S.F. Bay Conservation and Development (BCDC) Commission Letter.pdf

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 | info@bcdc.ca.gov | www.bcdc.ca.gov

Transmitted Via Electronic Mail Only

August 16, 2021

TO: U.S. Department of Veterans Affairs

San Francisco Health Care System 4150 Clement Street San Francisco, CA 94121 Attn: Robert Bezek, Alameda Program Manager Email: <robert.bezek@va.gov>

FROM: Lawrence J.Goldzband, Executive Director

SUBJECT: Consistency Determination No. C2013.004.01 (Amendment No. One)

Dear Robert Bezek:

Enclosed please find a final PDF copy of the Letter of Agreement for Consistency Determination No. C2013.0043.01, executed by the Executive Director, incorporating the amendment requested in the application dated June 2, 2021. In the Amended Letter of Agreement, deleted language has been struck through and added language has been underlined.

If you should have any questions regarding the attached Amended Letter of Agreement, please contact our staff at 415-352-3600 or info@bcdc.ca.gov.

DocuSign Envelope ID: AAA75E97-FF68-4DC8-962D-A46F90D4A243

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 | info@bcdc.ca.gov | www.bcdc.ca.gov

LETTER OF AGREEMENT FOR CONSISTENCY

DETERMINATION NO. C2013.004.01

(Originally Issued on February 13, 2014, As Amended Through August 16, 2021)

AMENDMENT NO. ONE

Department of Veterans Affairs San Francisco Health Care System 4150 Clement Street San Francisco, CA 94121

Department of Veterans Affairs VA Northern California Health Care System 10535 Hospital Way Mather, California 95655

AND

Memorial Service Network V 1301 Clay Street, Suite 1230N Oakland, California 94612

On January 16, 2014, the San Francisco Bay Conservation and Development Commission, by a vote of 13 affirmative, 2 negative, and 4 abstentions, adopted the following original resolution.

Moreover, on August 16, 2021, pursuant to Regulation Section 10822, the Executive Director approved Amendment No. One, to which this amended resolution is hereby issued:

I. Authorization

A. Authorized Project. Subject to the conditions stated below, the Commission agrees with the Department of Veterans Affairs, VA Northern California San Francisco Health Care System that the following actions of the VA within the Bay and the 100-foot shoreline band and within the Commission’s federal coastal zone management area, at a 623.6-acre area of the former Naval Air Station Alameda, the majority of which is located in the City of Alameda, Alameda County except for the southwestern corner, which is located in the City and County of San Francisco, are consistent with the Commission’s Amended Management Program for the San Francisco Bay Segment of the California coastal zone:

LETTER OF AGREEMENT FOR CONSISTENCY August 16, 2021 DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 2 Department of Veterans Affairs, San Francisco Health Care System VA Northern California Health Care System, and Memorial Service Network V

1. Within the Commission’s federal coastal zone management area, within the Bay, and within the 100-foot shoreline band:

a. Acquisition of a 623.6-acre area of the former NAS Alameda site by the Department of Veterans Affairs from the U.S. Department of the Navy;

b. Construction, use, and management of an 112.4-acre area of the acquired property for:

(1) Placement of approximately 444,000 cubic yards of imported clean fill material to raise elevations to 13.5 feet above Mean Sea Level;

(2) Installation, use and in-kind maintenance of construction staging areas, and materials associated with pre-construction activities (such as, geotextile layers, foundation piles, and concrete mats);

(3) Site grading;

(4) Construction, use, and in-kind maintenance of an 158,000-gross-square-foot two-story outpatient clinic (OPC) not to exceed 40 feet high except for a 54-foot-high section where a penthouse for equipment and roof element will be installed, all within a footprint of approximately 83,000 square feet, a 632-vehicle parking lot, and associated supporting facilities (e.g., an entry road-way, shuttle stop area, and storage facilities);

(5) Construction, use, and in-kind maintenance of an initial 20-acre section of a national cemetery (Phase One);

(6) Every ten years following the construction of the initial 20-acre section, the construction, use, and in-kind maintenance of eleven, approximately six-acre cemetery sections. Upon completion in 2116 approximately 2122, the cemetery will occupy an 80-acre area with a total capacity of 300,000 columbaria niches contained in structures measuring up to 10 feet tall, internment ceremonial shelter areas with structures up to 25 feet tall, and associated facilities, internal roadways, walkways, landscaping and irrigation, parking areas, memorial assembly areas, seating, perimeter fencing not to exceed six feet high, signage, flagpoles, trash receptacles, and a maintenance garage located north of the OPC building;

(7) Construction, use, and in-kind maintenance of a one-story, approximately 2,500-square-foot Conservation Management Office not to exceed 25 feet high for managing the California least tern including: up to 26 parking spaces for the public and employees; a bus drop-off area; a one-way roadway; two restrooms open for public use during regular business hours; a minimum of one drinking fountain; interpretive and educational signage; and an Americans with Disabilities Act (ADA) compliant pathway with an elevated viewing area;

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 3 Department of Veterans Affairs, San Francisco Health Care System

