Approved Minutes of April 21, 2022 Virtual Commision Meeting

San Francisco Bay Conservation and Development Commission 375 Beale Street, Suite 510, San Francisco, California 94105 tel 415 352 3600 fax 888 348 5190

State of California | Gavin Newsom – Governor | [email protected] | www.bcdc.ca.gov

BCDC MINUTES APRIL 21, 2022

April 29, 2022

TO: All Commissioners and Alternates

FROM: Lawrence J. Goldzband, Executive Director (415/352-3653; [email protected]) Peggy Atwell, Director, Administrative & Technology Services (415/352-3638; [email protected])

SUBJECT: Approved Minutes of April 21, 2022 Virtual Commission Meeting

1. Call to Order. The hybrid meeting was called to order by Chair Wasserman at 1:07 p.m. The meeting was held with a physical location of 375 Beale Street, San Francisco, California, and online via Zoom and teleconference.

Our first order of business is to call the roll. Commissioners, if you are participating virtually please unmute yourself to answer the roll and then mute yourself again.

2. Roll Call. Present were: Chair Wasserman, Commissioners Addiego, Ahn, Beach, Butt, Eckerle, Eklund, El-Tawansy (represented by Alternate Ambuehl), Gioia, Gunther (represented by Alternate McGrath), Hasz, Lee (represented by Alternate Kishimoto), Lucchesi (represented by Alternate Pemberton), Moulton-Peters, Peskin, Showalter, Spering (represented by Alternate Vasquez), Wagenknecht. Senator Skinner (represented by Alternate McCoy) was also present.

Chair Wasserman announced that a quorum was present.

Not present were Commissioners: Association of Bay Area Governments (Burt), Alameda County (Brown), Sonoma County (Gorin), Governor (Eisen, Ranchod, Randolph), San Mateo County (Pine), U.S. Environmental Protection Agency (Vacant), Department of Finance (Vacant)

3. Public Comment Period. Chair Wasserman called for public comment on subjects thatwere not on the Agenda.

Chair Wasserman presented the following: I and a number of our Commissioners are physically located at Metro Center, our headquarters today at 375 Beale Street in San Francisco. And other Commissioners will participate remotely from other locations. Each of those locations has been identified on our meeting notice.

For Commissioners who are at the Metro Center I want to remind you to please do five things. First, please make sure that you are always muted which means that the red light on your mic is not on, except of course, when you are speaking. Second, if you are on Zoom settings also please make sure that your mic is not on unless you are speaking. Third, please ensure that your computer speakers are off both here in the room and remotely you have to have them on. Fourth, always speak directly into the microphone in front of you and have it on only when you want to speak or into your computer. Fifth, please ensure that your video on your laptop is always on so that the public and other Commissioners can see you.

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Now, I want to quickly share some instructions on how we can best participate in this hybrid meeting so that it runs as smoothly as possible.

First, and this applies to everyone, please make sure you have your microphones, computers, or telephones on mute to avoid background noise unless you are speaking. Commissioners must turn on your cameras so everyone can see you.

For members of the public attending virtually via Zoom, if you would like to speak either during our open Agenda Item or our public comment period you can do so in one of two ways. First, if you are on the Zoom platform, please raise your hand in Zoom. If you are new to Zoom and you joined our meeting using the Zoom application, click the Participants icon at the bottom of your screen and look in the box where your name is listed under Attendees and find the small hand to the left. If you click on that hand it will raise your hand virtually. Second, if you are joining our meeting via phone, you must press *6 on your keypad to unmute your phone to make a comment.

We will call on individuals who have raised their hands in the order that are raised. After you are called on you will be unmuted so that you can share your comments. Remember, you have a limit of 3 minutes to speak on an item on public comments.

For members of the public attending our meeting in person, and it seems to me there are none, so I am not going to read that piece unless somebody comes in and then I will go back to it. If somebody does come in and wishes to speak we will recognize people in the room first.

If you are attending at a remote site where a Commissioner is present please ask the Commissioner to notify the BCDC hosts that there is a member of the public who would like to comment.

Please keep your comments respectful and focused; we are here to listen to everyone who wishes to address us but everyone has the responsibility to act in a civil manner. We will not tolerate hate speech, threats made directly or indirectly, and/or abusive language.

Every now and then you will hear me refer to the meeting "host" — our BCDC staff are acting as hosts for the meeting behind the scenes to ensure that the technology moves the meeting forward smoothly and consistently.

BCDC has also established an email address to compile public comments for our meetings. Its address is [email protected]. We have received 58 emails that were public comments. These have been shared with the Commissioners prior to the meeting and are available on the website. If we receive any emails during the meeting they will be shared with the Commissioners and be made available on our website.

That brings us to Item 3, Public Comment. There are no members of the public in this room so far. Peggy, do we have any remotely who have indicated a wish to speak during our Public Comment Period?

Ms. Atwell informed the Chair: Yes we do, Chair Wasserman. Right now we have six or seven people. So I am going to call on Sheryl Walton – go ahead and unmute yourself and you have three minutes to speak.

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Ms. Walton spoke: My name is Sheryl Walton and I’m an Oakland resident. The Tioga Group clearly shows that under all future scenarios except for extremely low growth that all available terminals and acreage including Howard Terminal was needed to meet cargo capacity.

Ms. Atwell interjected: Ms. Walton –

Ms. Walton replied: Yes.

Ms. Atwell continued: That is actually Agenda Item 9 and you would need to speak during that Agenda Item. This time is for any items not on the Agenda.

Ms. Walton acknowledged: Okay, Item 9 - okay.

Ms. Atwell recognized the next speaker: I am going to go to W O EIP. Go ahead and unmute yourself. State your name for the record and you have three minutes.

Mr. Beveridge commented: My name is Brian Beveridge but I guess I will have to wait until Item 9. I wanted to speak about port cargo volumes.

Ms. Atwell stated: Remember, if anybody has their hand up and they are looking to discuss Item 9 please lower your hand. This is for items not on the Agenda.

Okay, I am going to go to Melvin Mackay. Melvin, go ahead and unmute yourself. You have three minutes. State you name for the record.

Ms. Mackay commented: I am Melvin Mackay, M-A-C-K-A-Y. I as well have to wait for Item 9. Thank you.

Ms. Atwell acknowledged: Okay, thank you. Let me make this a little easier. If you are looking for Item 9 please do not raise your hand right now.

After we close Public Comment you can raise your hand. So if your hand is raised right now that means you are not talking about Agenda Item 8 or 9.

So I am going to unmute Mr. Price. Price, state your name for the record. Go ahead and unmute yourself.

Mr. Price: (Yelling loudly) Okay, you all are stupid. You are crazy, so stupid. (Additional yelling loudly)

Ms. Atwell continued: Okay. Chair Wasserman, I don’t believe we have any more public speakers.

Chair Wasserman continued: We do have a member of the public who has joined us. So if that public member would like to make a public comment he is welcome to do so. He is shaking his head, thank you.

This concludes our Public Comment Period. We will take public comments as noted on Agenda Items as they come up.

Chair Wasserman moved to Approval of the Minutes.

4. Approval of Minutes of the April 7, 2022 Meeting. Chair Wasserman asked for a motion and a second to adopt the Minutes of April 7, 2022.

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MOTION: Commissioner Eklund moved approval of the Minutes, seconded by Commissioner McGrath.

The motion carried by a voice vote with no abstentions or opposition.

5. Report of the Chair. Chair Wasserman reported on the following:

I want to note some of the things out in the world that affect us. This is actually in March but it is continuing and we’ve talked about it in the past a little bit.

I believe one of the most important steps forward in dealing with climate change was undertaken by the Securities and Exchange Commission in passing a rule requiring as part of corporate disclosures that corporations disclose as part of their annual required reports to the SEC how climate change may affect them and what they are planning is for climate change.

As some of you may recall as we were doing a number of our workshops about sea level rise, particularly about financing the future but other areas as well, one of the important but impenetrable areas was what corporations are in fact doing. And we all know, larger corporations including a number of very significant corporations located in the South Bay who are unquestionably planning, were understandably at some level keeping that very secret. That is now going to change.

It is going to take some while to roll this out. I will not be surprised if there is some litigation over the rules. Some of those same corporations or representatives have direly predicted that this rule will generate its own set of litigation over statements that may or may not be accurate in responding to those reports.

All of that mishegaas notwithstanding I think this is a very, very significant step forward because it is make our corporate communities much more open and have to be much more active about what they are doing.

And I hope that the vast majority of those things will be productive. How much of that will be sea level rise is unclear but particularly for those corporations in coastal and bay areas, they are going to have to address that and that will be very important and very beneficial.

I first want to confirm that Commissioners know our schedule for upcoming meetings because they are somewhat different than our normal schedule. This is in particular for discussing Seaport Plan Amendment 2-19 regarding Howard Terminal and the Port of Oakland and the Oakland Athletics.

The public hearing on the Preliminary Staff Report will occur on June 2nd which is a normal Commission meeting day; however, we will begin the meeting at 9:30 a.m., not at 1 p.m. And we will be prepared to continue throughout the day taking a break for lunch if necessary.

We are doing this because, as indicated by the vast bulk of those 56 comments that we have received, there is a good deal of interest in this and we want to make sure that we have enough time to hear from the public and time for Commissioners to fully discuss and consider this matter.

Then, on June 30th, the Commission will discuss the Final Staff Recommendation and vote on the Bay Plan Amendment.

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June 30th is not a normal Commission meeting day. So please put an all-day hold on that day as well which will start at 9:30 a.m. and continue through the day with a break for lunch.

We have established this schedule to avoid a BCDC Commission meeting and vote on July 7th which would be the last day we can act on this matter under state legislation because that is part of the holiday week.

We had previously asked you to hold June 29th — you may release that if you have not already done so. And we also asked for June 23rd.

There had been requests for June 23rd — it is off. Our request for hold, you do not need to do that anymore.

Commissioner McGrath asked: And May 5th is also released from Howard Terminal discussion?

Chair Wasserman answered: Correct.

Commissioner McGrath acknowledged: Thank you.

Chair Wasserman continued: So these are the only dates. There was a question that July 7th is a regular meeting of the Commission and I answered that it was. That is correct.

I want to thank our nine-county Commissioner representatives for providing the follow-up information that we requested on adaptation project needs in their county following the presentation that was made to the Commission last month.

Your actions are a very important step in implementing Bay Adapt. There are a number of other parts of Bay Adapt that are going to be implemented but this really stems from this collective effort led by BCDC and these are very important and you and your staff have been very helpful.

We plan to transmit that information to the state legislatures Bay Area Caucus which has expressed interest in specific projects. And we will hold the Commission discussion on that issue or we expect to on May 19th.

We will have a meeting on May 5th — a regular meeting not a Howard Terminal meeting.

a. Next BCDC Meeting. Our next Commission meeting will be held on May 5th. At that meeting we expect to:

(1) Consider a permit application for oyster shell mining; (2) Consider a permit application for Alameda Boatworks; and (3) Hold a staff briefing on the Shoreline Adaptation Mapping Program.

b. Ex Parte Communications. This is the moment to report ex parte communications that you may have received. I want to emphasize that communications about the Seaport Plan Amendment, the cargo briefing or Howard Terminal do not need to be reported at this time.

Those are not adjudicatory matters before us at this time. You may if you choose but you are not required to do so.

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Has any Commissioner in the room, I see no hands, are there any remote hands? No, thank you very much.

That brings us to the Executive Director’s Report. Take it away, Larry.

6. Report of the Executive Director. Executive Director Goldzband reported: Thank you very much, Chair Wasserman.

Today’s weather reminds us of how much we need to be thankful both that the rains continue to appear and, just as important, that the baseball season has commenced after our long dark winter.

Rogers Hornsby, perhaps the greatest second baseman ever to play the game, was asked what he did after the baseball season ended. He replied, “I'll tell you what I do. I stare out the window and wait for spring.” Unlike Hornsby, however, our Commissioners don’t have to worry about any ennui here at BCDC – we shall experience a flood of interesting work this spring and summer.

Today begins your consideration of the issues surrounding the Seaport Plan, for example, and we expect that there will be no cancelled meetings between now and the end of the summer with a wide variety of permitting and policy issues coming to the fore.

a. Budget and Staffing. I am very pleased to let you know that our new Enforcement Manager, Matthew Trujillo, has selected John Creech to fill his vacated position on the Enforcement Team and John will take up his duties unless we hear otherwise from you. John was hired during the early part of COVID and we met only a few weeks ago.

John earned his undergraduate degree from U.C. Santa Barbara in Environmental Studies and the Gaucho later became a Terrapin when earned his graduate degree from the University of Maryland in Environmental Management. Prior to joining BCDC John handled logistics and operations in the private sector. I should note that John is a certified SCUBA diver, is EMT and lifeguard-certified, and he is a former CrossFit instructor. And he is using all of those talents as part of our BCDC audio/visual team as we implement our hybrid meetings.

b. Policy Issues. Five quick policy issues to note: First, our Regulatory Team is working with our Racial Equity Team and our Environmental Justice Advisors to execute a staff workshop that will help us determine the best ways for the regulatory staff to implement our Environmental Justice and Social Equity Bay Plan policies. We are thankful that we still have Nahal Ghoghaie on a part-time basis this month to help plan and implement that workshop and we will report back to you on its results.

Second, next week our Environmental Justice and GIS teams are ‘soft’ launching the Community Based Organization Directory Map, a new public data resource that includes information about approximately 130 community organizations working around the Bay. We hope that this resource will support early and effective outreach and engagement among communities and shoreline development projects.

We want to thank our Environmental Justice Advisors and the EJ Commissioner Working Group for helping us figure out how permit applicants, BCDC staff, and community groups can go to a single website to understand community vulnerabilities and discover ways to collaborate along the shoreline.

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The link to the tool can be found both on our website and in this E.D. Report that will be sent to you as an attachment to the meeting summary.

Third, I want to let you know that Jessica Fain is working closely with senior staff of the Ocean Protection Council and the State Coastal Conservancy to finalize a plan that will provide funding for BCDC to hire staff and perform other necessary responsibilities to move Bay Adapt forward. These negotiations were requested by the Natural Resources Agency and we hope to finalize them next month or shortly thereafter.

Fourth, on this day before Earth Day, I want to ask Commissioner Showalter to give a rather short description of a great celebration earlier this week – the groundbreaking of the South Bay Shoreline Project. In 2015 the Commission approved a phased consistency determination for a conceptual 3.8 mile, 15-foot high levee between Alviso and San Jose designed to make them more resilient to a rising Bay while restoring nine former salt ponds to the Bay’s tidal marsh and managed wetlands.

The U.S. Army Corps of Engineers, the State Coastal Conservancy and Valley Water were able to obtain necessary federal funds for the project, and last week this tremendous effort took another step. Commission Showalter was there and she will tell us about it. Would you please start the PowerPoint?

Commissioner Showalter presented the following: My Zoom has died but you can hear my voice. I wanted to show you this picture of all these smiling faces that are there for the groundbreaking.

The person on the left is probably the most important one — her name is Rochelle Blank. She is now the Chief of Watershed Operations for the Santa Clara Valley Water District but she has worked on this project for a mere 15 years and so have many of the other people in that line. Melanie Richardson and Amy Hutzel were there too.

You will also see me there in the yellow jacket and so is Commissioner Pine. You can see that the Secretary of Natural Resources is there as well as representatives from the Corps of Engineers, Fish and Wildlife Service and the whole spate of people who have worked on this for such a long time.

After 15 years of effort, you bet, we had big smiles on our faces for getting to this.

The other thing that I wanted to point out is that they put a buoy-line. That yellow line you can see at the top of the picture, that is the buoy-line that marks where the levee will actually be built. What a great thing to set up for a groundbreaking.

The Mercury News put together a map showing the areas that this big project is going to improve and protect. And you see Phase I on the right; it protects the town of Alviso. That is very important because Alviso is actually below sea level.

There was a lot of groundwater extraction that caused subsidence of over 15 feet in San Jose, so that needs to be protected. It is also the site of San Jose’s Wastewater Treatment Plant. So that is the first one.

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And we will be moving along around the rest of the South Bay hopefully much more quickly the next 15 years.

Here are some facts many of which Larry mentioned that are really important about this. First of all, it’s actually a sea level rise protection project that we are building. We are not planning for it anymore, we are building it. That is music to my ears and all of your ears as well.

This combines a nature-based solution of marsh restoration with a horizontal levee. I had such a good time listening to people talk. All of the speakers just said the right things about the need for protecting people and protecting the environment and doing it in a collaborative fashion. It was great to hear.

So it is the fully, successfully funded project. It needs the environmental justice needs of protecting Alviso. Alviso has many low-income folks in it.

