters, and disposal of vital dredge spoils. These are all matters of significant statewide public interest, and should not be wholly delegated to local governments. This was part of the state/local balance struck by the Legislature in 1976, and which remains the fulcrum for California's entire coastal management program. Hence, PMPs are not the appropriate vehicle for cities and counties undertaking development activities in their municipal harbors. AB 1196 (Harper) Bill Analysis Memo Page 4 The City already has the authority to conduct ongoing dredging activities within a defined area of the harbor under a Commission -issued CDP. The City has the option to amend that permit to address additional needs as necessary, or pursue a Public Works Plan to cover additional activities if they choose to seek additional streamlining measures. SUPPORT City of Newport Beach OPPOSITION None on file RECOMMENDED POSITION Staff recommends the Commission Oppose AB 1196.