(8) Construction, use, and in-kind maintenance of North Access Road, an approximately 3,750-foot-long, 39-foot-wide road located along the northern boundary of the site with two 11-foot-wide vehicle travel lanes, one 12-foot-wide bicycle lane along the north roadway edge, one five-foot-wide pedestrian sidewalk along the south roadway edge, and eight vehicle parking spaces at the western terminus;

(9) Installation, use, repair, and in-kind maintenance of public access amenities within a 44,500-square-foot area located west of the national cemetery, and within an approximately 14,500-square-foot area within the public access area occupied by concrete revetment, routine repair, cleanup, and safety improvements (i.e., cutting exposed rebar and improving stability) of an exist-ing shoreline protection system;

(10) Construction, use, and in-kind maintenance of the Cemetery Access Road located perpendicular to North Access Road and servicing the OPC, the cemetery, and the CMO;

(11) Installation, use, and in-kind maintenance of site utilities, potable water, storm drains, street lighting transformer and control cabinets, including along North Access Road; and

(12) Installation, use, and in-kind maintenance of water quality management and control facilities, including bioswales and drainage systems.

(13) Stormwater outfalls and drainage pipes (Amendment No. One). Construction, use, and maintenance of two stormwater outfalls and three HDPE stormwater drainage pipes, including two 36-inch-diameter pipes and one 24-inch-diameter pipe (which would be capped until its use by the City of Alameda at a later date). In the Bay, outfall installation will include removal and replacement of approximately 827 square feet of rock riprap along the shoreline within the existing footprint, temporary installation and removal of two cofferdams (occupying approximately 3,659 square feet), and installation of two concrete flared outfalls over the existing riprap footprint. In the shoreline band, drainage pipe installation will involve removing existing asphalt and concrete and excavating to a maximum depth of approximately 10 feet, installing the pipes, and backfilling with clean fill materials, asphalt, and concrete.

(14) Temporary soil disposal area. Temporarily store disposed soils over an approximately 6.4-acre area at the western edge of Alameda Point and remove upon construction completion.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 4 Department of Veterans Affairs, San Francisco Health Care System

c. Use, management, and in-kind maintenance of a 511.2-acre portion of the acquired property primarily for the protection of a 9.7-acre nesting colony of the federally-listed endangered California least tern, for construction of a wetland mitigation area and riprap splash pad (described below), and for the future establishment of an approximately two-mile-long, a seasonal trail within a 12- to 25-foot wide easement at the western, southern, and eastern site boundaries to be used by the public from August 16 to March 31 of each calendar year.

d. Tidal marsh creation area (Amendment No. One). Within the 511.2-acre portion of the project site, construct and maintain an approximately 11.3-acre tidal marsh and transition zone, including the following activities:

(1) Tidal marsh creation. Over an approximately 8-acre area, excavate uplands and tarmac to elevations suitable for tidal marsh and remove the material from the Commission’s jurisdiction, construct pilot channels and a tidal inlet channel, and vegetate the new tidal marsh plain. The majority of the marsh plain will be graded flat to approximately +6.4 feet NAVD 88. Pilot channels will be constructed to depths of approximately +4.5 to +4.75 feet NAVD 88.

Construction of the tidal inlet channel will involve: excavating a tidal breach of the existing riprap seawall and adjacent uplands (over approximately 305 square feet of Bay and 0.232 acres of the shoreline band); lining the edges of the inlet with geotextile fabric, geogrid, bedding, and riprap; and constructing two, approximately 50-foot-long by 10-foot-wide riprap training dikes (with top elevation of approximately +10 feet NAVD 88) running parallel to the channel.

The final depth of the inlet channel will be approximately +2.2 feet NAVD 88.

(2) Tidal marsh transition zone creation. Over an approximately 3.3-acre area, excavate uplands and tarmac and remove the material from the Commission’s jurisdiction to create and revegetate a tidal marsh transition zone, to enhance the resilience of the created marsh to sea level rise. Final elevations of the transition zone will range from approximately +6.68 feet NAVD 88 to +10 feet

NAVD 88.

e. Tidal marsh enhancement area (Amendment No. One). Within the 511.2-acre portion of the project site, enhance and maintain approximately 14.8 acres of existing habitat (include 10.1 acres of tidal marsh, 4.3 acres of transition zone, and

0.4 acres of seasonal wetland) by removing invasive vegetation and replanting and/or reseeding with appropriate native vegetation.

f. Riprap splash pad (Amendment No. One). Within the 511.2-acre portion of the project site, construct, use, and maintain an approximately 0.5-acre riprap splash pad and maintenance road near the tidal marsh creation area, consisting of aggregate filter, riprap, and choke rock, to reduce the risk of soil erosion adjacent to the seawall and provide access for maintenance vehicles.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 5 Department of Veterans Affairs, San Francisco Health Care System

g. Temporary construction staging (Amendment No. One). Within the 511.2-acre portion of the project site, temporarily stage construction equipment and materials, in two locations over approximately 11.2 acres, adjacent to the marsh creation and enhancement area, and remove upon construction completion.

h. Temporary environmental protection devices (Amendment No. One). Temporarily install environmental protection materials, including cofferdams for the outfall work, a turbidity curtain for the tidal inlet construction, a laminated crane mat to protect marsh surface during tidal marsh enhancement activities, silt fencing, and erosion control materials, and remove after completion of associated construction activities (Amendment No. One).