It has worked through the whole Corps of Engineers’ process. We can all be proud that many of the issues related to working on sea level rise have been worked out with this project and other projects that are going on through the nation but this is one of the ones in the forefront.

And then the other thing that is interesting is this has a fortified foundation. That means that we are building this foundation so it can support a levee that is higher than the one that is being built at the moment so that 30 years from now or 40 years from now or 50 years from now when somebody has to come along and make this levee higher — they don’t have to rip it all out to rebuild it. They just have to build on top of it.

The last slide is a project map and it also shows the main players. Collaboration is key in these things. Thank you.

Executive Director Goldzband acknowledged: Thank you, Commissioner Showalter.

Late breaking news – Commissioner Gunther is listening in and asked a question that I want to make clear, the answer which I want to make clear to everybody. He asked, June 16th meeting was not mentioned — is it on?

And the answer is — yes. It simply will not be Howard Terminal related. So an addendum to the Chair’s remarks.

Finally, I know that Steve did this two weeks ago when I was on vacation but I also want to thank everyone, all the Commissioners and Alternates for submitting their forms on time especially on behalf of Reggie Abad and all of us who filed the FPPC Form. So thank you very much for doing so. That concludes my Report, Chair Wasserman. I am happy to answer questions.

Chair Wasserman asked: Are there any questions for the Executive Director? (No questions were voiced)

7. Consideration of Administrative Matters. Chair Wasserman stated: That brings us to Item 7, Consideration of Administrative Matters. We have received an administrative listing. Deputy Executive Director Steve Goldbeck is available to answer any questions. Are there any questions on the administrative listing? (No questions were voiced)

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8. Consideration and Possible Vote on Revised Proposed Amendments to Commission’s Enforcement Procedures Regulations. Chair Wasserman announced: That brings us to Item 8. This is consideration of a revised proposed set of amendments to the Commission's enforcement procedures regulations. Marc Zeppetello, our former general counsel, who has returned as a retired annuitant, will present this item. Go ahead, Marc.

Mr. Zeppetello addressed the Commission: Thank you, Chair Wasserman. Good afternoon, Commissioners. As you may recall, the Commission adopted amendments to its enforcement procedures regulations a year ago, on April 15, 2021.

In addition to amendments to the existing regulations this included adoption of an administrative civil penalty policy as a new Appendix J to the regulations. That policy consists of two parts, a penalty calculation methodology and a section on supplemental environmental projects.

In late May, we submitted the amendments and the rulemaking file to the Office of Administrative Law, or OAL, which reviews regulations under standards in the Administrative Procedure Act including necessity, clarity, consistency, and non-duplication.

In this case OAL had rather extensive comments on the amendments, particularly in relation to the standards for necessity and clarity. OAL determined that revisions to the amendments were necessary to meet those standards and that it was also necessary to prepare an addendum to the Initial Statement of Reasons to provide further information demonstrating that the amendments meet applicable standards.

Very briefly, necessity is, does the record demonstrate the need for the regulation to effectuate the purpose of the statute or other provision of law being implemented by the regulation? An example is, if there is a number adopted, such as in the SEP policy, a 50 percent offset for a penalty, why is that number necessary as opposed to a different number?

Clarity briefly is: is the regulation written in a manner that it will be easily understood by the person that is directly affected by it, or persons? An example of clarity is the use of ‘shall’ versus ‘may.’ Shall is clear; it is mandatory. Whereas ‘may’ creates discretion, and if you are going to use ‘may’ you need to explain how that discretion shall be applied.

Most of OAL’s comments were on the administrative penalty policy so that is what I am going to focus on in my presentation.

At a broad level, we were asked to provide a more thorough explanation of why is it necessary to adopt an administrative penalty policy in the first place? What is explained, and this is mainly in the addendum to the Initial Statement of Reasons, is that the Government Code grants the Commission broad discretion in determining the amount of a penalty in considering a number of factors that are specified in the statute. But the Commission has determined that it is necessary to adopt a policy to guide the exercise of discretion by the Executive Director and staff in determining the appropriate amount of proposed penalties, and by the Commission when it determines and imposes penalties, in a consistent, transparent, and fair manner.

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More specifically, why is it necessary to adopt a penalty calculation methodology? The addendum explains that this is necessary to provide for consideration of the statutory penalty factors and to create a transparent, fair, and consistent approach to determine the amount of administrative penalties for violations.

We also explained again, as we did in the Initial Statement of Reasons, that the penalty calculation methodology implements a recommendation of the enforcement audit from a couple of years ago that penalties be determined in accordance with a more formal process.

We also explained that the Commission is joining other regulatory agencies that have administrative penalty policies, and the two examples that are discussed and that are included in our file now in the rulemaking record are the State Water Resources Control Board’s administrative penalty policy and the Department of Toxic Substances Control’s. It was helpful to explain to OAL that the Commission is not writing on a blank slate here and reinventing the wheel. We are relying on the work done by other agencies whose regulations have been approved.

On supplemental environmental projects, we explained that this is necessary to recognize the value of supplemental projects as an alternative to payment of a portion of an administrative penalty for projects that could benefit the Bay. The policy is necessary to provide guidelines that identify the types of projects that are acceptable to the Commission, consistent with its statutory mandates, and to provide for enforceable requirements to ensure that those projects are completed.

Again, we explained that in adopting policies for supplemental environmental projects, the Commission joins other federal and state agencies that have adopted policies for supplemental projects in enforcement matters.

We also explained that in 2015, the Legislature enacted a provision of the Public Resources Code which requires all boards and commissions within the Cal/EPA to establish a policy for supplemental environmental projects. That statute does not apply to the Commission because the Commission is not within Cal/EPA, but nevertheless, consistent with that statute, the Commission has adopted guidelines and requirements for SEPs as necessary to ensure consistency, transparency, and fairness in the use of those projects in partial resolution of enforcement actions.

I would like to turn to a couple of specific revisions, if Alex could pull up my staff report at page 44. That page has the introduction to the civil penalty policy. I am not going to take the time to go through things in detail, but as a as an overview, the text that is in plain underscore is the text that was adopted by the Commission last April. What is shown in bold are the changes, are the revised amendments. You can see that we added a sentence in the third paragraph to explain that the policy consists of two parts. In the final paragraph on the page we added text to explain that the policy applies to the Executive Director in preparing complaints for administrative liability and it applies to the Commission in issuing orders for setting administrative civil liability.

If you could turn to the next page, we added a paragraph at the top that talks about Part 2 of the policy and summarizes what a supplemental environmental project is.

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Turning to the penalty calculation methodology on this page, we added a summary. The original adopted last year included a summary that said basically that a base penalty will be established by considering the gravity of harm of a violation and the extent of deviation from the applicable requirement. Next, there would be an upward or downward adjustment based on factors related to the violator, such as culpability or prior history of violations. And finally, the penalty would be adjusted to ensure recovery of any economic benefit. That summary was incomplete. Although it was accurate as far as it went, it was not thorough. This page is a summary of the six steps, and I will highlight them briefly.

Step 1 is similar to what was said before — that the base penalty is determined by considering the gravity of the harm and the extent of deviation from the applicable requirement. There is a table that is used to then come up with a base penalty and then multiply that amount by the number of days of violation.

Steps 2, 3 and 4 are the adjustment factors for the violator’s conduct, degree of culpability, history of violations and any voluntary efforts to resolve the violation.

In Step 5 the total base penalty is the summation of the penalties for individual violations.

Step 6 is a reorganization and supplementation of what was in the original version and says that once the base penalty is determined for all violations, there are additional factors that are considered which include any economic benefit to the violator, the violator’s ability to pay, the costs to the state, and other factors as justice may require.

If we could turn to page 47 of the PDF. This is the penalty calculation methodology. In the original version it said that violations will be evaluated using six impact criteria: habitat value, durability, toxicity, size, nature of the violation and visibility. Based on these factors, a score will be calculated using a formula for prioritizing enforcement cases and then the violations will be characterized as major, moderate, or minor.

OAL commented that there was a clarity problem here. What do these criteria mean? Is there a formula? If there is a formula it should be shown. How does the scoring work?

If you could turn to the next page, you see that we have added a provision under habitat value. We have added a sentence to explain what habitat value is, what it considers, and then scoring 1, 2, or 3 depending on the habitat value and the habitat impacted. If you could turn to the next page, we see score number 3, which is the highest, most severe impacts to tidal or brackish areas, high-quality habitat.

And then Factor 2. I will not go through each of them, but we now have for each of the six impact criteria a description of what the factor is and a score of 1, 2, or 3.

If you go to page 50, at the bottom of this page it says, final gravity of harm score and categorization of the gravity of harm. The score for each of the six factors is added. It explains that the minimum score is 6 and the maximum score is 17, and depending on the score, the gravity of harm is major, moderate, or minor.

If you could go to the next page, both in the original and in the revised version, paper violations are treated differently in terms of gravity of harm. The gravity of harm is defined here in the policy by the type of document rather than a by a scoring system.

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After we made these revisions to address clarity, OAL raised a concern about necessity. Why are these factors necessary? Why are we considering these factors as opposed to others? The addendum explains that these factors are considered because they relate directly to the resources to be protected by the Commission through ensuring compliance with the statutes administered and the permits issued by the Commission. In other words, these factors of toxicity, habitat value, and whether a violation can be remedied easily or whether it could be permitted, they all they all relate to protecting the Bay, the Bay’s resources, and public access.

We also explained that, again, this is very similar to what the State Water Resources Control Board and the Department of Toxic Substances Control do, where the gravity of harm and extent of deviation from a requirement are the first factors that they consider in their penalty policies as well.

Let me move on. If you could go to page 55, I would like to briefly mention Step 6, which is at the bottom of the page. Step 6 is, once an overall penalty is determined based on considering the violations individually and there is a summation, there are additional factors that could be considered by the Commission related to economic benefit, ability to pay, costs to the state and other factors as justice may require, which are the factors in the Government Code.

What is different here is that we made it clear that considering these factors may depend on the information available. Information about economic benefit may not be easy to determine or available to staff. The violator may or may not come forward with an argument about ability to pay. Costs to the state is a factor to be considered, but at the moment there is not a good software or means for the Commission or Commission staff to track costs to the state; but hopefully at some point there will be and when that information is available those factors could be considered to allow for an adjustment.

If you could switch to the next page, I would highlight at the top of the page that we added a provision that says in the first full paragraph, when the base penalty is adjusted based on consideration of these factors, specific findings as to the factors shall be proposed by the Executive Director and made by the Commission. This addressed a concern that OAL had with clarity. It is understandable that we cannot set forth in a policy how these factors can be evaluated because they will be very fact-specific to a case and to the information that is available; therefore, when a penalty is adjusted based on these factors, specific findings need to be made to support the determination.

If you could turn to page 59, I will highlight a couple of points on the supplemental environmental projects.

In the second paragraph under A. there is a discussion of the Commission's discretion to determine whether to accept a supplemental environmental project and the amount of the penalty offset. Here is a case where OAL was concerned with the exercise of discretion, but we explained in the addendum that this is an area where it is critical for the Commission to have discretion. There may be a case where there is a project that might seem to qualify but the Commission may simply disagree with the violator as to whether the project is appropriate. Or there may be a case where it is a bad actor who has been recalcitrant and even though it might be a project that would qualify, the Commission does not feel it is appropriate in that case to allow the supplemental project. With some further explanation on this, we retained the discretion for the Commission to make the ultimate decision as to whether to agree to a SEP.

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If you go to page 60, I will give a couple of examples of the issue of justifying numbers. On number 3, the 50 percent penalty offset. The Commission may remember that the original staff proposal was 25 percent. At one point, the Commission considered 100 percent, and it settled on 50 percent.

We explained in the addendum that the reason for this number was to balance providing enough funds in the resolution of an enforcement actor to fund a project versus providing so high a number that the whole settlement discussion would be about the supplemental project rather than about correcting the violations and the payment of at least some portion of a penalty.

We also explained that the Legislature in two statutes authorized supplemental environmental projects — in a Public Resources Code provision and a provision in the Water Code. In both cases, the Legislature established a maximum of 50 percent penalty offset. So, we are consistent with that statutory guidance even though those statutes do not directly apply to the Commission.

If you could go to page 61. There is an Item 3 there, that a SEP shall be completed within 36 months. We added an explanation that 36 months is intended to allow sufficient time for approvals for a supplemental project to be obtained but also require that a project gets done in a relatively timely manner and does not drag on indefinitely. We also pointed out that the Executive Director has the authority to grant an extension.

The final number that we addressed is in Item 6. The original draft provided that if the project was not completed and the Commission demanded payment of the suspended penalty, payment should be made within 60 days. But in fact, the Government Code provision on penalties requires payments within 30 days of issuance of a penalty order, so in this case we revised it to use 30 days and said this is necessity to be consistent with the penalty statute.

I will conclude by saying I would be happy to answer any questions about any of the specific changes either that I have discussed or that I have not. But I wanted to close by saying that it was a very rigorous process working with the Office of Administrative Law on this; they had very detailed comments, but in the end the revised amendments, I believe, are much clearer, and particularly on the penalty policy much more organized, and the record in support of the revised amendments is much stronger with the addendum that addresses the Administrative Procedure Act standards.

Briefly on process: On April 5th we issued a notice of an additional 15-day public review period on these revised amendments, as required by law. We provided copies to the parties that commented on the original amendments — the Bay Planning Coalition and the Bay Stewardship Alliance. The comment period closed yesterday, and no comments were received.

The OAL attorney that we worked with provided a caveat that he could not pre-approve the revised amendments prior to adoption by the Commission and resubmission, but we did get to a point where he said he had no further comments, that we had addressed all his concerns.

If these amendments are approved by the Commission today, we will submit the revised amendments and the updated rulemaking file to the Office of Administrative Law next week. If they are approved by OAL, OAL will file them with the Secretary of State and these amendments should be effective on July 1st.

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Thank you very much. I am happy to answer any questions. Thank you.

Chair Wasserman: Thank you, Marc.

Peggy, I see no questions from the public in the room, although one public member is slightly hiding behind me but indicates he does not have any questions. Do we have any remote participants who have a question or comment?

Ms. Atwell replied: I do not see anybody with their hand up for Agenda Item 8.

Chair Wasserman asked: Any questions from the Commission? This is, in certain respects, excessively bureaucratic but also very important. As Marc said, although dealing with the OAL can often be painful, in this instance it was ultimately productive and so reluctantly we thank them.

With that, Marc, will you state the recommendation, please?

Mr. Zeppetello read into the record the following: Yes. The Executive Director recommends that the Commission adopt the revised proposed amendments to the Commission's enforcement procedures regulations which are attached to the staff report for this matter.

MOTION: Commissioner Eklund moved approval of the Staff Recommendation, seconded by Commissioner Butt.

VOTE: The motion carried with a vote of 16-0-2 with Commissioners Addiego, Ahn, Butt, Eckerle, Eklund, Gioia, Hasz, Moulton-Peters, Peskin, Showalter, Wagenknecht, Ambuehl, Kishimoto, Pemberton, Vasquez, and Chair Wasserman voting, “YES”, no “NO” votes, and Commissioners Beach and McGrath voting “ABSTAIN”.

Chair Wasserman announced: The motion passes. Thank you, Marc, go forth and submit. Thank you.

Mr. Zeppetello acknowledged: Thank you.

9. Briefing on the 2019-2050 Bay Area Seaport Forecast. Chair Wasserman announced: That brings us to Item 9. This is a Briefing on the 2019-2050, crystal ball, Bay Area Seaport Cargo Forecast. Cody Aichele-Rothman will introduce the briefing. But before we start I want to make a few comments on how we should proceed and what we are actually doing this afternoon, both in terms of focusing on the policy before us and to comply with the Bagley-Keene Open Meetings Act.

We all understand that this briefing has an effect on a decision that is not before us today on Howard Terminal being in or out of the Seaport Plan. That decision is not before us today. The discussions should be limited to the forecast. No, Howard Terminal is part of the forecast so it is not that those words cannot be mentioned and certainly the forecast informs our decision when we come to that as well as the overall Seaport Plan Update. But these are not agendized today. These are not the focus of our decisions today.

There is certainly a standalone appendix as part of this and there is discussion at a very high level concerning the technical and physical feasibility of Howard Terminal to be used for different types of cargo under each of the growth projections that will be discussed by the consultant and by staff accounting for certain variables.

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Any discussions regarding Howard Terminal should be similarly limited to those issues surrounding the methodology of the Cargo Forecast at a high level.

Commissioners will have the opportunity to discuss the issues regarding Howard Terminal and the Amendment 2-19 at future Commission meetings as we indicated earlier in this meeting.

The purpose of this meeting is not to discuss whether the Port Priority Use Area designation for Howard Terminal should be removed or not and no action will be taken on the Cargo Forecast itself as part of this briefing. We will consider it when we consider the Amendment to the Seaport Plan overall.