B. Based on Application Dated. This amended authority is generally pursuant to and limited by the original request for consistency review and concurrence dated July 1, 2013, and by the application, dated June 2, 2021, requesting Amendment No. One, including all accompanying and subsequently submitted correspondence, documents, and exhibits, but subject to the modifications required by conditions hereto.

BC. Deadlines for Completing Authorized Work. Activities authorized in the original consistency determination must commence prior to January 1, 2017 2023 or this the original consistency concurrence will lapse and become null and void unless an extension of time is granted by further amendment of this the original determination. Such work must also be diligently pursued to completion and completed by January 1, 2116 2122. The activities authorized in Amendment No. One must commence prior to January 1, 2023 or this consistency concurrence will lapse and become null and void, unless an extension of time is granted by amendment of this determination. Such work must also be diligently pursued to completion and completed by January 1, 2027. All public access improvements except the seasonal trail, the establishment and use of which is contingent upon a future executed easement between the VA and an appropriate party, must be installed upon completion and prior to occupancy of the structures associated with Phase One of the VA’s development project prior to occupancy of the outpatient clinic authorized herein to be built in Phase One (currently estimated to be mid-2027).

C. Upon completion of Phase One Prior to occupancy of the outpatient clinic authorized herein (approximately 2019 mid-2027), the following facilities will be available for general public use: a 44,500-square-foot shoreline area (approximately 14,500-square-feet of which is occupied by a concrete revetment) located west of the national cemetery with seating, trash receptacles, a viewing area, and signage; the North Access Road with a five-foot-wide sidewalk, a 12-foot-wide bicycle lane, and an eight-vehicle public parking area;

and two public restrooms and a drinking fountain at the Conservation Management Office, which will also include public education amenities. At the 511.2-acre undeveloped area, along the western, southern, and eastern boundaries, the VA will also provide at a future date a 12- to 25-foot-wide easement for use of an approximately two-mile-long a seasonal trail available to the public from August 16 to March 31 of each calendar year.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 6 Department of Veterans Affairs, San Francisco Health Care System

II. Special Conditions

The amended concurrence provided herein shall be subject to the following special conditions:

A. Specific Plans and Plan Review

1. Construction Plan (Original Project). The improvements authorized herein, including the outpatient clinic and national cemetery, the North Access Road, the Conservation Management Office, and associated infrastructure, shall be built generally in conformance with the VA project plans prepared by HDR and updated through November 19, 2013. No substantial changes shall be made to these plans without prior review and written approval by or on behalf of the Commission by its staff.

a. Plan Review. Prior to the commencement of the activities and improvements authorized herein, the VA shall provide to the staff for its review and approval by or on behalf of the Commission: any plans for the outpatient clinic and national cemetery, the North Access Road, CMO, and associated infrastructure, whose location and/or dimensions differ significantly from that shown on the plans referenced in Special Condition II.A.1; and any plans for which design specifics have not been submitted to or reviewed by staff at the time of concurrence with this consistency determination, e.g., the improvements at the required 44,500-square-foot public access area.

Plans submitted shall be accompanied by a letter requesting plan approval, identifying the type of plans submitted, the portion and phase of the project involved, and indicating whether the plans are preliminary or final. Approval or disapproval shall be based upon:

(a) completeness and accuracy of the plans in showing the features required above and any other criteria required by this authorization;

(b) consistency of the plans with the terms and conditions of this authorization;

(c) the provision of the amount and quality of public access required by this authorization, among other things, to ensuring: (1) the public’s use and enjoyment of all access areas; (2) public safety; (3) accessibility for persons with disabilities; (4) sufficient durability and maintenance of materials and structures; (5) adaptability and resilience to sea level rise; and (6) that the access is clear and continuous and encourages public use;

(d) consistency with any future easements reserving public access areas; and

(e) consistency of the plans with possible future advice of the Commission’s Design Review Board.

Plan review shall be completed by or on behalf of the Commission within 45 days after receipt of the above-referenced plans.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 7 Department of Veterans Affairs, San Francisco Health Care System

2. Construction Plan (Amendment No. One). The improvements authorized under Amendment No. One shall be built generally in conformance with the following documents:

a. The plan set entitled “VA Alameda Wetland Mitigation Project 612-115 - Issued For Review,” dated April 08, 2021, and prepared by HDR Engineering, Inc. and H.T.

Harvey & Associates; and

b. The plan sheet L3.03 “Storm Drain Plain Estuary Outfalls” of the plan set titled “VA Northern California Healthcare System, VA Multi-Specialty Outpatient Clinic, Columbarium and Conservation Management Office (CMO), City Of Alameda – Storm Drain Review.”