With that introduction, Cody, please start the briefing.

Coastal Planner Aichele-Rothman presented the following: Thank you for those words, Chair Wasserman. Good afternoon, my name is Cody Aichele-Rothman and I am a Coastal Planner at BCDC helping out with the Seaport Plan Amendments. While Cory Mann is our main analyst working on the Seaport Plan updates, I am here to provide a quick overview of the Seaport Plan and how the regional seaport system and BCDC jurisdiction operates across the Bay Area.

After my slides I will introduce you to Dan Smith from the Tioga Group who has been our consultant in creating the Cargo Forecast. He will go over some of the finer details of that document and be available to answer any questions that you may have.

As a quick agenda of today's events, first I am going to introduce the Seaport Plan. Second, I will touch on the proposed Bay Plan Amendments, or BPAs, followed by a look at the BPA timeline, which is third. Fourth, I will hand things over to Dan Smith to illustrate the Cargo Forecast.

After his presentation members of the audience will be allowed to come and give public comment. Then lastly, the Commission will be able to ask any questions they may have on any of the above and hopefully have a robust discussion about the Cargo Forecast.

The purpose of today's briefing is to provide an overview of the Cargo Forecast, which will inform the Commission's future consideration of two Bay Plan Amendments related to the Seaport Plan. There will be an opportunity for Commissioners to ask questions as well as for the public to provide comment.

However, I want to emphasize that this is a briefing on the Cargo Forecast, not a public hearing or consideration of either amendment and there will be no vote on either amendment today. Therefore, Commissioners, please make sure that your questions relate directly to the Cargo Forecast and save any questions related to the proposed Howard Terminal Amendment or Seaport Plan Amendment Update for future public hearings on those items.

As a state agency BCDC establishes regional land use policies for development in the Bay and along its shoreline through the San Francisco Bay Plan, which was prepared by BCDC and accepted by the state legislature in 1969.

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The Seaport Plan is a more specific application of the Bay Plan and is used by BCDC to help guide its regulatory decisions across the regional seaport system. The Bay Plan includes a section with findings and policies specific to ports.

As is stated in these findings, there is not a single port agency or authority responsible for coordinating the planning and development of San Francisco Bay port terminals. Unlike, for example, an agency like the Port Authority of New York and New Jersey.

In the absence of a regional Seaport Plan, uncoordinated development of port facilities could lead to unnecessary Bay fill. The Bay Plan therefore establishes the Seaport Plan to minimize these risks and to coordinate the regional planning and development of Bay port terminals and Port Priority Use Area designations across the entire Bay Area.

The existing Seaport Plan has five overarching goals. To achieve these goals the Seaport Plan employs enforceable policies that BCDC uses in regulatory decisions and that local governments use in their land use and regulatory decisions. Today we will be looking at the Cargo Forecast, which relates to the last goal which states, “reserve sufficient shoreline areas to accommodate future growth in maritime cargo and therefore minimizing the need for new Bay fill for port development.”

The Seaport Plan was created back in 1982 as a more specific application of the Bay Plan policies on port areas. It covers the five Bay Area seaports of Redwood City, San Francisco, Oakland, Richmond and Benicia. These five ports serve as critical gateways between Northern California and the global supply chain. The Seaport Plan needs to be updated. The Seaport Plan’s last update was in 2012 with a forecast that sunset in 2020.

In 2019 the Commission voted to initiate two separate San Francisco Bay Plan Amendments, or BPAs, that relate to BCDC’s Seaport Plan.

Bay Plan Amendment 1-19 was initiated to undertake a general update to the Seaport Plan and that work is ongoing. We look forward to completing the Seaport Plan Update and anticipate holding additional Seaport Planning Advisory Committee meetings later this summer to present the Draft Plan and other requested changes to the Port Priority Use Area designations.

Bay Plan Amendment 2-19 was initiated at the request of the Oakland Athletics to amend the Bay Plan and Seaport Plan to remove the Port Priority Use Area designation at Howard Terminal. If approved, this Amendment would be the first step for the Commission to consider a permit application for the construction of a ballpark and mixed-use development.

To assist this work BCDC staff turns towards the Seaport Planning Advisory Committee, or SPAC. The SPAC oversaw the development of the original Seaport Plan and its subsequent updates and has been involved in both these current BPAs. The SPAC is an advisory body to the Commission whose purpose is to provide expert advice on seaport-related matters. The SPAC may vote to provide recommendations to the Commission, but the Commission is ultimately responsible for voting on Bay Plan Amendments. The SPAC is currently composed of representatives from the five Bay area ports, BCDC, MTC/ABAG, the San Francisco Marine Exchange, Caltrans and Save the Bay. The SPAC has been invited to this meeting and we may have a few members here in the audience.

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One of the most important components of the Seaport Plan is the Port Priority Use Area designations. Areas determined to be necessary for existing or future port development are designated as Port Priority Use Areas and are reserved for port-related uses and other uses that would not impede development of the sites for port purposes.

Uses compatible within Port Priority Use Area designations include marine terminals and directly related ancillary activities. The Port Priority Use Area findings and policies included in the Seaport Plan are underpinned by a long-range Cargo Forecast that guides decision-making to help realize the Plan’s goals for coordinated, regional development and minimize the need for Bay fill. The Cargo Forecast is thus a critical component of the Seaport Plan.

In 2019, BCDC staff began work with the Tioga Group and Hackett Associates to develop a new Cargo Forecast in anticipation of the previous Cargo Forecast’s sunset in 2020. This work was done under the guidance of the SPAC over the course of three public meetings with individual ports also providing direct feedback.

After the release of the first draft of the Cargo Forecast in June 2019 the Oakland Athletics commissioned a separate consultant, Mercator International, to conduct a review of the forecast as it pertained to Howard Terminal that used a different methodology and set of assumptions than the Tioga Forecast, with differing results.

Mercator’s report accepted the draft Cargo Forecast cargo demand projections but argued that future demand could be met at new and existing terminals without the use of Howard Terminal.

Consequently, the SPAC directed BCDC staff to further review the Tioga Forecast as well as Mercator’s report. BCDC staff sent both reports for independent peer review, conducted interviews with terminal operators at the Port of Oakland, and conducted additional staff analysis as part of an extensive review process.

The SPAC voted 9-0-1 to approve the Cargo Forecast for planning purposes in May of 2020.

The new Cargo Forecast will inform the general Seaport Plan Update as well as the SPAC’s recommendation and Commission decision regarding Howard Terminal.

The Cargo Forecast provides projections out to 2050 for three major cargo types handled in the Bay Area. These are container cargo, roll-on/roll-off or Ro-Ro cargo, which mostly refers to automobiles, and dry bulk cargo. The forecast also includes a high level review for marine terminal capacity and potential for expansion to meet future cargo needs.

Today we have with us Dan Smith of the Tioga Group who was instrumental in the creation of the Cargo Forecast to walk us through some of the finer details of that document.

But before he gets to his presentation I would like to show a brief timeline for the BPA 2-19 as it has a more firm deadline than our other Bay Plan Amendments.

Today we are meeting so the Commission can hear about the Cargo Forecast and how that relates to the regional seaport needs. BCDC staff are hard at work developing a report and preliminary staff recommendation which will be mailed to the Commission and released to the public on May 2nd.

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BCDC will then hold the official public hearing in early June before asking the Commission to vote on this Amendment at a special June 30th meeting. Later in the summer we will turn back to BPA 1-19 to complete the Seaport Plan Update with another SPAC meeting and further Commission process.

With that, may I please introduce Dan Smith of the Tioga Group to present the SPAC-approved Cargo Forecast.

Mr. Smith addressed the Commission: Thank you, Cody. Thank you very much. I appreciate the opportunity to present today. I also want to extend our thanks to everyone who supported this work, particularly all the port staff, terminal operators and industry representatives that helped us get the answers right. We made a strong effort throughout the study to remain realistic and the only way I know to be realistic is to stay connected with the real world of ports and terminals.

BCDC needs to update the Seaport Plan and evaluate proposed Plan Amendments. To that purpose BCDC needs an objective perspective on expected cargo growth, the ability of Bay Area seaports to handle that growth, and any need for additional capacity.

Uncertainty in that process is unavoidable and one way to deal with uncertainty is to maintain a margin of reserve capacity above the expected demand. Given a finite supply of waterfront land suitable for marine terminals, the Commission needs to know how much reserve there will be under a range of cargo and capacity scenarios.

So first we developed forecasts for each cargo type through 2050 under moderate, slow and strong growth scenarios.

There is no one-size-fits-all approach so we used different forecast techniques to suit different cargo flows. We focused on the economic factors and industry trends that determine cargo growth rather than simply projecting what happened in the past.

The moderate, slow and strong growth scenarios should help BCDC establish the range of likely cargo volumes and the implications of slower or faster growth.

Second, on the capacity side we worked with the ports, terminals and industry norms to identify the available sites, understand current terminal productivity and to estimate improvements that can be reasonably expected.

In no case did we try to second guess the ports or optimize their operations. Everything we did was reviewed by port staffs. This approach yielded a series of cargo forecasts, capacity estimates and assessments of the marine terminal land required and the remaining reserve.

As Cody mentioned we have five active port complexes on the Bay and several private terminals. Those ports handle a pretty wide range of cargo types and commodities. Our work focused on three cargo types, container cargo, all of which now moves through Oakland.

Containers are those colorful boxes you see at the ports and on the highways. And while they can carry almost anything they are mainly associated with consumer or industrial goods. They are heavy and they need special cranes and handling equipment at specialized container terminals.

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Roll-on/Roll-off vehicle cargo, which is principally import and export autos and trucks; those vehicles are driven on and off so-called Ro-Ro ships that are essentially floating parking garages. Ro-Ro cargo moves through Benicia, Richmond and San Francisco.

And then dry bulk cargoes which include imports such as sand, gravel and gypsum and exports such as scrap metal and petroleum coke. Dry bulk cargoes actually move through all the port complexes if you include Schnitzer Steel in Oakland.

You will note that non-petroleum liquid bulk and break-bulk cargo types are not forecasted. The non-petroleum liquid bulk cargo is limited to vegetable oils and chemicals handled at just a few terminals and presents no capacity issues. Break-bulk includes non-container, non-bulk cargoes such as structural steel or windmill parts, and there is no Bay Area break-bulk cargo moving at present.

Our past forecasting record is mixed, as is common with long range forecasts.

For containers most forecasts, including ours, which was made at the bottom of the recession in 2009, expected faster post-recession recovery. It did not happen.

The West Coast also lost some momentum during the 2014-2015 management/labor issues. By 2018 Bay Area container cargo was growing again at something near the forecast rate, then the pandemic hit.

For Ro-Ro cargo we were pretty close to forecast as of 2018, although the path to get there was different than we expected. Here too we had a post-recession lag.

Bulk tonnage did pick up after the recession but you can see that it has varied since. Some of the variability is the rise and fall of export coal. Dry bulk can be hard to predict because it involves only a few commodities, importers and exporters.

You can see here that timing is critical because our perspective tends to be colored by recent developments. We cannot forecast disruptions but we know they will occur and the long-term growth rate should encompass both downturns and upturns. I think the key takeaway from previous forecasts is that trade can vary widely in the near-term but we need to get the long-term trend right.

Bay Area seaports serve the Bay Area itself and a broader market area including much of Northern and Central California, Western Nevada and Southern Oregon.

There are also rail connections that link Bay Area ports to more distant origins for exports such as frozen poultry and coal to destinations for import autos. Import and export demand in that market territory will drive Bay Area cargo growth and that is what has dictated our forecast approach.

We reviewed a number of economic outlook reports produced by government agencies, banks and other, and they are documented in our Report.

The most recent long-term, post-pandemic economic growth forecasts center around 1.9 to 2 percent, as you can see in that Congressional Budget Office chart on the right.

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We also paid attention to expectations for slower population growth than in the past and slower economic growth in California. We looked at things such as the forecast growth in vehicle miles traveled as an indication to import auto demand and the annual energy outlook for insights into export pet coke and coal. We then applied these various economic trends as seemed appropriate for each Bay area cargo flow.

That is all fine for the long-term but right now we are in the tail end of the pandemic, or at least we hope it is the tail end, and it is logical to ask what difference that makes.

The pandemic has had some extraordinary short-term impacts on trade. The container trades have experienced a massive import surge, a drop in exports and widespread port congestion. The chart on the right tells the story.

When the pandemic hit, factories in China closed. The dire outlook led major retail chains and importers to cancel orders and imports dropped. But they rose strongly when we all decided to buy things to make life easier in lockdown and the stimulus payments set off another strong increase.

Importers are still trying to fill their shelves and the trade press is full of stories about port congestion. That port congestion and a decline in foreign buying led to a drop in exports and you can see the diverging trends there.

To cope with the congestion some ocean carriers’ voyages skipped Oakland and the importers had to truck their goods up from Southern California. How long will this last? Certainly a few more months but not forever. Based on everything we have seen we still expect to return to more moderate long-term trends.

Ro-Ro vehicle imports and exports are also down due to worldwide chip shortages and other issues that have cut vehicle production. You have probably seen stories about new and used auto shortages and the higher prices being asked and paid. That is a pretty solid indication that import flows will recover once the cars are actually available.

Most dry bulk flows are also down; but dry bulk is different because most Bay Area imports are linked to construction activity rather than consumer demand.

Construction activity took a nosedive during lockdown. California had a 3.7 percent decline in new building permits during 2020. But 2021 permits were up almost 11 percent and actually higher than they were in 2019, again signaling a long-term return to trend.

I mentioned container cargo moves only through the Port of Oakland. At one time we had container terminals in San Francisco and Richmond but the container lines have concentrated in Oakland and there is no indication that they would ever go back to other ports.

Container trade is measured in 20-foot equivalent units or TEU. One TEU is equivalent to a 20-foot container. Most containers are 40 feet and count as two TEU.

To forecast the overall container flow we took it apart into its eight components, loaded imports, loaded exports, import empties, export empties, loaded inbound domestic, loaded outbound domestic, inbound domestic empties and outbound domestic empties. We forecast each of the four loaded volumes separately even though the domestic trades account for just 8 percent of the total volume.

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Basically, we used existing models and growth rate projections and tailored them for each flow. One key step was to include increased near-term import cargo from expected first call vessels that would serve Oakland directly from Asia rather than stopping in Southern California first.

Those services actually began in 2021 but the pandemic has delayed their impact. Economic growth rates apply to the goods being traded, which move in the loaded containers. We also forecast empty containers using the established relationship between loads and empties.

In the 20 years from 1998 to 2018, Oakland’s container volume grew at a compound average growth rate of 2.2 percent.

The pandemic downturn reduced that average to about 2 percent and recovery will probably push it back up a bit. As both graphs show, however, growth has been anything but consistent. The only years with growth at about 2 percent were actually 2014 and 2017. So you can see that what we have had is a long-term growth trend at about 2 percent with a series of unpredictable disruptions. As I said before, we cannot predict disruptions so we focus on the long-term growth rate with the understanding that short-term fluctuations will continue.

Shown on the left, we wound up with different growth rates for different trade flows, with imports growing the fastest, in part due to the expected import volume bump from those first call vessels. The long term growth rate before we added the first call imports average 1.9 percent, which is in line with expected post-pandemic real GDP growth. The first call volume bump raised the overall average to 2.2 percent.

I want to emphasize that the 2.2 percent is a composite growth rate of eight different flow forecasts, not a projection of the historical rate. That the forecast rate is the same as the historical growth rate probably reflects similar underlying factors in both. That moderate growth scenario would put Bay Area container cargo at about 5.2 million TEU by 2050.

We also put together slow and strong growth scenarios, bracketing the moderate growth forecast with different assumptions about first call vessels and long-term growth a half percent lower and a half percent higher. The chart on the right shows the expected moderate growth path and the range of outcomes under different assumptions.

How does this moderate growth forecast based on 2018 actuals shape up against recent figures? In 2019 the forecast was only 1/10 of a percent off the actuals. As the pandemic hit, the actuals diverged from forecast as you would expect and the volumes wound up between the moderate and slow forecasts.

We have had a massive import surge. Oakland actually had a record year for imports in 2021 and was about 7 percent above our forecast. Exports were about 6 percent below the forecast with mixed impacts on the smaller flows.

Many containers were stranded inland or at Southern California ports, which likely diminished the empty flows to and from Oakland.

And as both the ports’ newsletters and press releases document, loss of vessel calls held down both import and export volumes last year. Vessel calls were down 30 percent from 2020. Container cargo was down slightly and ended up at about 2.4 percent below the moderate forecast and 2.2 percent above the slow forecast. I think it is safe to say that the volume would have exceeded the moderate forecast except for those vessel diversions.