Prior to commencing construction, the VA shall provide to Commission staff final copies of the plans, signed and stamped by a qualified engineer. No substantial changes shall be made to these plans without prior review and written approval by or on behalf of the Commission, pursuant to Special Condition II.A.

23. Conformity with Final Approved Plans. All work, improvements, and uses shall con-form to the final approved plans. Prior to any use of the facilities authorized herein, the appropriate design professional(s) of record shall certify in writing that, through personal knowledge, the work covered by the authorization has been performed in accordance with the approved design criteria and in substantial conformance with the approved plans. No noticeable changes shall be made thereafter to any final plans or to the exterior of any constructed structure, lighting, landscaping, signage, parking areas, roadways, or shoreline protection systems without first obtaining written approval of the change(s) by or on behalf of the Commission.

34. Discrepancies between Approved Plans and Special Conditions. In case of any discrepancy between final approved plans and Special Conditions of this authorization approved pursuant to this concurrence, the Special Condition shall prevail. The VA is responsible for assuring that all plans accurately and fully reflect the Special Conditions of this authorization.

45. Design Review Board. Prior to the installation of public amenities within an approxi mately 30,000-square-foot section of the 44,500-square-foot public shoreline area required in Special Condition II.B of this determination, the VA shall provide the Commission staff with relevant site plans of proposed improvements for review and approval by or on behalf of the Commission. In the event that the Commission staff determines that the site plan warrants review by the Commission’s Design Review Board (DRB), the VA shall provide plans for the public access improvements in order to seek the advice of the DRB and, ultimately, incorporate that advice into the project plans.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 8 Department of Veterans Affairs, San Francisco Health Care System

56. Appeals of Plan Review Decisions. Any plan approval, conditional plan approval or plan denial may be appealed by the VA to the Commission’s Design Review Board or, if necessary, subsequently to the Commission. Such appeals must be submitted to the Executive Director within 30 days of the plan review action and must include the specific reasons for appeal. The Design Review Board shall hold a public hearing and act on the appeal within 60 days of the receipt of the appeal. If subsequently appealed to the Commission, the Commission shall hold a public hearing and act on the appeal within 90 days of the receipt of the subsequent appeal.

B. Public Access.

1. Area. The approximately 44,500-square-foot area along approximately 450-linear feet of shoreline as generally shown on Exhibit A shall be made available exclusively to the public for unrestricted public access for uses, including walking, bicycling, sitting, viewing, picnicking, and related purposes. If the VA wishes to use the public access area for other than public access purposes, it must obtain prior written approval by or on behalf of the Commission.

2. Public Access Improvements. Upon completion and occupation of the outpatient clinic, roadway, infrastructure, cemetery (Phase One), Conservation Management Office, or other facilities concurred with herein (estimated to be 2019), Prior to occupancy of the outpatient clinic authorized herein (estimated to be mid-2027), the VA shall provide and maintain the following improvements, as generally shown on Exhibit A:

a. A minimum of four benches, two picnic tables, two trash containers, a viewing area, and signage within the 44,500-square-foot (1.02-acre) public shoreline area unless a different number is determined by or on behalf of the Commission to be sufficient to accommodate expected use;

b. Two public restrooms and, at a minimum, one public drinking fountain at the Conservation Management Office, to be made available to the general public on a daily basis during CMO regular operational hours, approximately 8:00 a.m. to 5:00 p.m.;

c. A public road (North Access Road) with a separated 12-foot-wide bicycle pathway on the north side of the road, a five-foot-wide pedestrian sidewalk on the south side of the road, and dedicated public parking spaces for a minimum of eight vehicles at the terminus, including two designated ADA spaces; and

d. A minimum of six directional and public shore signs to help locate and identity public access areas.

3. Maintenance and Repair. The 44,500-square-foot (1.02-acre) public shoreline area and all improvements cited in Special Condition II.B.2 shall be permanently maintained and repaired by and at the expense of the VA or its assignees. Such maintenance shall include, but is not limited to, repairs and upgrades to all path surfaces including those

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 9 Department of Veterans Affairs, San Francisco Health Care System related to tidal inundation or damage resulting from future sea level rise and flooding;

replacement of any plant materials that die or become unkempt; repairs or replacement as needed of any public access amenities such as signs, benches, drinking fountains, trash containers and lights; periodic cleanup of litter and other materials deposited within the access areas; removal of any encroachments into the access areas; and assuring that the public access signs remain in place and visible. After notification by staff, within 30 days or such other time period granted by or on behalf of the Commission, the VA or its assignees shall correct any maintenance deficiency noted in a staff inspection of the site.

4. Reasonable Rules and Restrictions. The VA may impose reasonable rules and restrictions for the use of the public access areas to correct particular problems that may arise. Such limitations, rules, and restrictions shall have first been approved in writing by or on behalf of the Commission upon a finding that the proposed rules would not significantly affect the public nature of the area, would not unduly interfere with reasonable public use of the public access areas, and would tend to correct a specific problem that the VA has both identified and substantiated. Rules may include restricting hours of use and delineating appropriate behavior.