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With that forecast in hand we looked at the existing and available container terminal space to handle the expected flows.

Oakland has four active container terminals, one off-dock terminal yard and five sites where we could expand or supplement their capacity. All these acreage numbers, like each number in the Report, were subject to port review and correction.

We looked at total acreage assuming that terminal boundaries, terminal operators and ocean carrier assignments could change over the next 30 years, just as they have over the last 30.

We split off the 18 acres of back land behind Berth 20-21 because there is an active proposal to use that space for dry bulk cargo for the next 12 to 15 years. The Roundhouse property has no water access so it would only be in addition to the back lands at the Matson Terminal.

So in 2018, Oakland had 563 acres of active marine terminals and OICT was using 30 acres of off-terminal space at the Shippers Transport Express or STE site for remote parking as well.

The port had 246 acres of additional terminal space in interim uses, making a total of 799 acres without that off-dock site.

All those terminals will almost certainly be electrified by 2050 so we allowed two acres per terminal for substations, battery buildings and other new infrastructure. That leaves a maximum available of 787 acres.

We used industry benchmarks for terminal throughput per acre. We arrived at a 2050 average of 7,112 annual TEU per acre, which is something of a stretch goal because it is 67 percent higher than Oakland’s 2018 average.

Since Oakland is a landlord port and does not operate the terminals the burden of achieving that higher productivity average will fall mostly on the terminal operators such as TraPac, Everport and SSA.

Nobody can guarantee that productivity increase but we think it is reasonable to expect it. The terminals will use different combinations of physical infrastructure, equipment, labor and technology and we did not try to second guess them.

With moderate growth, all available acres and that improved productivity, Oakland would be at about 93 percent of capacity by 2050.

If either the Berth 20-21 acreage or Howard Terminal were used for other purposes capacity gets tighter, as we would expect, and Oakland would be at 95 to 97 percent of estimated capacity by 2050. If both are used for other purposes, Oakland would be at 100 percent of capacity by the forecast horizon with no reserve capacity for growth.

With slow cargo, everything fits.

With strong cargo growth Oakland would run out of capacity sometime after 2040 and would be 25 to 35 percent over capacity by 2050.

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We also looked at Oakland’s supply of land for ancillary port needs such as overnight truck parking and transloading. These needs are hard to estimate because with truck parking space being scarce in the Bay Area, trucking companies will want more than the Port can provide.

The Port has about 240 acres to work with. The city of Oakland also has about 63 acres being built out with distribution facilities and Union Pacific has about 17 acres in two sites being used for transloading. That totals about 314 acres.

Using the spreadsheet model originally developed in a 2001 Port Services Study we came up with acreage requirements ranging from 167 acres with slow growth to 269 with strong growth and with moderate growth needs at 209 acres.

So it looks like the kinds of ancillary services we modelled will probably fit. This does not include container depots, training facilities, chassis depots and other kinds of functions that may be on those sites or elsewhere at present.

Right now the Port is using parts of the Howard Terminal and the Roundhouse site for ancillary services. When and if those sites become parts of marine terminals those uses will have to be relocated. Being near the port is obviously an advantage for those functions, but they were not identified as having critical proximity needs in the earlier study and some are, in fact, spread out through the East Bay now.

Next, we addressed the Ro-Ro vehicle cargo. As the pictures from Richmond above and San Francisco below show, Roll-on/Roll-off cargo means just that, vehicles driven on and off these ships. Those are Honda imports arriving at Richmond and those are all Teslas lined up for export at San Francisco.

To forecast imports, we looked at a number of trends including population growth and household formation as potential factors in import auto demand.

For the long term we settled on the Federal Highway Administration National Forecast for vehicle miles traveled, which are expected to grow at 0.7 percent through 2047. We adjusted that slightly upward to 0.94 percent based on an International Trade Administration Forecast of a growing import share. That became our base growth rate for imports. For slow and strong growth we used forecast ranges from those two sources.

Exports were a puzzle because Tesla’s shipments had grown very rapidly starting in about 2017 but we could not expect that rapid growth to continue. Due to expected Tesla production in China and elsewhere we modeled a declining growth rate between 2019 and 2026 with a return to the 0.94 import rate thereafter.

With Ro-Ro trade we are counting vehicles rather than TEU or tons. These are the forecast results with relatively rapid near-term growth due in part to exports and then more gradual long-term growth.

Similar to the container forecast, the near-term growth added to the slower 0.94 percent long-term rate raises the overall compound average annual growth rate to 1.3 percent. As export growth levels off, we get the expected return to trend. And you can see the slow growth scenario is down to 0.6 percent, strong growth at 2.3 percent, and they produce higher and lower corresponding volumes.

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We then looked at Ro-Ro terminal productivity and capacity. Here too we analyzed imports and exports separately.

Terminal productivity depends upon how many vehicles can fit on an acre and how long they stay. The smaller they are and the faster they leave the terminal the more you can handle.

In 2018 Bay Area terminals averaged about 1,740 annual vehicles per acre. That was about 1,700 per acre for imports but a higher average for exports since they do not stay as long. The average productivity rises as long as exports grow faster than imports in the near-term. We settled on a modest base case productivity improvement to 1,976 annual vehicles per acre and then we also identified lower and higher capacity scenarios.

We did look at the impact of larger versus smaller vehicles, importer strategies and rail versus truck shipments as input to those high and low scenarios.

We found that about 215 acres were in use for Ro-Ro cargo at Richmond, San Francisco and Benicia; and that we probably needed about another 160 acres by 2050 with moderate growth and expected productivity increases. The candidate sites at San Francisco, Richmond and Oakland amount to 127 acres, so we may see a shortfall by 2050.

Dry bulk commodities are moved in bulk vessels like the one above at Redwood City; and they are handled using mechanical equipment at bulk terminals like the one below there at San Francisco.

The dry bulk forecast presented a different set of challenges because each major commodity has its own story. We measure dry bulk cargo in metric tons or MTs. One metric ton is 1,000 kilograms or about 1.1 US tons.

Sand and gravel, collectively called aggregates, are used all across the construction industry and the demand grows as construction grows.

Northern California’s own sand and gravel supplies are limited and as they are used up they will be replaced with more imports, so aggregate imports will grow with both growing demand and import substitution.

Imported bauxite and slag are used as cement additives, so those imports will grow with cement construction. Gypsum is used to make sheetrock, again linked to construction growth.

Export volumes for scrap metal, petroleum coke and coal depend upon world market supply and demand conditions.

We wound up using a mix of factors including population growth, per capita consumption and US Department of Energy projections. Sand and gravel are the most important commodities and as you see below, we used those estimates for increased import substitution.

And these are the results. You can see the combined dry bulk tonnages for the three scenarios and a comparison of the commodity groups. Moderate growth at an average of 3.1 percent would give us 20.7 million tons in 2050, slow growth at 1.4 percent would yield 12 million tons and strong growth at 4.6 percent would yield 33.2 million tons. The chart clearly shows the dominance of the import aggregates, which due to that import substitution, account for about 70 percent of the total by 2050.

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Dry bulk terminal capacity depends upon how much can be stored on site and how often that inventory turns over, basically the same factors as container or Ro-Ro cargo.

Import terminals typically receive large vessel loads of material and then use it or deliver it over time until the next vessel arrives. As the table shows, we looked at a range of available benchmarks and settled on a base case working productivity of about 113,000 annual tons per acre, which is more than double the existing average.

That means we are assuming, based on the input we got from the operators, that the operators can and will increase throughput on existing land as long as possible. Under this moderate growth scenario, we would need only 12 additional acres for dry bulk cargo by 2050, slow growth would require no new terminal space, while strong growth would obviously require much more.

Even talking at a high level, that is a lot to cover. If we look at all the different scenarios for cargo types, forecasts, capacities and so forth, there are nearly 2,000 different combinations of forecasts to look at. So we have condensed the main findings into just a few summary tables. As this table indicates, if we get moderate growth across all cargo types and base case productivity improvements we will need an additional 308 acres of active terminal space by 2050. If that 30 acre STE off-dock container staging site at Oakland is used for ancillary services instead we would need about 338 acres.

If we get slow growth and base case productivity we will only need about 98 acres.

If we get strong growth across all types but still have base case productivity we would need about 731 new acres.

More aggressive productivity assumptions would reduce the land requirement but, of course, there is no guarantee that terminal operators can meet those assumptions. If productivity falls, we will need more land. But aside from periodic peak period congestion there are no real reasons to believe productivity will fall.

Here are the available marine terminal sites that were identified by the ports. The Howard Terminal outline down there shows the approximate 10-acre loss for turning basin expansion. Most of this land is in some kind of interim use, but these sites are either on the water or next to existing terminals. The location, size and use of these sites were reviewed with the port staffs.

So there are about 323 acres of seaport terminal land either idle or in some interim use. Those acres can be used in several ways but we did not try to develop any optimum solution.

San Francisco’s Pier 96 site, for example, could be used for either Ro-Ro or dry bulk cargo. Howard Terminal can probably be used for containerized, Ro-Ro or dry bulk cargoes.

We did assume that Oakland’s Berths 22-24 and 33-34 would eventually be used for container cargo and that the Roundhouse property would be used as additional back lands to what is now the Matson Terminal because it does not have its own water access.

Redwood City has proposed adding two port priority use acres so for clarity we have included that in the table.

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With moderate growth and base case productivity we need to put about 308 of those 323 acres to work by 2050 and we would have a bit of reserve capacity. If the 30 acre off-dock STE site is used for ancillary services we would need about 338 additional acres against a supply of 323, leaving a slight deficit. With slow growth we have no problem. With strong growth across all cargo types we could easily be over capacity.

In the end, the analysis is very complex but the findings are relatively simple. With moderate container, Ro-Ro and dry bulk cargo growth and expected productivity improvements, capacity will be very tight by 2050 with a small reserve. With slow growth across all cargo types we have ample capacity. And with strong growth in all cargo types we would be over capacity.

Port of Oakland can probably handle moderate container cargo growth through 2050 without the 18 acres of back land at Berths 20-21 or Howard Terminal and with the expected productivity increases, but Oakland would be topped out with no room for further growth.

San Francisco’s Pier 96 and Richmond’s Terminal 3 have some space for moderate Ro-Ro growth but probably not enough. Even if we use Howard for Ro-Ro cargo we may still not have enough space.

Dry bulk cargo can go to San Francisco, Richmond or Oakland but that could conflict with the Ro-Ro and container units.

Now the risks, of course are, either not having enough capacity to meet the Bay Area’s future needs or setting aside too much land and having it underutilized. One could lead to rising costs, more supply chain disruption and pressure for Bay fill to expand the ports. The other would be a waste of unique resources. Basically, waterfront terminal sites are a finite resource and once capacity gets tight we have to work through the choices and tradeoffs.

That is a lot to cover and I am sure there were questions and comments so I will stop here. Thank you for your attention.

Chair Wasserman acknowledged: Thank you, Dan.

I think that brings us to Public Comment.

Ms. Atwell stated: Chair Wasserman, we have a lot of Public Comment. So I remind everybody that the discussion is on the topic that we have spoken about. I’m going to ask you to state your name. I’ll unmute you.

Chair Wasserman interjected: I’m sorry, Peggy. Can I make one interruption?

Ms. Atwell replied: Sure.

Chair Wasserman continued: I think it would be useful to start the Public Comment with representatives from the Port of Oakland because they are the dominant port and dominate many of these categories.

I think that we have Danny Wan, the Executive Director of the Port available, and I am not going to restrict him to three minutes.

Ms. Atwell stated: He is a panelist. Do you want to let him speak?

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Chair Wasserman answered: Well, yes, but let’s — I mean I still think it would be appropriate in terms of thinking about these projections to hear from our predominant port. Go ahead, Danny.

Mr. Wan addressed the Commission: Thank you, Chair, for the opportunity. Thank you. For the record I am Danny Wan, Executive Director of the Port of Oakland, and good afternoon, BCDC Commissioners and staff.

I wish to express first of all my appreciation for all who contributed to the Cargo Forecast. It is a very complicated task. We have had the opportunity to work with many of the staff at BCDC to supply some of the information. Today I just wanted to cover some clarifications as well as further refinement on the situation at the Port of Oakland.

First of all, as you heard, a Cargo Forecast relies on a lot of assumptions and factors to estimate the year 2050 growth and capacity.

And as you heard, they were talking about three types of cargoes, container, dry bulk and Ro-Ro. And the Cargo Forecast attempts to predict the precise acreage needed for the year 2050, sometime in the future.

My goal here is to make the most reasonable, and I think our goal here is to make the most reasonable assumption to look forward to a 2050 future, and based on the most reasonable assumptions, to make a policy determination of what is needed to accommodate cargo needs for each of the three categories.

As Dan has pointed out, sort of underestimating the need may cause need for more land in the future to cause fill, but an overestimate of the need is going to cause wasting land and valuable resources, especially waterfront land in an urban area. Wasting that is a precious resource right now.

As Dan points out and we concur, that both container and dry bulk cargo needs will be accommodated in the forecast period under the reasonable growth scenarios of the low and moderate growth scenarios. So we do not dispute that. We agree with there is enough land by 2050 for container and dry bulk in 2050.

So I will focus my remarks on the following: Based on the Port of Oakland’s historical growth and container cargo volume, which is again predominantly container, and given the constraints on Port operation, we think the slow growth scenario is the most reasonable growth scenario for containers.

And based on new facts since the Tioga Cargo Forecast was completed in 2020 and based on a 2018 baseline, these current events after the forecast was done showed us there is more than sufficient capacity for even automobile Roll-on/Roll-off operations by 2050.

And that given enough capacity for both containers and dry bulk as well as what I will show you enough capacity for Ro-Ro as well, the possibility for Bay fill in the region is not a realistic scenario.

First, just a few notes on a Tioga projection particularly applying to the Port of Oakland. We recognize that developing precise forecasts is an imprecise science as industry trends, competition with other ports, as well as environmental justice considerations, air quality constraints and market disruptions all complicate the ability to forecast.

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For example, at the Port of Oakland, which predominantly moves container cargoes, the actual volumes have consistently underperformed all previous forecasts. To illustrate, we still operate under a 2009 cargo forecast as we go on this new forecast. But under the current forecast completed in 2009 it calls for the Port of Oakland to have 3.1 million TEUs of container volume at the Port in 2018. But the actual volume in 2018 at the Port of Oakland was 2.5 million TEUs, a 24 percent overestimation based on the forecast.

As illustration, even as news headlines today highlight the record volumes of imports congesting American ports, the container cargo volume for the Port of Oakland in 2021 actually dropped compared to 2020 container cargo volumes. And for the first quarter of 2022 the volume at the Port of Oakland container continued to drop by 6.2 percent compared to the first quarter of 2021.

If I may show a couple of slides. Do I have access to the slides? Ms. Atwell stated: Yes, you can share your screen. Mr. Wan continued: Great, thank you. So how does this impact the Cargo Forecast in

question? The Tioga Cargo Forecast projects a 2.2 compound annual growth rate on 2018 container cargo volumes, assuming a moderate growth, compared to the historical actual growth rate from 1998 to 2021 of 1.9 percent. Mr. Smith actually says that from 1998 to 2021 the actual growth rate at the Port is 1.9.

However, most of the 1.9 growth in the 24-year period was concentrated in a span of 8 years from 1998 to 2005. If you notice, most of the cargo volume increase that contributed to the 1.9 percent growth rate actually happened between 2001 and 2005-6. Why?

That was because the Port of Oakland inherited 600 acres from the Naval Fleet Air Supply Station during that time, which allowed us to spend $1 billion in debt to build a new terminal and that is the actual, most of the growth in that 25-year period happened during that time.

The opportunity to get another 600 acres or another billion dollars of the debt, which we are still paying off, is not going to happen in the near future or even the distant future.

So, if you take that aberration off of the chart, the actual growth for the Port from 2005 on forward to today is actually 0.46 growth rate between 2005 and 2021. All this to point out is that the Port of Oakland growth in terms of volume is very constrained due to many factors.

Given the fact the Port’s expensive growth rate during the most recent 17 years of only 0.46 percent, it is drastically lower than a 2.2 moderate growth forecast currently before you for consideration.

Also, just to point out an interesting factoid, I think, during this period the Port of Oakland in comparison to other container ports in the United States, we moved from being the fourth busiest container port in terms of volume to the ninth or tenth in the country. On another day I can discuss the many factors that constrained the Port of Oakland’s growth but today I will just leave it there.

With this background on Port of Oakland’s growth I segue to the first point I outlined up front, that is, the Port’s volume growth history. Other constraints on volumes suggest that a more reasonable forecast is a slow growth scenario set forth in the Cargo Forecast currently before you.