5. Seasonal Trail Easement. On or before completion of the activities authorized herein as a part of Phase One Prior to occupancy of the outpatient clinic authorized herein and subject to the approval of the Secretary of Veterans Affairs, the VA shall issue an easement to the City of Alameda, California over an approximately two-mile-long, a 12-to 25- foot wide corridor. Said easement shall be for recreational purposes only as a seasonal trail and shall not interfere with the VA’s use of the adjoining land. The easement will be located primarily along the shoreline within the 511.2-acre undeveloped area of the project site. The alignment of the easement as foreseen pursuant to the original project is generally shown on Exhibit A, however it is expected that the wetland mitigation area approved pursuant to Amendment No. One will necessitate an adjustment to this alignment because a portion of that mitigation area will be constructed within a segment of the former easement alignment. The adjusted alignment will be finalized in future discussions among the VA, BCDC, the City of Alameda, EBPRD, the U.S. Army Corps of Engineers (USACE), and other relevant stakeholders. The current expectation, subject to change during discussions, is that the adjusted alignment will run along the western boundary of the 511.2-acre area, continue east along the southern boundary, turn northward or northeastward to avoid encroaching upon the new wetland mitigation area, then turn and continue eastward along or near the boundary of the wetland mitigation area, to a terminus at or near the adjoining City property to the east. the western southern, and eastern boundaries of the 511.2-acre undeveloped area of the project site, The seasonal trail along the easement will be developed and managed by the City of Alameda, and only be available for public use from approximately August 16 to March 31 of each calendar year consistent with protection of the least tern required by the USFWS and ongoing

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 10 Department of Veterans Affairs, San Francisco Health Care System maintenance of remediated areas. Any future improvements to the seasonal trail within the Commission’s jurisdiction shall require either an amendment to this consistency determination and/or a separate permit action by the Commission and the review and advice of the Commission’s Design Review Board. In the event that the Secretary of Veterans Affairs does not approve the easement from the VA to the City of Alameda within the above-specified time frame, the VA shall submit a revised consistency determination and receive Commission concurrence regarding implementation of an alternative public access improvement or set of improvements, which are of equal or greater public access value than the seasonal trail described in this concurrence.

C. Protection of Bay Resources and Water Quality (Amendment No. One).

The VA shall avoid and minimize impacts to water quality, fish, wildlife, and habitat at the site by implementing the following measures. Minor modifications to the requirements below may be approved by the Executive Director upon a finding that they are no less protective of Bay resources.

1. Avoidance and minimization measures during construction and maintenance. The permittee(s) shall implement the following avoidance and minimization measures during construction and maintenance:

a. In-water work window. In-water work shall only occur between June 15 and November 30 of each year to protect special-status fish species seasonally present in San Francisco Bay.

b. Protection of Least Tern. Measures shall be employed to protect the federally endangered least tern, as further specified in Section 4.3 of the Alameda Point Veterans Affairs Project Final Wetland Mitigation and Monitoring Plan, dated March 9, 2021 and revised through June 2, 2021, prepared by H.T. Harvey and Associates (“WMMP”), and the United States Fish and Wildlife Service (“USFWS”) Biological Opinion on the Proposed Naval Air Station Alameda Disposal and Reuse Project, dated August 29, 2012. Such measures shall include conducting all work during the tern’s non-nesting season (i.e., August 16 to March 31).

c. Protection of Other Nesting Birds. Measures shall be employed to protect other nesting birds, as further specified in Section 4.3 of the project’s WMMP. Such measures include conducting construction and maintenance activities between September 1 to January 31, where feasible, to avoid the bird nesting season for most birds in Alameda County. If work must be scheduled to occur during the nesting season, pre-construction bird surveys and appropriate buffer zones shall be employed as further specified in the WMMP.

d. Turbidity control. To reduce turbidity during construction, the VA shall temporarily install a cofferdam at each outfall installation location and a turbidity curtain at the tidal channel inlet construction location. The cofferdams and turbidity curtains shall

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 11 Department of Veterans Affairs, San Francisco Health Care System be installed at low tide and removed once related construction activities are complete. The cofferdams shall be installed with vibratory hammer or hydraulic press.

e. Sediment and erosion control. To minimize loose sediment from entering Bay waters during construction, sediment control measures shall be implemented in all upland areas where construction occurs within 100 feet of water, including silt fencing, erosion control blankets, check dams, erosion control seeding, or alternate methods where appropriate.

f. Worker environmental awareness program. Prior to commencing construction, a Worker Environmental Awareness Program (WEAP) shall be implemented to educate all construction and maintenance personnel of the area's environmental conditions and appropriate work practices, including special-status and listed species protections, site contamination prevention, and proper implementation of best management practices. Any new workers who arrive after construction has started shall be trained under the WEAP within two days of starting work at the site.

g. Spill prevention and control. A spill prevention and control plan shall be implemented during construction to minimize chemical spills into Bay waters during construction. Measures shall include equipment refueling and maintenance to occur outside of 200 feet from the Bay. The VA shall notify the Commission of any petroleum hydrocarbon, free product, or other chemical contamination spills that occur during the project activities within 48 hours.