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Even though the Port concurs with the BCDC staff, albeit with the Tioga Report, even under the moderate growth scenario the region’s container needs will be met even without Howard Terminal. I am urging the Commissioners consider that there will be more capacity at the Port of Oakland than projected even under the moderate growth scenario given the historical trends and reflective constraints on growth at the Port of Oakland.

I feel that I am compelled to just briefly address the strong growth scenario. I do not think the Tioga Report disagrees with this. I think that any reasonable examination of the circumstances today will lead to the conclusion that a strong growth scenario is unreasonable and unrealistic in any basis for policy decisions.

The strong growth scenario would have the Port of Oakland growth volume to 7 million TEUs by 2050, compared to today’s 2.4 million TEUs. Under that scenario, the strong growth scenario, container volume at the Port of Oakland will grow approximately 180 percent from now to 2050, a growth rate that is not supported in fact or in history. Even in the unlikely event that there is enough cargo volume demand to come to the Port of Oakland in that strong growth scenario, the environmental justice, transportation, regulatory, infrastructure constraints will make that kind of volume growth unrealistic.

Now we need to address the next cargo type, Ro-Ro, which is the one cargo type that even under the moderate scenario the Tioga Report reports as a shortfall. In keeping with Mr. Smith urging that the forecast needs to be based on real and updated situation, I highlight new information since the Cargo Forecast was completed. Industry trends in the automobile export sector suggest the projected need is inflated in the Cargo Forecast.

I also want to highlight that the factual assumptions in the forecast seem to significantly undercount the acreage that is actually available for Ro-Ro operation to serve the market in the Bay Area.

First of all, if we correct for the over-inflation demand for car exports and undercounting available capacity, the Port of Oakland suggests there will be enough capacity in the Bay Region in the Forecast to accommodate Ro-Ro.

So first, I sort of pulled some headlines. In the Cargo Forecast there is an assumption; there is a significant increase in exports from Tesla, the one export facility in the Bay Area in Fremont, California. Yes, if they export we hope they will use the Port of Oakland. And at the time that this forecast was constructed there was a great optimism that Tesla would use Fremont as a main export factory for Tesla.

And in fact the Port of Oakland discussed with Tesla and others in terms of investing in Howard Terminal, for example, for a Ro-Ro facility. That never materialized even under an assumption years ago that Tesla was going to export lots of cars from Fremont.

You will see that the headline today is very different from 2018 or 2020 when the Report was adopted. Half of Tesla’s global deliveries in 2021 now come from China as Tesla moves its export hub to Shanghai from Fremont. We also know that since 2018 that Tesla has moved its headquarters from Fremont to Texas, is planning a factory in Texas, and also at the same time has opened a factory in Berlin that will start delivering from Berlin starting in March 2022, which is probably now.

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So it is very clear to us that the export volume that was anticipated in the forecast is not going to materialize as we had hoped, and we had all hoped.

Second point: We believe that the Ro-Ro analysis omits important acreages currently at Benicia, which we understand and we checked with various sources, is 225 acres, whereas in the Report they only count 75 acres at Benicia as a Ro-Ro capacity. If you look at the pictures, on the right is Benicia’s 225 acre Ro-Ro capacity and if you take a picture overhead you will see lots and lots of cars parked there. For an explained reason the forecast in Ro-Ro only accounts for 75 acres at Benicia.

On the right, also a few miles down the Carquinez Strait down from Benicia is the Antioch Ro-Ro facility. That facility is, as I understand it, 110 acres in Antioch.

That is not counted in the Tioga forecast. Why? As we understand it, because it is a few miles outside the lines designating the Port Priority Use Area for the Bay Area region. As Mr. Smith points out, we want to do this forecast based on real-life situations and realities on the ground. The real-life situation and reality on the ground is that Antioch in fact serves the Bay Area region for Bay Area auto imports and export. It is a Ro-Ro capacity for the Bay Area region that we are not accounting in the forecast.

We would urge the Commission to make sure that both the demand for Ro-Ro is accurate based on Tesla’s new plans to really export cars out of both China and Berlin rather than the Fremont area, and also based on the additional acreages that are simply available at Benicia and Antioch.

Interesting note, we all know that Benicia’s Ro-Ro facility had a fire and we all understand that Benicia has already recommenced that Ro-Ro operation at Benicia and intends to continue that operation. But interesting note, some of the capacity, some of the cars during that interruption period were moved to Antioch, which demonstrates that Antioch really is serving the Ro-Ro capacity in the Bay Area.

So we believe that with expansion potential at the Port of San Francisco also there is capacity there, at Richmond, Benicia and Antioch, the long-term Ro-Ro demand can be met comfortably both under the slow and moderate growth scenarios in the projection.

Based on my presentation I hope to sort of give you some consideration that all this demand for both container, which the Tioga Report says, can be met under the moderate growth scenario by the Port of Oakland; and also dry bulk obviously is fulfilled under all scenarios; and that with the extra capacity and the adjustment to the demand for Ro-Ro, that all this demand can be met in the Bay Area without any need for Bay fill.

I just want to make a note on Howard Terminal since the Tioga Report does assume that if there is any, if there is any need for extra capacity, that somehow Howard Terminal can fulfill that need. I just want to point out that Howard Terminal is an isolated, small facility. Again I am going to share a screen just for illustration purposes.

Chair Wasserman interjected: Danny, can you come close to wrapping up, please?

Mr. Wan replied: Yes, actually I am going to wrap up now. I do not think we need to make that last point. I just want to point out that Howard Terminal is a very isolated corner and it is too small for container operations for a big ship today.

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The reason that it is abandoned and not a current terminal, because the terminal operator that used to operate here vacated the property in 2014 because it was no longer sufficient for modern terminal use. I will stop there. Thank you very much.

Chair Wasserman acknowledged: Thank you. Before I go to the general public speakers, are any of the people signed up to speak from other ports? I do not want to be accused of too much favoritism to Oakland. So raise your hand. I am sorry; I assume there are not 20 people from other ports. Okay, it does not appear so, if there are I apologize, we will pick you up as we come. Larry is scanning names to see if anything pops. Nothing? All right.

Let’s start with the public speakers in order. There are 20 of you. I am going to ask you to please limit your comments to two minutes given the hour and that we have to get to Commissioner comments.

Ms. Atwell announced: Okay. Margie Lewis will be first, Cathy Leonard second. Margie, go ahead, unmute yourself, you have two minutes.

Ms. Lewis commented: Good afternoon. My name is Margie Lewis and I live in Oakland. I am here to speak in favor of retaining Howard Terminal as a Port Priority Use Designation Area.

The Tioga Report is independent and not subject to machinations of the A’s and or a mayoral appointee. Facts show that Howard Terminal is critical to the future of the Port of Oakland and should be retained as a Port Priority Use Area under nearly all future commercial circumstances.

We are seeing the need for all available port land bear out in real time as 25 acres in Howard Terminal has just been converted to an ag export terminal, something that would be impossible if it were given over to commercial development.

We are now in a period where the supply chain is congested with historically high demand globally. Every other port in the country is making maximized land available for key maritime and support functions.

The Port of Oakland is not suffering from low volume. In 2021 it set an all-time high record for import cargo as did nearly every other major container port in North America.

BCDC should be looking at ways to increase port land to support maritime operations, not remove it. If this property goes away the option to use the space for maritime uses and support logistics vanishes forever. Once it is gone it is never coming back.

We understand that the city of Oakland certification of the EIR for Howard Terminal triggers a special legislation timeline on consideration of an amendment to the Seaport Plan. That does not mean that BCDC needs to abandon its planning principles. It is imperative that when pressured to make a decision without a factual justification the BCDC stand firm and abides by its core mission. In conclusion, Howard Terminal needs to be retained as a Port Priority Use Area. Thank you.

Ms. Atwell continued: Thank you very much.

I am going to recognize Mr. Coleman from the Port of San Francisco. Go ahead, unmute yourself, Mr. Coleman.

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Mr. Coleman offered comments: Thank you. Good afternoon, BCDC Commissioners and staff. My name is Andre Coleman with the Port of San Francisco. I would like to comment on the Bay Area Seaport Plan Forecast.

As you know, Port staff worked very closely with the Tioga Group and BCDC to identify both current and future available acreage for cargo throughput and we concur with their projections as it relates to the Port of San Francisco.

We also recognize that there are market dynamics that may challenge our ability to attract certain types of cargo at our terminal facilities. Despite potential challenges, the Seaport Plan Forecast accurately captures available acreage at the Port of San Francisco and we continue to explore opportunities for attracting new business at our cargo terminals. Thank you.

Ms. Atwell continued: Thank you, sir.

Okay, now I am going to go to Cathy Leonard. Cathy, go ahead. Hold on a second, Cathy. Cathy, it looks like you are using an older version of Zoom. I am going to temporarily promote you to a Panelist and you will have two minutes to speak. Go ahead.

Ms. Leonard spoke: Thank you. Good afternoon. I am Cathy Leonard, proud native of Oakland. I am calling in regards to the agenda item that deals with Bay Plan Amendments 1-19 and 2-19 and I ask this body to reject all amendments.

In 2019 the Bay Conservation and Development Commission commissioned a Cargo Forecast by the Tioga Group which clearly showed that under all future scenarios, except for extremely low growth, Howard Terminal was needed to meet cargo capacity.

We are seeing the opposite of extremely low growth. We see the need for all available port land. Twenty-five acres at Howard Terminal has just been converted to an ag export terminal, something that would be impossible if given over to commercial development.

Both the BCDC staff and the Seaport Planning Advisory Commission expressed its full support for the Tioga support findings, but no new evidence has come forward which would suggest a change of course at this juncture.

The facts show that Howard Terminal is critical to the future of the Port of Oakland and should be retained as a Port Priority Use Area under nearly all future commercial circumstances. Let’s support maritime activities. Thank you.

Ms. Atwell called for the next speaker: Thank you very much. Okay, next is WO EIP. Go ahead and unmute yourself, state your name for the record and you have two minutes.

Mr. Beveridge commented: Thank you. My name is Brian Beveridge. I am the Co-Director of the West Oakland Environmental Indicators Project and we have worked closely with BCDC on the Bay Adapt Project and equity issues.

I want to say regional cargo projections must take into account local impacts of increased trade. Our local neighborhoods cannot be made sacrifice zones for regional consumerism. The Port of Oakland has to be viewed as part of a regional freight system that includes freeways and transportation and other ports that are growing like Stockton and Sacramento.

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The Port cannot simply aggregate all freight business in one place. As Executive Director Danny Wan said, there are too many constraints; and I appreciate the honesty in his comments about the capacity of his, of his facility.

Throughput has been steady for 15 years and when it bumped up a couple of years ago suddenly there is chaos. We cannot move all this stuff off the docks, onto our freeways and through our neighborhoods. Current volumes are already challenging.

Finally, West Oakland was abandoned by private investment decades ago. Our waterfront is dominated by cargo activities that bring few jobs and much health impacts. Diversifying uses, whether ballparks, open space, other retail commercial, is critical to bringing new economic and health benefits to our overburdened West Oakland neighbors.

We have to have investment in our community that will create some kind of new jobs for us. Over 30 years of the Port growth we have not seen those opportunities arise in our communities and so we need to use the land we have available to improve the quality of life for our communities. Thank you.

Ms. Atwell acknowledged: Thank you, sir. Cheryl Walton, go ahead and unmute yourself. State your name for the record, you

have two minutes. Ms. Walton addressed the Commission: Hi, Cheryl Walton. Okay. Even though the

group presentation today was technical for commoners like me, it clearly indicated to me that the pandemic impacted current cargo use estimations and fluctuations and depends on what we don’t know.

These projections and forecasts of cargo needs under the moderate growth scenarios for container and parking for trucks suggested Howard Terminal will be needed to meet container and other types of cargo capacity by 2040. Many have already spoken about the current facts that show that we are seeing the need because we are currently using 25 acres of Howard Terminal as an export, to be an ag export terminal, something that would be impossible if given to commercial development. And the supply chain, as we all know, is still congested due to the historically high demand globally.

So from what I was learning from all of this presentation, and the need for this extra, what is it called, the margin of reserve and all of that - that we still need, our Howard Terminal needs to be retained for priority use as a port, as a Port Priority Use, period. And I am surprised the Port staff is not supporting keeping Howard Terminal as a Port Priority Use. Thank you.

Ms. Atwell acknowledged: Thank you very much. Okay, next we have Jennifer A and after Jennifer we are going to have Susan Ransom.

Jennifer, go ahead and unmute yourself, state your name for the record and you have two minutes.

Ms. Arbuckle spoke: My name is Jennifer Arbuckle and I am an Oakland resident. As you know, the Bay Area just made the top five list of particulate pollution in the US. How is this going to be addressed and did the analysis by the Tioga Group take this into consideration? Wouldn’t pollution get worse for West Oakland if moderate and strong growth were to occur? That would be devastating for the community. Thank you.

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Ms. Atwell continued: Thank you.

Susan Ransom, go ahead and unmute yourself. State your name for the record. You have two minutes.

Ms. Ransom commented: Hi, Susan Ransom, SSA Terminal, Oakland. Thank you, Dan, for your overview and for carving out the ten acres of land we know will be used for the turning basin.

It is a sad day listening to our landlord spin the mayor’s narrative in lieu of standing for the marine stakeholders.

This is not an actual vote today. I respectfully like to present as a reminder of my previous comments a letter dated March 31st, a letter to BCDC, that as of today April 21st we have 12,000 imports on-dock, 6,500 are in undeliverable areas due to lack of available space, 700 are waiting to move off-site, 13,500 empties. Today we just shut out a major steamship line on empty return due to volumes and pushed them to Howard Terminal. So 7,500 exports are waiting to load the vessels and 23 steamship lines contracted with SSA, not including the smaller TEU charter ships calling, adding additional volume such as Bao Hai Transfer, Polynesia, Paige International and Matson’s International Service.

We are currently in final discussion with a charter company on a longer-term contract for consistent calls to Oakland. There are six vessels waiting to dock in Oakland due to unavailable space. We also have four to five vessels at dock seven days a week at an 81 percent terminal capacity. Rail gateways are full causing delays in ships unloading.

We have just gone through a pandemic and unavoidable circumstances that have changed the shipping dynamic. The Port of Oakland is growing and will continue to grow for years to come with maritime land at a premium.

Danny, as a general reminder, not all ships are 19,000 TEU. And we have seen a slew of smaller 1,500 to 3,000 TEU ships that would fit quite nicely at Howard Terminal. As the market continues to grow it has one example of possible maritime use to continue to grow.

All the environmentalists, we continue to make significant strides on environmental upgrades and are in compliance with current environmental policies, working with all the agencies to achieve environmental goals. Thank you very much.

Ms. Atwell queued the following speakers: Matt Schrap, you are next and then after Matt will be Sean Farley. Go ahead, Matt.

Mr. Schrap addressed the Commission: Thank you, Commissioners, for the opportunity to comment here on the Seaport Forecast briefing. My name is Matt Schrap, I am the CEO of the Harbor Trucking Association. We are a nonprofit association representing drayage trucking companies operating throughout the West Coast. Oakland is home to several of our members.

I think one thing everyone can agree on here is that waterfront terminal property is a finite resource. As even identified by Executive Director Wan, it is in fact precious. Removing Howard Terminal from Port Priority Use will remove it forever. While forecasting may be imperfect, the problem here is what is not being discussed, which are the outside impacts of putting up a ballpark and subsequent real estate development.

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While the facility itself may be small, the impacts of removing Howard Terminal from Port Priority Use will be great, as the 84,000 jobs that are supported by the Port of Oakland will likely be moved off the waterfront as millionaire residents move into high-rise condominiums.

Furthermore, these days modern terminal use has shifted back to smaller ships. Half the vessels calling into the ports of LA and Long Beach are less than 10,000 TEUs. These ships could easily be accommodated at Howard Terminal.

There are other West Coast ports that are looking towards dedicated e-commerce service that are using smaller ships, something that removing Howard Terminal from Port Priority Use could never be realized.

Slow growth is, of course, the Port’s preferred cargo forecast since it fits with their political realities that they exist under. While we look forward to further discussions, currently there are zero seaport compatibility measures that meet with the actual tenants of the Port.

Please take these things into account when you make these decisions over the next few months. We look forward to more discussions and thank you again for your consideration of retaining Howard Terminal for Port Priority Use. Thank you.


Sean Farley, go ahead and unmute yourself, you have two minutes.

Mr. Farley commented: Good evening. Excuse me. Good afternoon, Commissioners. My name is Sean Farley. I am the President of ILWU Local 34, represents the marine clerks in all of the San Francisco Bay Area including Sacramento and Stockton.

I do find it somewhat gross that the Port of Oakland got almost 20 minutes of time and I am now cut back to 2 because of the amount of time usage they have.