2. Restoration of Temporarily Impacted Tidal Marsh Areas. Areas of tidal marsh that are temporarily impacted during construction or maintenance activities shall be restored in place to their original topography, hydrology, and vegetative cover. Temporary impact areas denuded to less than 50% cover as the result of impacts shall be actively revegetated within one year of the impact. The VA shall monitor and report on the recovery of all temporarily impacted areas in its annual monitoring reports pursuant to Special Condition II.D.3 below. If any temporarily impacted areas have not revegetated to their former condition within two years of the impacts, the VA shall notify and consult with Commission staff to determine if further restorative activities, including additional planting or reseeding, may be required.

3. National Marine Fisheries Service (“NMFS”) Consultation. The VA shall adhere to the avoidance and minimization measures to protect the threatened Central California Coast steelhead Distinct Population Segment (DPS) and threatened North American green sturgeon Southern DPS and designated critical habitat, as well as Essential Fish Habitat, as specified in the “Endangered Species Act Section 7(a)(2) Concurrence Letter and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for the Alameda Point Multi-Specialty Outpatient Clinic Project in Alameda County, California,” dated April 9, 2021, issued by NMFS.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 12 Department of Veterans Affairs, San Francisco Health Care System

4. USFWS Consultation. To protect the federally threatened western snowy plover and the federally endangered California Least Tern, the VA shall conduct work consistent with the USFWS consultation letter, titled “Proposed Changes to Naval Air Station Alameda Disposal and Reuse Project (Service file no. 81420-2009-F-0952-4),” dated December 10, 2019 and the USFWS August 29, 2012 biological opinion for the original project.

5. Regional Water Quality Control Board (“RWQCB”) Certification. To protect water quality during construction and the operation of the project, the VA shall comply with the “Clean Water Act Section 401 Water Quality Certification and Order for the VA Alameda Point Outpatient Clinic and Columbarium Project, City of Dublin, Alameda County,” issued by the RWQCB on July 27, 2021.

D. Tidal Wetland Monitoring, Management, and Reporting (Amendment No. One)

1. Five-year Post-Construction Maintenance and Monitoring. The VA shall conduct post-construction maintenance and monitoring of the tidal marsh creation and enhancement areas for a five-year period, or until the final success criteria detailed in Special Condition II.D.2 have been met, whichever is later, as described in Sections 5 and 6 of the WMMP. The VA shall monitor for the following, as further detailed in the WMMP: hydrology and acreage of the wetlands, percent cover of native species, native plant diversity, invasive plant cover, vegetation height, topographic change, and stability of the tidal inlet.

2. Final Success Criteria. The VA shall maintain and monitor the site to ensure that the following success criteria are met, as further described in Section 6 of the WMMP:

a. Success Criteria for the Tidal Marsh Creation Area.

Annual Success Criterion

Year 1 Year 2 Year 3 Year 4 Year 5

Tidal Marsh

Wetland Delineation

≥7.3 ac

Hydrology/ Acreage

≥7.3 ac below high tide line (HTL)

≥7.3 ac below HTL

≥7.3 ac below HTL

≥7.3 ac below HTL

≥7.3 ac below HTL

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 13 Department of Veterans Affairs, San Francisco Health Care System

Percent Cover Native Species

-- >Year 1 >Year 2 >Year 3 ≥60%

Native Plant Diversity

>baseline >baseline >baseline >baseline >baseline

Invasive Plant Cover ≤5% ≤5% ≤5% ≤5% ≤5%

Vegetation Height <2 feet <2 feet <2 feet <2 feet <2 feet

Topographic Change and Tidal Inlet Stability

Qualitative expert opinion

Qualitative expert opinion

Qualitative expert opinion

Qualitative expert opinion

Qualitative expert opinion

Transition Zone

Percent Cover Native and Nonnative Species

- >Year 1 >Year 2 >Year 3 ≥60%

Native Plant Diversity

>baseline >baseline >baseline >baseline >baseline

Invasive Plant Cover ≤5% ≤5% ≤5% ≤5% ≤5%

Vegetation Height <2 feet <2 feet <2 feet <2 feet <2 feet

b. Success Criteria for the Tidal Marsh Enhancement Area

Annual Success Criterion

Year 1 Year 2 Year 3 Year 4 Year 5

Tidal Marsh

Native Plant Diversity

>baseline >baseline >baseline >baseline >baseline

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 14 Department of Veterans Affairs, San Francisco Health Care System

Transition Zone

Percent Cover Native and Nonnative Species

- >Year 1 >Year 2 >Year 3 ≥60%

Native Plant Diversity

- >baseline >baseline >baseline >baseline

3. Annual Monitoring Reports and Adaptive Management Actions. Annual monitoring reports shall be submitted to Commission staff by January 31st of each year during the five-year post-construction monitoring period. The annual monitoring report shall include, at a minimum: (1) results of the monitoring results for that year as required above and as described in the WMMP, (2) a comparison of the data to monitoring results from previous years, (3) description of the progress towards meeting final performance criteria for the project, (4) a description of any maintenance conducted related to the project, (5) a description of any temporarily impacted wetland areas and the status of the restoration of those areas pursuant to Special Condition II.C.2, and

(6) any adaptive management or corrective actions necessary or completed. The final monitoring report shall document if the site meets the final performance criteria. If at any point during the monitoring period, monitoring indicates that the performance criteria were not met or will not be met, the VA shall, in consultation with the appropriate agencies, identify any necessary corrective or adaptive measures to be undertaken, including extension of the monitoring and reporting period until the criteria are met, and shall obtain any Commission approvals where necessary, which may include plan review or an amendment to this authorization, prior to commencing work. Success of the mitigation program shall be determined by or on behalf of the Commission.