I do not have time to address the numerous mistakes that the Port has done in terms of managing the Port of Oakland.

Them putting in a marine terminal at 22 and making it an aggregate dock is a humongous mistake. The one thing nobody is talking about is the depth. We are not going to have more depth. It is 50 feet on that side and you are going to put in little tiny ships over in that 50 foot depth instead of leaving them out in Richmond where they belong. It is 42 on the depth over at Howard. Where are we going?

It took a lot of effort by the Congressman Barbara Lee, I, Melvin MacKay and others to get the Army Corps of Engineers to put in and dig out the rest of that deep water. That is not going to be easy to replicate and it is going to have a serious, serious impact for the BCDC.

So, you know, the Port of Oakland is a container terminal. That is what it is. It should not be anything else. That is what it needs to be because there is nowhere else for that work to go. There is not enough depth in San Francisco to run containers. They could not take the Tecumseh up on a regular basis over at Pier 8, which is why it went to autos.

I have got eight seconds but a lot more to say and I should have that opportunity. It is very sad that I don’t.

Ms. Atwell announced the next speaker: Thank you, sir.

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Steve Rothberg, go ahead and unmute yourself. State your name for the record and you have two minutes.

Mr. Rothberg spoke: Thank you. Can you hear me?

Ms. Atwell noted: You are echoing. Do you have a phone or something that maybe you can mute? Uh—oh I think I just lost him. Okay - all right, I am going to go to the West Oakland Cultural Action Center. Go ahead and unmute yourself. State your name for the record and you have two minutes.

Mr. Peters commented: Hi, my name is David Peters. I am the Board President of the West Oakland Cultural Action Network.

I wonder how many, how many Commissioners live and breathe the air and navigate the traffic and recreate in West Oakland? I am not quite sure if any of you actually live in the community that I am a third generation resident of.

I want to point out one potential technical flaw in the Cargo Forecast. In reviewing Schnitzer Steel’s latest S10 K and 10 Q SEC filings they point out that they may not be able to continue to operate in California as a result of the DTSC’s ruling requiring them to stop emitting microscopic, shredded metal particulate matter and I wonder if Tioga has considered the acquisition of that property by the Port as water access for the Roundhouse property and additional potential acreage for maritime usage?

If that current context has not been considered I would suggest that be considered and the Report revised in light of real life circumstances.

A comment from previous. Commissioner, excuse me if I mangle your name, Hasz, you made a comment previously that your personal business was developing I believe shopping centers for small businesses and you were concerned that if Howard Terminal was taken out of usage that may have a negative financial impact on your business. And I wonder, and I applaud you for disclosing that, I wonder then if you are conflicted and should recuse yourself.

I think Commissioner McGrath last summer made the most germane comment. You have a duty not to needlessly take property out of use and make it unavailable to the local community. We must consider the lack of investment in West Oakland for generations. The opportunity to have private investment in this community along with the community benefits that the Port has never given us.

Ms. Atwell moved on: Thank you, sir.

Mr. Peters added: An inadequate amount of time. Not enough time for the comment.

Ms. Atwell acknowledged: Thank you.

Okay, Bernice Jimenez Creager, go ahead, unmute yourself and you have two minutes.

Ms. Jimenez Creager addressed the Commission: Good afternoon, Commissioners. Bernice Jimenez Creager, Director of Government and Public Affairs for the California Trucking Association and I am calling on behalf of our members that utilize the Port on a regular basis.

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As the Tioga presentation stated, the Cargo Forecast does not show room for expansion in 2050 and as such we join the Harbor Trucking Association and others in our appeal that the Howard Terminal must remain under Port Priority Use. As the historic supply chain congestion experienced in the last two years demonstrated, micro-disruptions cannot always be forecasted.

At a time when federal, state and local leaders are working with ports, local governments and communities across the state to do the opposite and identify areas to help ease congestion, decommissioning Howard Terminal as a Priority Use Area Designation is shortsighted at best and counterintuitive to the overall efforts to move California’s supply chain towards a more efficient and effective future at worst.

For these reasons I join others on this meeting in requesting that this body continue to retain Howard Terminal’s Priority Use Area Designation and look forward to continue working with this body to address the needs of not only this port but all the ports.

Ms. Atwell acknowledged and called the next speaker: Thank you.

Emily Loper, go ahead, unmute yourself, yourself. You have two minutes.

Ms. Loper gave public comment: Hi, good afternoon, Commissioners, Emily Loper with Bay Area Council. We are strong supporters of this project that will transform the Oakland waterfront at a site that is not needed for maritime operations right now or in the future.

The project is not just about a ballpark, it is about an opportunity to invest in an area that will bring new economic activity, desperately needed housing and investments that will reconnect Oakland residents like me to our waterfront.

Recent data from our Economic Institute found that this project will actually provide over $7 billion in economic benefit to the city of Oakland in the first decade and the environmental benefits are also impressive. It will create a new public shoreline park at a site that currently has no public access. It will adapt the area for sea level rise. It will actually remove fill from the Bay to expand the turning basin and it will provide air quality benefits related to the transit-oriented development.

So besides the merits of the project itself, which I know you are not reviewing today, the Port has made it very clear that the project will not infringe on its ability to grow Port operations and in fact the Port prefers to grow in other areas of the property.

The Port has extra capacity to handle cargo growth on existing available land that is more accessible to both warehousing and rail than this Howard Terminal site.

The project is a better use for a site where the Port can fulfill its public and tideland trust obligations, which in addition to international commerce also include economic vibrancy, jobs, public access and environmental stewardship and this project clearly addresses all of those three. We urge you to remove the Port Priority Use Area Designation to allow this project to move forward when it comes up for a vote. Thank you very much.


Evey Hwang, you are next. Go ahead and unmute yourself, you have two minutes.

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Ms. Hwang spoke: Hello, my name is Evey Hwang, President of Customs Brokers and Forwarders Association of Northern California. I represent users of the Port, import and export, and view Oakland as essential as a regional global port and I am here to support maritime business and sustainability for the long-term.

We do not want to be shortsighted and lose 25 acres at Howard Terminal for short-term and not look in the long-term of what the Port will need.

From the last meeting I found it very valuable to learn from BCDC that they would rather keep land that is currently available for maritime and not to use, look into unfilled land for future use. I thought that was very significant that that is the BCDC’s responsibility, looking at what is sustainable, current maritime use and on maritime land should be kept.

I really find it very disturbing that the Port should be working to grow the Port for maritime use and not be shortsighted to see what is for a short-term, short gain of giving over to a retail use of maritime land when they should be growing the Port and not to do what I find as self-serving for the glamour of a ballpark on land for the building. Thank you.


Melvin MacKay, you are next. Go ahead and unmute yourself, you have two minutes.

Mr. MacKay spoke: Thank you. My name is Melvin MacKay. I have been working on the ports over 30 years. One of the things I see appalling is the Port of Oakland does not want to see growth, which we have maintained.

We worked through this pandemic; we lost over 900 members to COVID. And if you guys would just take a little time to go on Google you guys would find out that we have moved more cargo in the city of Oakland in the last 5 years than they have in the last 88 years.

And I am going to start back to January 13, 2015. The Port of Oakland breaks cargo records in the Bay Area. The Port of Oakland import cargo hits a new record high in 2021 during the pandemic. In May of 2021 the Port of Oakland reaches a milestone in April by setting all-time records. I do not see how we can do that if we shrink our footprint.

And I heard Danny Wan speak about the Port of Antioch. We have not worked Antioch in 40 years. I do not know where we are getting that, where he wants to shift and move where cargo should be going.

When ag asked to use Howard Terminal it was granted. They got 25 acres to move cargo over there for the agriculture. Right now you have PCMC, Pacific Crane Maintenance Company, over there doing cargo and containers at Howard Terminal. If that was not a viable terminal to use for labor, I do not understand what is going on.

And why are we bidding for a port that is under Tide Land Trust. The BCDC has a fiduciary duty to maintain ports all over, not just in Oakland.

But what is going on here is a bait and switch with the Tioga Group of their forecast of what is going to happen in 28 years. We are talking about the here and now today, what is going on today. Howard Terminal means that much to the ILWU, the shippers and the truckers and I believe that is what we should be doing to maintain the property that we have today. Thank you.

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Ms. Atwell announced the next speaker: Thank you.

Moto G Stylus, go ahead and unmute yourself. State your name for the record, please, and you have two minutes.

Jay addressed the Commission: My name is Jay. I want to draw the attention of whatever, whoever is supposed to be the attorney supervising this meeting. There was no presentation by Danny Wan in the Agenda. There were no documents presented by Danny Wan in the Agenda. I think this is reason, besides being an actual Brown Act violation, which it seems to be, it is important because you apparently scheduled this brief so that you could have a report to look at that has citations, that is well-researched and that has, that you spent a lot of money on to actually have a bead on what is going on. I think it is very odd to bring in someone talking off the cuff and presenting slides the public could not see and giving information that could not be verified because it is not in the packet.

You know, Mr. Wan has also gone on to take out an op-ed in the East Bay Times. And it is just another example of like, you know, Danny Wan is the Director of the Port, he can put out an informational report on all of this with citations with projections with all the data.

And in fact, if I am not mistaken, what he needs to do for BCDC to maintain this, to remove the Port Priority is present an agreement that shows, a written agreement, executed agreement that shows that what Mr. Wan is saying is true and that there will be space for whatever growth scenario.

So I do think that Mr. Wasserman exceeded his privilege and committed a Brown Act violation and I hope that the supervising attorney of this Agency can look into that, if not other bodies who investigate this. Thank you.


S. Garcia, you are next, go ahead and unmute yourself. State your name for the record.

Mr. Garcia commented: Oh, hi, how you guys doing today? Thank you, thank you so much for, for having me. Danny Wan and the Tioga Group presented a great presentation. I mean, it goes to show you that, you know, there is acreage, there is land provided to remove trucks and containers.

And as the BCDC group, I mean, as a group, you know, why have a Port Director at the Port of Oakland if you do not take his account for consideration, you know? Even if you think you know that, you know — if you think you know what is in Oakland’s best interest.

And again, you know, and you know, again, nobody has really addressed Schnitzer Steel about how, you know, their toxins and, you know, particulates is polluting all of West Oakland, you know.

I mean, this is an opportunity for Oakland residents to, you know, get the waterfront that, you know, that they would always love to come down and, and enjoy and spend with their families, you know. This is not a billionaire private real estate development project like people like to claim or like the media likes to put out and, you know, drag down on this project.

So, you know, continue you guys, you guys should really consider moving forward with this project and removing Port Priority Use. Thank you.

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Ms. Atwell acknowledged: Thank you.

Mike Jacob, you are next. Go ahead and unmute yourself.

Mr. Jacob spoke: Hi, good afternoon, Commissioners. Mike Jacob with the Pacific Merchant Shipping Association, we represent ocean carriers, marine terminal operators operating at the Port of Oakland and on the US West Coast. We are headquartered at Jack London Square in Oakland.

Just first off we would like to commend BCDC staff and Dan Smith of Tioga Group and Hackett Associates for the work that they have done on the Forecast.

We find the Cargo Forecast to be compelling, consistent with most methodologies that we would consider to be reliable and customary and ordinary in long-term growth forecasts that we have seen used for decades.

The Tioga Group and Hackett Associates have worked with BCDC before in producing a report. It is an objective report. It is arm’s length. It is done by a third-party who has contracted with BCDC.

As you know, the SPAC has reviewed these. They adopted this Report. Where is the applicant here? You have not heard from the A’s. And that is because their alternative, and they, again, carry the burden under BCDC rules to convince you of what facts should be used.

Their consultant Mercator had presented that to SPAC; it was unanimously rejected by the Commission, by the Committee. The Report that you have seen in front of you now is the Report that needs to be used. It is comprehensive and we endorse it.

We will be submitting numerous comments both on the Report and in response to the Staff Recommendation. Obviously, two minutes is not enough time to represent all of that. But this is a very important decision. We commend the staff again, for going out of its way to ensure that whatever decision is made it is going to be based on facts. It is going to be based on a projection based on those facts and that projection by the Tioga Report is comprehensive. Thank you.

Ms. Atwell recognized the next speaker: Thank you.

Beau Logo, you are next. Go ahead and unmute yourself, you have two minutes.

Mr. Logo spoke: Hi, my name is Beau Logo, I am with the ILWU. At this time, at this time the terminals are pushed to capacity and the ships are being delayed because of congestion as well as there has already been expansion into what was vacant land.

Like somebody previously said PCMC is already at Howard Terminal making use of that land for maritime use and I believe if we continue on the path it is certain that we will not have the available space to perform maritime use. That is basically what I have to say and thank you for your time.

Ms. Atwell continued: Thank you very much.

Francisco Castillo. Go ahead, unmute yourself and state your name for the record.

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Mr. Castillo commented: Good afternoon, Commissioners. My name is Francisco Castillo, Senior Director of Public Affairs for Union Pacific Railroad. Just by way of background, UP has two key facilities near the Port of Oakland, the Oakland Intermodal Terminal and the West Oakland Railyard, that is our manifest yard. Both are off of the UP Niles subdivision, which is a busy corridor. We have about 30 or 40 freight trains per day that serve the Port of Oakland and regional freight rail for customers. We also have an Amtrak and Capitol Corridor passenger trains that operate on these same UP tracks.

You heard earlier, you know, under the Cargo Forecast commissioned in 2019 and that was presented today, it is clear that under all future scenarios that Howard Terminal was needed to meet cargo capacity. And as demonstrated in previous meetings before, BCDC staff and SPAC expressed its full support of the Report’s findings.

We are also in a period where the supply chain is congested due to the historically high demands globally and as a result every other port in the country has been looking to maximize land available for maritime and support functions and we urge BCDC to look at ways to increase port land, including keeping Howard Terminal to support maritime operation.

And so we hope that at your June meeting we urge you to uphold SPAC’s recommendation to retain Howard Terminal’s Port Priority Use Area Designation and reject any chances that give away prime port property and put this project back in the context of the original planning process and the ongoing efforts to update the Seaport Plan. Appreciate your time. Thank you.

Ms. Atwell called for the next speaker: Thank you. Okay, James W, go ahead. Unmute yourself, state your name for the record.

Mr. Winterbottom commented: Hi, my name is James Winterbottom. I am an Oakland resident. I have no experience with ports or shipping but I do have a lot of experience with statistical modeling and forecasting.

Quite frankly, what Tioga Group presented really is not a forecast; it is just three possible scenarios, but really lacks any statistical analysis or probabilistic analysis into how likely these scenarios are.

So it is basically like me predicting the weather for tomorrow and saying it could be 90 degrees, it could be 70 degrees, it could be 40 degrees; and then making a decision as if each of those possibilities were just as likely.

Tioga Group has not meaningfully attempted to answer the question, how likely is the high growth scenario? Or ultimately, how likely will Howard Terminal be needed for cargo?

Ideally, these questions would have been answered in the analysis but unfortunately they weren’t. More unfortunately, any further delay for further analysis would quite simply kill the ballpark development project.

Because of that I would urge the Board to update the Bay Plan to remove the Priority Use Designation for Howard Terminal. This is a transformative project and the city of Oakland should be deciding whether it is best for the City.

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BCDC should not be shutting it down based on the reasoning that there is some chance we might need that space for something else at some time in the next 30 years. It is just quite simply not strong enough reasoning. Thank you very much.


Dave Connolly, you are next and after Dave will be Eli Toney. Dave, go ahead and unmute yourself, you have two minutes.

Mr. Connolly spoke: Thank you. Dave Connolly with the Sailors’ Union of the Pacific. I appreciate the attempt to forecast a difficult economic scenario, or three of them, and I understand some of the statistical problems there.

I appreciate the attempt to be quite comprehensive but I find problems in those, in the findings that flow from the projections and basically I think they are all too low.

From my analysis and my experience it looks like it is based on only what is measurable, what is it apparently, obviously, measurable. It is very difficult to measure an absence, like a blank sailing. There is a mention of that in one of the slides but not, it is not, it is not handled very, in a detailed way.

The blank sailing is when ships skip the port and they are skipping the port because of congestion or because of delays or because there is more money in getting back to China as quickly as possible. I think that is a, that is a, that is not just a tweaked problem, a small problem — I think it is a structural flaw in the projection.

If you are able to attract cargo then, you know, those numbers begin to really take off. Just like the first bump analysis does, they have a compounding effect. And that is how, that is how capacity should be measured in terms of, in terms of flows that, you know, that can be quantified and can be, can be expected, not just ones that are crossing, you know, crossing the bar and coming into the Port. How much is not being measured?

This Port of Oakland is a jewel. We seem to have a Port of Oakland administration that is more interested in real estate operations and that is to the detriment of the jobs. Thank you.