4. Long-Term Management and Monitoring. Following completion of the post-construction monitoring period, the VA shall conduct long-term management and monitoring of the site to achieve the site’s long-term habitat management goals, as specified in Section 7 of the WMMP.

E. Proof of Adequate Property Interest (Amendment No. One). Prior to commencing work on any portions of the stormwater drainage pipes or outfalls authorized under Amendment No. One that occur on City of Alameda property, the VA shall submit documentation to Commission staff, such as an easement or similar, demonstrating that the VA has obtained adequate property interest to conduct work on said property.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 15 Department of Veterans Affairs, San Francisco Health Care System

CF. Other Government Approvals and Future Amendments to Consistency Determination. All required permissions from federal, state, and local bodies must be obtained before commencement of work authorized herein. These bodies include, but are not limited to, the San Francisco Bay Regional Water Quality Control Board. This consistency determination does not relieve the subject federal entity of any obligations imposed by federal, state, or local law, either statutory or otherwise. Prior to the installation of outfalls or storm drainage systems or any other improvements located within the Commission’s jurisdiction and not specifically authorized herein, the VA shall obtain an amendment to this consistency determination or a separate authorization regarding such work.

DG. Notice to Contractor. The VA shall provide a copy of this consistency determination to any contractor or person working in concert with the VA to carry out the activities authorized herein and shall point out the special conditions contained herein.

EH. Life of Authorization. Unless otherwise provided in this determination, all the terms and conditions of this determination shall remain effective for so long as the determination remains in effect or for so long as any use or construction authorized by this determination exists, whichever is longer.

FI. Violation of Consistency Determination May Lead to Determination Revocation. Except as otherwise noted, violation of any of the terms of this determination shall be grounds for revocation. The Commission may revoke any determination for such violation after a public hearing held on reasonable notice to the subject federal entity if the determination has been effectively assigned. If the determination is revoked, the Commission may determine, if it deems appropriate, that all or part of any fill or structure placed pursuant to this determination shall be removed by the subject federal entity.

GJ. Should Consistency Determination Conditions Be Found to be Illegal or Unenforceable.

Unless the Commission directs otherwise, this determination shall become null and void if any term or special condition of this determination shall be found illegal or unenforceable through the application of statute, administrative ruling, or court determination. If this determination becomes null and void, any structures placed in reliance on this determination shall be subject to removal by the subject federal entity to the extent that the Commission determines that such removal is appropriate. Any uses authorized shall be terminated to the extent that the Commission determines that such uses should be terminated.

HK. Permission to Conduct Site Visit. The determination shall grant permission to any member of the Commission’s staff to conduct a site visit at the subject property during and after construction to verify that the project is being and has been constructed in compliance with the authorization and conditions contained herein. Site visits may occur during business hours and with 48-hours notice.

DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 16 Department of Veterans Affairs, San Francisco Health Care System

IL. Riprap Repair

1. Material. Any riprap material subject to repair located within the 44,500-square-foot public access area required in Special Condition II.B installed pursuant to this authorization shall be either quarry rock or specially cast or carefully selected concrete pieces free of reinforcing steel and other extraneous material and conforming to quality requirements for specific gravity, absorption, and durability specified by the California Department of Transportation or the U. S. Army Corps of Engineers. The material shall be generally spheroid-shaped. The overall thickness of the slope protection shall be no more than three feet measured perpendicular to the slope unless a coastal engineer can substantiate that larger pieces are warranted. Use of dirt, small concrete rubble, concrete pieces with exposed rebar, large and odd shaped pieces of concrete, and asphalt concrete as riprap is prohibited. Professionals knowledgeable of the Commission’s concerns, such as civil engineers experienced in coastal processes, should participate in the design of the shoreline protection repair.

The specific drawings and information required will be determined by the Commission staff. To save time, preliminary drawings should be submitted and reviewed by the Commission staff prior to providing final drawings, pursuant to Special Condition II.A.

2. Maintenance. The maintenance of the existing shoreline protection system located at the western shoreline within the 44,500-square-foot public access area and the replacement riprap installed in the Bay at the outfall installation locations shall include collecting riprap pieces that become dislodged and repositioning them in appropriate locations within the riprap covered area, replacing in-kind riprap material that is lost, cutting off exposed rebar, repositioning loose pieces, and removing debris that collects on top of the riprap.

III. Findings and Declarations

This amended consistency determination is given on the basis of the Commission's findings and declarations that the work authorized herein is consistent with the McAteer-Petris Act, the San Francisco Bay Plan (Bay Plan), and the Commission’s amended coastal zone manage-ment program for San Francisco Bay for the following reasons:

A. Natural Resources. The Bay Plan policies on Fish, Other Aquatic Organisms and Wildlife state, in part, “[t]o assure the benefits of fish, other aquatic organisms and wildlife for future generations, to the greatest extent feasible, the Bay's tidal marshes, tidal flats, and subtidal habitat should be conserved, restored and increased.” In addition, the policies state, “[s]pecific habitats that are needed to conserve, increase or prevent the extinction of any native species, species threatened or endangered, species that the California Department of Fish and Game has determined are candidates for listing as endangered or threatened under the California Endangered Species Act, or any species that provides substantial public benefits, should be protected, whether in the Bay or behind dikes.”

Further, the policies direct the Commission to consult with, among others, the USFWS whenever a proposed project may adversely affect an endangered or threatened… species, DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 17 Department of Veterans Affairs, San Francisco Health Care System and the policies direct the Commission to not authorize projects that would result in the “taking” of any listed species unless the project applicant has obtained the appropriate “take” authorization from the appropriate resource agencies. Bay Plan Map No. 5 contains a policy note for an area immediately south of the project site stating, in part, that “Projects [should be] allowed only if protective of harbor seals and other sensitive wildlife.”

At the project site, 511.2 acres will remain undeveloped (except for the wetland mitigation area and riprap splash pad authorized under Amendment No. One), and, except for on-going site operations and any necessary remediation activities related to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), be managed to protect a 9.7-acre nesting colony of the federally-listed endangered California least tern.

Within this area, a two-mile-long seasonal public trail will become available pending execution of an easement between the VA and the City of Alameda. The seasonal trail will be available for public use during the least tern’s non-nesting season, i.e., August 16 to March 31 of each calendar year and, thus, be operated in a manner consistent with the USFWS’s biological opinion for the entire 623.6-acre site issued in August 2013.

Because the VA has designed the project in accord with USFWS’s Biological Opinion issued for this project to protect the endangered California Least tern, and has set aside nearly 82% of the project site as open space and habitat for the least tern, the Commission concurs with the VA that the project is consistent with the Commission’s coastal management policies protecting natural resources.

B. Public Access. Section 66602 of the McAteer-Petris Act states, in part, “public access to the shoreline and waters of San Francisco Bay is inadequate and that maximum feasible public access, consistent with a proposed project, should be provided.” To that end, the Bay Plan contains policies directing that all projects authorized by the Commission increase public access (Public Access Policy No. 1) and provide (Public Access Policy No. 2) maximum feasible public access to the Bay and its shoreline. Supporting findings of these policies provide, in part, that access “usually consists of pedestrian and other non-motorized access to and along the shoreline of San Francisco Bay” and “may include certain improvements, such as paving, landscaping, and street furniture; and it may allow for additional uses, such as bicycling, fishing, picnicking, nature education, etc.”

The Bay Plan Public Access Policies Nos. 3 and 4 recognize that public access can conflict with sensitive resources and provide, in part, that such areas “be carefully evaluated in consultation with appropriate agencies to determine the appropriate location and type of access” and design, management, and monitoring be used to “avoid or minimize adverse effects on wildlife. Policy No. 7 provides that access areas be safe and convenient and designed to “encourage diverse Bay-related activities and movement to and along the shoreline” and allow “barrier free access for persons with disabilities to the maximum feasible extent.” Policy No. 9 states, in part, that waterfront access “be provided by walkways, trails, or other appropriate means and connect to the nearest public thoroughfare where convenient parking…may be available.” Policy No. 10 states, in part, DETERMINATION NO. C2013.004.01 (AMENDMENT NO. ONE) Page 18 Department of Veterans Affairs, San Francisco Health Care System that roads near the water should “provide for safe, separated, and improved physical access to and along the shore.” Lastly, Bay Plan Public Access Policy No. 5 states that “public access should be sited, designed, managed and maintained to avoid significant adverse impacts from sea level rise and flooding….” and, further, Policy No. 6 states partly that “public access provided as a condition of development should either be required to remain viable in the event of future sea level rise or flooding, or equivalent access consistent with the project should be provided nearby.”

The VA’s consistency determination states that the project will employ up to approximately 260 staff each weekday and 50 staff each weekend day, and receive approximately 730 OPC and cemetery visitors each weekday and 250 visitors each weekend day. The facilities will serve U.S. veterans throughout the Bay Area and other visitors.

The VA will construct, install, and maintain various amenities serving the general public.

The VA will permanently provide, operate, and maintain a 44,500-square-foot shoreline area, (required in Special Condition II.B.1) approximately 30,000 square feet of which is relatively flat and intended for use by pedestrians and other non-motorized access. The VA has stated that wheelchair users at the site will have visual access over the riprap and to the Bay. The remaining 35% of this area is occupied by existing unengineered riprap containing irregular pieces of concrete and rebar.

As part of Amendment No. One, Special Condition II.B.2 has been updated to require that public access amenities be…