Ms. Atwell moved on: Thank you, sir. Thank you.

Eli Toney, you are next, go ahead, unmute yourself. You have two minutes.

Mr. Toney commented: Hello, my name is Eli Toney. My comments will be brief and to the point.

If the Port of Oakland says that Howard Terminal is not going to be useful land for them and that they feel that it is not suitable for cargo operations, especially for container operations, which, as was stated earlier this meeting, are the primary operations at the Port of Oakland, then it seems presumptuous, perhaps even arrogant, to argue that the Port of Oakland is wrong, that they do not know what is best for themselves and for their own internal operation.

I understand that this is an emotional subject. I understand that. The Port is a major driver for the region, for the city of Oakland and for Northern California.

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But to assume that the Port of Oakland does not know what is within its best interests, or that the Port of Oakland is somehow acting in a corrupt or unreasonable manner when they say that Howard Terminal is not suitable and is not needed for container cargo operations and that they believe that high growth estimates are unlikely at best, if not almost entirely impossible to emerge. It just, again, I would say it makes the absolute sense to listen to what the Port is saying. To understand that they know their business because they have been in it from the day they were born and they would be best suited more than any of the public speakers here, regardless of who they are and certainly more than any other party, to determine what is best for their business, for their operation, and for their long-term stability, growth and operations to benefit the region. Thank you.

Ms. Atwell called for the next speaker: Thank you.

David Lewis, go ahead, unmute yourself. You have two minutes.

Mr. Lewis addressed the Commission: Thanks very much, Commissioners. David Lewis, Executive Director at Save the Bay.

Appreciate Chair Wasserman’s underscoring at the beginning of the meeting that the focus of this item is on the viability of the Cargo Forecast.

I am proud that I was able to serve as a member for the last several years on the Seaport Planning Advisory Committee. The staff and consultants did an excellent job of developing this forecast and that is why the Committee voted in May unanimously to adopt the Cargo Forecast.

I asked the staff in March whether any state or federal agencies, ports, interest groups or others subsequently had asked BCDC or the SPAC to revise that Cargo Forecast and the answer was no at that time.

I believe the Tioga presentation today did underscore that although these are just forecasts, that is why it is important to heed the comments about the current uses of Howard Terminal and the current and imminent demand for the use of Howard in context, in addition to the Cargo Forecast itself; and especially the limited or non-existent availability of other acreage to provide the capacity that Howard is now and could in the future provide should it be removed from Port Priority Use Area.

And so the last thing I want to underscore is that the BCDC staff had repeatedly asked the Port of Oakland for information over the last several years about their plans for alternative locations in the region, on their property or elsewhere, that could handle additional port services, including ancillary cargo services and uses if Howard Terminal were removed from the Port Priority Use Area.

And this is very important as the SPAC Committee Chair, Commissioner McGrath was very articulate in March in flagging the risk and challenge of insufficient cargo capacity in the future creating pressure for new Bay fill that would be difficult to approve.

And so I asked BCDC staff again at the SPAC meeting in March whether the Port had provided, as the Commission’s Seaport Plan policies require, a specific and enforceable proposal to offset the loss of Howard Terminal in other locations, including three specific possibilities, comparable cargo terminal.

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Ms. Atwell continued: Thank you, Mr. Lewis. Thank you.

Savlan Hauser, go ahead and unmute yourself, you have two minutes. Savlan Hauser, go ahead and unmute yourself. Savlan, last call.

Ms. Hauser chimed in: Apologies. Thank you so much, I was having a bit of trouble unmuting after all that time. Savlan Hauser, I am the Executive Director of the Jack London Improvement District. We are a community benefit district and also I have been participating in the Howard Terminal development as a Steering Committee Member. From starting about 2018 I am involved through community engagement.

I just want to applaud that process as really a precedent-setting process for a project that is going to be so transformative and so important for Oakland moving so many preexisting goals forward. This is an unprecedented investment for our waterfront district and will really forward a lot of (audio faded out).

Ms. Atwell noted: We are having a hard time hearing you. Savlan? Savlan, we are having a hard time hearing you. Savlan, we cannot hear you. We heard the first part but we cannot hear the second part. Can you speak up louder?

Okay, Savlan, thank you.

Chair Wasserman, everyone has had the opportunity to speak. Thank you.

Chair Wasserman acknowledged: Thank you, Peggy. Thank you to all the speakers.

Ms. Atwell interjected: Hold on, one more, William F. Dow. William F. Dow, go ahead.

Mr. Dow asked: Yes. Can you hear me?

Ms. Atwell replied: Yes.

Mr. Dow: Okay. My name, my name is William F. Dow, or Bill Dow, with Local 6 ILWU, the Warehouse Union.

We are in favor of keeping Port Priority Use at Howard Terminal, you can be aware of that. I have a saying that I go along with quite often. I have spoken to you people before. The maritime industry needs the water’s edge and a ballpark can be put anyplace. You know, don’t give away Port Priority Use for a real estate development that could endanger right on down the line.

I have said this before, I will say it again. If you give real estate development the area they are going to look to see what they can get further on down the line and you are endangering the maritime industry in the area.

So I urge you Commissioners to go along with your Port Advisory Committee and reject the A’s proposal to take that off of Port Priority Use. Thank you very much.


Okay, our last person will be Melody Davis. Melody, go ahead and unmute yourself. Go ahead, Melody. Melody? Unmute yourself. I’ll wait a little bit in case she is having trouble. Last call, Melody Davis, go ahead and unmute yourself. (No response from speaker)

Okay, Chair. Everyone else has had at least one opportunity to speak, thank you.

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Chair Wasserman acknowledged: Again, thank you to all the public speakers.

That brings us to Commissioner questions and comments. Commissioner Gioia, go ahead.

Commissioner Gioia commented: Thank you. Let me start by saying appreciate the presentation and everyone who spoke. And I want to make really clear, right, while this is connected to the Howard Terminal issue this is really about understanding this Cargo Report, which I want to stress was done in 2020.

And to really ensure that as the world has changed and some things have changed since 2020, that we are getting the best information about future cargo trends. So I want to start maybe with a more specific question and then get to some more broad ones.

I used to serve on the California Air Resources Board and followed the whole world of electric vehicles, Tesla, talking automakers. And one of the areas that I want to get more clarification on is this element of export on Ro-Ro autos.

A number of years ago Congressman DeSaulnier when he was in the State Senate, and I, had a chance to meet with Elon Musk at his Fremont plant a number of years ago, in which he had this grand vision to say yes, we are going to make, we are going to build a plant in China to serve the Chinese market and we want to manufacture more here in Fremont. This is before he built other plants.

Let’s fast forward to where we are today. Three important things have happened since this Report came out. There are plants in Berlin and Texas, which did not exist before. And just as importantly, the capacity of the plant in China has doubled and Tesla has announced that China will now be its main export hub, which means that ultimately Fremont is not going to really be a major exporter of cars. In fact, at the time we spoke to him he said, our Chinese plant will only make cars for China. That has changed.

So I want to understand to the extent the Ro-Ro analysis includes export, and this is separate and apart from the trends that happened during the pandemic. These are very specific, multibillion dollar investments by Tesla and announcements by Tesla about what it intends to do.

So it seems to me that relying on the state of the world in 2020 about exports is like thinking about phones, our phone world before cell phones. So can someone either from BCDC or the consultant who put this together address that change and how we would look at our estimate based on those three major factors that happened since this Report was published?

Mr. Smith asked: Staff would you like me to address that?

Mr. Buehmann answered: Yes, please.

Mr. Smith explained: It is discussed on page 150 of our Report. It says: “As of September 2019, Tesla is constructing an assembly plant in China,” and so forth. By tapering off Tesla’s growth we tried to reflect the fact that they were not going to grow nearly as fast as they had before. To the best of my knowledge and Mr. Coleman from the Port of San Francisco can verify — they are still exporting through San Francisco. Not as much as they did prior to the pandemic because, of course, Tesla was hurt by the production cuts.

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But, in fact, we did anticipate the development of production facilities for Tesla in other countries and that was taken into account in tapering off their growth rate.

It is worth pointing out that that does not necessarily mean that exports will not continue or will not grow. Toyota, Subaru, Nissan, Honda, all have assembly plants in the US, yet they continue to import specific models and specific configurations.

Commissioner Gioia continued his inquiry: Can I follow up on that because there were some assumptions about ramping down growth in it for a few years and then increasing it. What were the specific assumptions you used with regard to considering Tesla’s growth? You assumed they were going to build other production facilities abroad and that is correct, that happened. But you did not assume that China would be announced as their major export hub. There was no way you would know that in 2019 and 2020 because it was only announced in the last year.

So what specifically are your assumptions? I want to understand more about the numbers. I do not want to just look at it vaguely and ambiguously. I want to understand. Because these numbers all are important, right? And since Ro-Ro has now been identified as a major issue I want to understand the assumptions, the specific growth assumptions, both short-term and long-term.

And then the second point of that, all those other car manufacturers are plants, as I understand it, east of the Mississippi. Are you assuming in the future, you are predicting that those exports will come out of the West Coast and not by ports closer to where those plants are located?

Mr. Smith replied: I was not talking about exports at all for those models. Commissioner Gioia acknowledged: Okay, right, got it. No, no, I get it. I understand

imports are a very different issue and there will be growth of imports. I totally understand that. I am focusing now on export, right, because the only exporter now is Tesla and export is

part of your projections. So I want to understand the assumptions on the export? Mr. Smith asked: Do you want me to open up the spreadsheet and show you the

numbers? Commissioner Gioia replied: Yes, because this is a really important point because it gets

to how you calculate the low, moderate, and high scenarios. Mr. Smith stated: Okay, that will take a few minutes. Commissioner Gioia continued: While you are doing that let me just make a general

comment. I appreciate, I know Brian Beveridge from the West Oakland Indicators Project, who I know is very involved with Air District issues, made a comment about environmental justice. I just want to note, I think this Cargo Report, which is very quantitative, does not get into the environmental justice issues of where you do port expansions to meet future growth. Obviously, there is an environmental review CEQA process that has to go forward to do that.

And I do find, this is really a broader comment since we are just dealing with a cargo report here, is that it seems to me it is one thing to have projections about the need for additional terminals and to handle cargo growth. It is another when you start showing just generally where the available plots of land are, totally separate and apart from what the pollution impacts mean to the surrounding communities.

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And West Oakland has already had some of the highest rates of asthma in the Bay Area. An ongoing issue, right, pollution comes from the Port. I understand there will be electrification of trucks and all that in the future.

But it is interesting that the discussion on any of these sites sort of leaves out the impact of pollution on people. I just want to note that.

To have port directors wherever they are sort of move around communities on a chessboard by, here is where we should put stuff, without understanding the impacts on people. And I raise that because, frankly, expansion of Port uses at Oakland, given the proximity to communities, has a major impact on communities around the Port, as we know, and having served on the Air District, having seen that. Anyway, I just want to point that out.

So getting to your numbers. And also while you are doing that, I know the Port director mentioned Benicia and Antioch. Was Antioch looked at for potential Ro-Ro or other kinds of Port uses? It is private, right, but were they looked at?

Mr. Smith replied: Antioch was addressed in the Report explicitly. Antioch was not included in the capacity for two reasons. Well, for the basic reason that it is not within Port Priority Use and therefore we cannot guarantee that it would be available through the forecast horizon. Basically, if the owners decide to build condos there, they can. And we checked with the owners on that basis.

Commissioner Gioia acknowledged: Right.

Mr. Smith continued: So here. This is a little awkward because of the spreadsheets. Okay, that is the export auto forecast. So you can see what was happening with the Tesla exports. And you can see our working assumption that they would continue but they would grow much more slowly. So that is the assumption.

Commissioner Gioia interjected: I am sorry. So the export, the light green line is the strong and then you have the moderate, right?

Mr. Smith agreed: Right.

Commissioner Gioia continued: And then you have the yellow. So that is what you show in 2019.

So the question is, if Tesla is not going to be exporting anymore out of Fremont, or minimally more, I do not know where you get the export strong or even the export moderate, given that they are not really going to be using Fremont as a major export hub.

So you may have lowered it but it is still. Again, if China is their main export hub and they have got plants in Texas and Germany, where are the cars out of Fremont going to?

Mr. Smith explained: Well, first of all, this projection was made in 2019 and of course, as you say, we did not have all of what Tesla planned.

Commissioner Gioia acknowledged: Right. So my point is that this is not accurate today. I think we get caught up by studies that were done early, when there’s been major changes. Because we are all looking at low, medium, high.

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The high is clearly, clearly wrong. And the moderate is probably clearly wrong because the world has changed in Tesla’s own announcements since those projections were made. So how can you defend those given that the world has changed in terms of Tesla’s announcements on what they are going to do?

Mr. Smith asked: Now, did you actually want to see the numbers we used?

Commissioner Gioia responded: Yes. No, no, that’s fine, but I am looking at this chart. I do but I assume this graph represents. Do you have the numbers on this scale? That is what I assume you are showing. If that is a projection that graph has a numeric equivalent on it.

Mr. Smith concurred: Yes. And did you want to see those?

Commissioner Gioia replied: Yes. Yes.

Mr. Smith continued: Okay. Okay, I am going to need to change the share.

Commissioner Gioia replied: Got it.

Mr. Smith continued: Okay. This is the export column here. This is the percentage growth. So you can see what was happening in this period. This is when Tesla was going through the roof.

You can see what we did is we intentionally tapered that off to a growth of what they had at 430 percent here to less than 1 percent there. Now, we did not decide where those cars would be coming from. As I said, as far as I know, and I think Andre Coleman from Port of San Francisco is on the call, I believe Tesla is still exporting through the Port of San Francisco.

Now, if we want to look at the low forecast that is this column here. You can see that cuts it still further.

Commissioner Gioia stated: Yes, I know the low forecast looks reasonable, yes.

Mr. Smith noted: Now, we did not necessarily say these are Teslas. We did not assume that Tesla would be the only export market for the next 30 years. At current they are Teslas.

There have been exports of other cars in the past. We have other electric car makers. So this is not just a Tesla scenario. This is a scenario that reflects what we knew about Tesla and how we believed a reasonable assumption was for Tesla’s diminishing growth but this is not a Tesla forecast.

Commissioner Gioia asked: What are the numbers for the moderate and strong growth, what are the columns?

Mr. Smith answered: This is the moderate.

Commissioner Gioia acknowledged: Got it.

Mr. Smith continued: This is the low.

Commissioner Gioia stated: Got it.

Mr. Smith added: And this is the strong.

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Commissioner Gioia reiterated: Got it. So realistically it seems that if we were trying to predict the future on this it could be on the low or moderate end but not on the high end and more likely the low end. But you are assuming other than Tesla that there’s really no other manufacturers west of the Mississippi.

Mr. Smith explained: No, we were not assuming anything. We were allowing for export growth based on what we knew about exports so far. None of this, none of this is brand-specific, because that is far too speculative.

Commissioner Gioia stated: Right. I think even these numbers are pretty speculative because you do not have any information from any existing manufacturers other than Tesla.

Mr. Smith noted: We have existing, we have numbers on all the previous exports and this is the basis of the forecast right here. So this is how we did the forecast.

Chair Wasserman interjected: This is an important issue, but it is only one of many important issues and I think we need to move on from it.

Commissioner Gioia acknowledged: Yes, I think this is fine. This is helpful, Zack, I appreciate this. I do not have anything further. I wanted this discussed because I think that it gives a sense of realism to how we understand that. Okay, so I appreciate that. And then the only other issue is I just wanted to raise the environmental justice issue, so thanks.

Chair Wasserman recognized Commissioner Butt: Thank you, John. Commissioner Butt.

Commissioner Butt had questions: I had a couple of questions. They may be blips in the big picture but one of them has to do with the Benicia Terminal.

As far as I know they only have one big pier there and it burned down and the news stories on it were that it could result in a significant disruption for some period of time to port operations around the Bay Area. I just wondered if you have any comment on that?

The second one has to do with an operation in my city of Richmond. In the Draft Cargo Forecast there were several tables and statistics talking about transit Levin Terminal for exporting coal and pet coke and due to settlement of litigation that is all going away in the next four years or so. I just wondered if that has any effect on the overall forecast.

I do not know whether you have answers for either of those right now but I think it seems like they both should be recognized in the ongoing consideration.

Mr. Mann chimed in: Dan, I would be happy to answer the first question and, Dan, maybe you can take the second.

Mr. Smith agreed: Yes, I because I have not talked and found out what they plan on doing with the fire yet.

Mr. Mann stated: We did have a call with the Port of Benicia just earlier this week. They indicated that the fire had affected Ro-Ro operations temporarily, mostly in terms of scheduling. So they are having to make scheduling adjustments due to some constraints that they were having at the berth, but they did not anticipate it to affect Ro-Ro operations in the medium or long-term.

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Mr. Smith continued: On Levin Terminal. In the forecast we looked at the outlook for pet coke and coal and both the outlook for pet coke is basically flat because it is an unavoidable byproduct of Bay Area oil refining.

They produce pet coke whether they like it or not. It is possible that that might be diverted to, ironically, to Benicia if Benicia gets that terminal back in operation. So the pet coke itself may or may not go away.

Commissioner Gioia interjected: Yes it will. They are closing it.

Mr. Smith added: It will go away from Richmond but I do not know that it is going to go away from the Bay Area as a total.

Commissioner Gioia explained: It comes from a facility in Rodeo that the County has before it an application to close that refinery and convert it to renewable fuels and there will be no more pet coke.

Mr. Smith acknowledged: Thank you.

Chair Wasserman added: I think that is a sufficient answer for the moment. I am going to recognize Commissioner Pemberton.

Commissioner Pemberton spoke: Thank you, Chair Wasserman. (Significant echo sounds interrupted Commissioner Pemberton’s transmission)

Chair Wasserman: Sheri, I will come back to you. I am going to recognize Commissioner McGrath.

Commissioner McGrath commented: First of all, I want to thank the public for the comments, they were substantive and I appreciate that. I found Dan Smith’s update comprehensive. I was also impressed by both Danny Wan’s information on Ro-Ro and Susan Ransom’s on congestion and I would like the staff to try to rationalize those things and provide some of the answers that have been asked for today.

I have got about six important points but I want to give you just a little bit of my background. I worked for the Port for 16 years. I have been gone from the Port, retired for 16 years, but I got the entitlements for many of those terminals.

We called it the Vision 2000; Dan Smith called it the OICT. We knew that was going to add a huge amount of capacity at the Port.

I also got the entitlements for the Joint Intermodal Terminal, which provides rail service and for the TraPac Terminal.

I also helped negotiate with Will Travis the disposition of the Oakland Army Base when it closed so that it was divided between the Port of Oakland and the City of Oakland in ways that would prevent fill over the long-term.

I want to go back and stress a couple of very important points about our considerations and what they mean and the role both of smaller ships and congestion.

First of all, the existing Bay Plan Amendment does not make some magic arrangement that there is a date for capacity analysis and we do not have to think beyond that. There is nothing magic about 2050, it has been used.

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Second, there is an important point that I think bears repeating and this comes from page 33 of the March 4th Staff Report to the SPAC which was the note that there is an August peaking factor of 8.4 percent. So the idea that there is capacity but just barely at maybe 98 percent without Howard Terminal ignores that and what impact on congestion that might have. Also on page 33 of that Report, without Howard and cargo growth you are at 98 percent capacity.

Page 7 of the March 4th Report, it makes the important point that I think at some point we have to think about efficiency and congestion. It says specifically other uses are permissible only if they do not significantly impair the efficient utilization of the land. This goes to, I think, the thing that we are going to have to struggle with which is how much capacity we provide for Ro-Ro, how good are the numbers.

One of the things that I did note in both the press coverage of what has happened to the supply chain demand and what its impact has been on shipping is that the lack of ships has really suppressed a lot of cargo types, not just cars.

When that capacity goes up, as it will, because there is money to be made, things are going to bounce back in some ways. I found Dan Smith’s presentation on that comprehensive.

Going back to Dan’s comment, as he said, Ro-Ro needs 160 acres. Maybe it is less than that. But let’s look at that.

And then finally, this is an important point. All of this has been predicated on the idea that somehow we are going to have a magically really efficient shipping system and they are all going to be these giant ships.

When I was sitting at the Port of Oakland trying to figure out how much money I could use most efficiently to mitigate the air quality impacts and deal with the environmental justice issues, which were very real and very important to me and to the Port at the time, I sat there with spreadsheets covering all 2,000 annual port calls trying to figure out what ships stayed long enough at the Port that we could plan to electrify them, what kind of money that would take and how efficient it would be and whether or not you should try to electrify everything. Not everything was a big ship.

Now we are at 16 years later and I want to remind you of what happened last week when the Wan Hai lost power in Marin County and dragged ashore. That ship was built in 2016. That was not an old ship. It was not something that technology has bypassed. Its capacity was 1,700 TEUs. It is 172 meters long. So in thinking about this magical efficient system in 2050, maybe ships like the Wan Hai will not be useful, but maybe they will.

Those are the things we are going to have to grapple with in staying in our lane, which is only with cargo forecasts that we have confidence in and maybe some safety factor on. Are we sure that we can release something and not have additional Bay fill; because that is all our lane is. It is not environmental justice. It is not access to the water. It is just, are we are going to take an action that is going to protect the Bay from fill that could have been prevented?

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Commissioner Eklund commented: Thank you very much, Chair, I really appreciate that. First of all, Dan, I wanted to thank you very much for your very comprehensive report and I wanted to thank staff for doing all the memos trying to help us to understand this. I need to preface my questions based on, I do not know much about cargo movement.

What I read in the Cargo Forecast was a lot of detail about the ports in San Francisco Bay. But do the changes in the other ports in California have anything to do with the effect of what might happen in the Port of Oakland? And if so, did we look at the changes in those other ports in California? I guess this is to Dan.

Mr. Smith answered: The one place where that did show up was I mentioned the potential increase of first call vessels. What we were seeing, and this is pre-pandemic, we were seeing periodic congestion in the Southern California ports.

One of the things that is leading importers to do is diversify the points at which they bring their imports into the US. There is a concomitant buildup of distribution, logistics and warehousing capacity out in the Stockton, Lathrop, Tracy area, actually extending from Woodland on the north down to Manteca on the south, because those importers are starting to treat Northern California, Central California and Western Nevada as a market separate from Southern California.

They used to bring pretty much everything in through the Ports of LA and Long Beach and into the Inland Empire and then truck it up here; instead, they now have new facilities in Northern California.

In talking to the Port and to the industry representatives there was a strong feeling that within really the 2022 to 2024 timeframe there were going to be additional vessel services calling Oakland first rather than going to Southern California first. That was going to bring what I called a bump of import volume into Oakland.

What happened, those vessels services actually started up, three of them started up in 2021, earlier than we anticipated. But because of all of the changes and the missed vessel calls and so forth during the pandemic it has been hard to nail down their impact.

The other thing that happened is that a major ecommerce company, who I cannot name, decided to also bring increased volume directly into Oakland, which started up in October of 2020. That has also put a strain, particularly on the transloading facilities and the terminals here. And they have committed, they have a multiyear contract commitment so it should extend past the pandemic.

We also did look at some of the LA/Long Beach terminals as benchmarks for the kind of productivity that can be eventually attained up in Oakland. Where we could learn from what is going on down there and where we could relate the events we did take that into account.

Commissioner Eklund continued: Since this Report was published in 2020, obviously COVID has changed our world and people are purchasing more online. Do you think that this Report reflects the future changes in our way of life, I guess across the world.

Mr. Smith responded: Yes and no. There was some consideration of the growth in ecommerce because that is one of the things that is driving those first call vessels specifically. So that was one reflection there.

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To some extent ecommerce is replacing ordinary retail sales. So we are going online instead of driving to Target. Well, the Target warehouse is in Woodland and the new ecommerce ones are in Tracy but they are both coming through the Port of Oakland. So to some extent it tends to even out but it did result in that bump in the first call vessels.

Commissioner Eklund asked: If we have some additional questions are you available for calls from us?

Mr. Smith stated: Absolutely.

Executive Director Goldzband gave the following instructions: If you have questions please get them through Cory or through me.

Commissioner Eklund acknowledged: Cory. Okay, great, thank you.

Executive Director Goldzband acknowledged: Thank you.

Commissioner Showalter was recognized: I just wondered about the inclusion of coal as an export in 2050. And maybe that was really included in the pet coke but I do not understand enough about how that works to know. Why was coal included? Why would we be still importing or exporting coal?

Mr. Smith explained: Well, the Forecast was, of course, done before that agreement to end the coal exports through Levin Richmond Terminal. The discussion was going on then.

What we did is we looked at the Annual Energy Outlook, which is produced by the US Department of Energy, and we looked at their projection for coal exports. Actually we have them declining.

Now, because that agreement was not in place back then we do not have them going to zero. If I recall, they account for, because they do decline, when we go out to 2050 I think, and this is off the top of my head, I think pet coke and coal account for maybe 3 percent of the volume when you go out to 2050. Because they are declining while things like aggregates are growing so they play a decreasing role.

The one very nice thing about having spreadsheet models is that if the staff wants to we can go and look at alternative assumptions using the same spreadsheets. I know I just signed myself up for extra work but our goal is to get this thing right.

The nice thing is, again about the spreadsheets, is you can do sensitivity analysis. You can go in there and say -what if coal goes to zero? What if export cars go to zero? We can answer those questions.

Chair Wasserman called on Commissioner Pemberton: Commissioner Pemberton has her hand up again, let’s see if it works.

Commissioner Pemberton commented: Thank you, Chair Wasserman. I just have a procedural question in terms of the Cargo Forecast and the questions about the 2020 date and if that is still applicable in 2022.

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But wasn’t the Cargo Forecast prepared specifically to inform the Commission’s determination about whether to remove the Port Priority Use Area Designation from Howard Terminal as requested by the Oakland A’s? If that is the case there had to be time to prepare the Report and have it available for the Commission to use as the basis for meeting that July deadline.

And I am just not sure, 2020 does not seem all that dated to me but what else would we use to make this determination by this July date other than this, this Forecast?

I do not know that it can be revised or changed and we have this deadline coming up. I just wanted to get clarity on that in terms of the points about, 2020 so much has changed and that is not a good date to use as a basis. What other alternatives are there for us?

Mr. Mann chimed in: I would be happy to start to answer that question.

Commissioner Pemberton stated: Maybe that is a question for the Chair.

Mr. Mann continued: Other BCDC staff should feel free to jump in. I guess as a starting point, the two related amendments to the Seaport Plan Update, BPA 1-19 and the Howard Terminal Amendment BPA 2-19 were both initiated in 2019 and at the same time the seaport forecast process was initiated to inform both amendments, so that is correct.

Getting to the point of having the Cargo Forecast kind of finalized and approved for planning purposes by the SPAC took a while through the course of three SPAC meetings and working with the ports, et cetera, to get it completed. So that was that was the intent of it.

I think you are, you are speaking to a real issue, which is we are under a legislative deadline on this Amendment and updating the Forecast, that is a challenge.

Commissioner Pemberton acknowledged: Okay, thank you.

Chair Wasserman opined: Forecasts, as we know, are speculative at is some level, obviously, as Dan has said, using the best information possible.

And part of our tough job is interpreting and adding in the things that have transpired since in our discretion but I do not think we can reasonably keep updating every year or two years and be able to make decisions. Commissioner Gioia has his hand up, I believe.

Commissioner Gioia commented: Yes, two comments. I have the utmost respect to Commissioner McGrath, but he was just flat wrong on the environmental justice issue and we need to be clear.

We passed a Bay Plan Amendment 2-17 that is an environmental justice policy. In fact, I will read some language in one of the findings: “…the Commission’s Priority Use Areas, intended to minimize the necessity for future Bay fill, has also facilitated the aggregation of pollution sources within areas designated for Port and Water-Related Industry Priority Use Areas.”

It also says that through our authority, “…the Commission has approved additional development projects to existing ports, oil and gas operations, sewage and wastewater treatment plants, and heavy industry in or near low-income communities of color around the Bay Area.” We had extensive discussion. Environmental justice is now a policy of this Commission in the Bay Plan and can be considered.

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Otherwise, if it is not it makes our whole discussion meaningless and disrespectful of the community that advocated for it. To say, oh, we don’t care about environmental justice, is just flat wrong, it is in our policy. So I just wanted to say that.

Second, two of the refineries in Contra Costa, two of the five in the Bay Area, are shifting operations. They are under permitting review now to no longer process crude and instead become the world’s two largest renewable fuel facilities where they will process soybean oil and animal fats to create renewable diesel.

There will be no longer any pet coke coming out of those facilities because it is not a byproduct. As Mayor Butt knows well, Richmond did reach an agreement about banning any coal coming through the City. So I just wanted to note those facts.

I think it just continues to suggest that the world has changed since this Report came out. And it would be, I think, irresponsible of us to rely on what we know have been changed circumstances in making any determination.

At some level that needs to get factored in. When we are told that certain things have changed we don’t then look at the language and the projections before the change and said, well, we don’t care things have changed, we are just going to still rely on that. That is irresponsible.

So I don’t know what we do but I think there is an opportunity. Maybe the staff should look at this about how do we factor in those significant changes so we are not relying on an outdated document? I am not saying it is all outdated but there are some factors that are, whenever we make any other decisions.

Chair Wasserman noted: Jessica, unless you had your hand up, which I saw for a moment, I do not see any other hands.

Ms. Fain stated: I just wanted to clarify for Commissioner Pemberton that the Staff Report which will be coming out in a few weeks on our recommendation will rely on more than just the Cargo Forecast.

We will be analyzing additional information we have received since that Forecast was completed as well as other information, our consistency and the relationship with our Bay Plan policies, other Bay Plan policies such as environmental justice and other considerations. All of that will be described in our Preliminary Staff Recommendation for your review.

Chair Wasserman acknowledged: Thank you. We are, we are close to done, I just got a couple of questions, but I think we are going to move to a committee of the whole because we are about to lose our quorum for people who have other responsibilities and I appreciate people hanging on but just for purposes of finishing conducting our business.

I thank those of you who have hung on and I know you need to leave but we will continue briefly as a committee of the whole.

Dan, you talked a little bit about the reason for not including Antioch, because it is privately owned. It is not part of the Port Priority jurisdiction so we do not have any jurisdictional control over that. I do not know if you want to say anything more on that.

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But I want to ask a parallel question because as you have pointed out, and Danny Wan pointed out, the facilities at the Port of Oakland are not operated by the Port of Oakland. They are operated by private operators.

If there is going to be expansion those private operators need to make decisions to invest or not. To make Howard as well as some of the other facilities you have described, productive in the future. How do you balance those issues or did you take that into consideration in any way?

Mr. Smith explained: First on Antioch. You are right. The main reason that we did not include Antioch in the inventory is that it is not in BCDC jurisdiction and it is not in the Port Priority Use Area. We also did not include any other areas that are not in Port Priority land because by definition we cannot be sure that they would still be available and in maritime operation throughout the forecast horizon, much less indefinitely.

The other thing is, of course, although Antioch at that time was being built as capable of carrying/handling Ro-Ro cargo, the people we talked to at AMPORTS and Port of Benicia said at that point a decision had not been made on how that facility was going to be used. But the key reason was that it is not part of the BCDC jurisdiction for Port Priority.

In a sense we stepped away from the issue on how port terminal productivity would increase. That is a sensitive issue because it tends to cross the line on the automation versus labor issue, which is very thorny and by no means has been decided within the industry.

Our benchmarks showed that different terminals around the country and around the world made productivity increases in different ways. So what we tried to do with our benchmarking is establish what has been shown to be possible in comparable terminals and then we assumed that the Oakland terminals could achieve something like that without trying to determine exactly how it would be achieved.

Chair Wasserman stated: So if I am hearing you correctly, and I understand the reasons for this, there really was no analysis of whether there would be the investments, not just in productivity, but other things that would be necessary to do. For example, Howard we know has not been used for container cargo since 2014 if my recollection is correct of the Report, and would need likely significant investment to utilize that. For a variety of reasons you just did not analyze that piece of it.

Mr. Smith concurred: No, we did not bound anything by financial terms. First of all, often the information is not available and certainly what is required to update a terminal in say 2040 is pretty much unknowable at this point. As far as we know, the approach to seaport planning had never been financially constrained. So we did not consider financial constraints.

Chair Wasserman acknowledged: Thank you.

I do not see any other hands up and so I do not think I need an actual motion to adjourn.

Executive Director Goldzband chimed in: For the Commission and for the record, I want to ask that, my bet is that Commissioners and Alternates and members of the public will, upon further consideration over the next few days, come up with various questions.

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If you do, Commissioners and Alternates, please simply send those questions to Cory, Erik, Jessica, me, you have got all of our emails, and we will make sure that we throw those into the public record and that those issues and questions are considered.

Just know that we are under a very, very tight timeline due to the legislation so do not wait long if you do have any further questions. Thank you.

Chair Wasserman added: As Larry said at the beginning of those remarks, certainly if any members of the public have questions they should do the same. Thank you.

10. Adjournment. The meeting was adjourned at 4:45 p.m.

Approved Minutes of April 21, 2022 Virtual Commision Meeting

Documents

Transcript of Approved Minutes of April 21, 2022 Virtual Commision Meeting