Pier 36 - BCDC Consistency Determination

Making San Francisco Bay Better

LETTER OF AGREEMENT FOR CONSISTENCY

DETERMINATION NO. C2011.004.00

September 20, 2011

United States Army Corps of Engineers San Francisco District 1455 Market Street, Floor 15, 1570H San Francisco, California 94103-1398 Ladies and Gentlemen:

I. Agreement

A. The San Francisco Bay Conservation and Development Commission agrees with the determination of the United States Army Corps of Engineers (USACE) that the following project is consistent with the Commission's Amended Management Program for San Francisco Bay:

Location: In the Bay and within the 100-foot-shoreline band, at Port of San Francisco’s Pier 36, located at the Embarcadero between Brannan and Townsend Streets, in the City and County of San Francisco.

Description: To allow for the Port of San Francisco’s construction of the Brannan Street Wharf (a planned public park over the Bay) remove the Pier 36 shed building and pier structure, remnants of an associated wharf extension at the end of the pier, and sections of the marginal wharf joining the pier to the Embarcadero.

B. The project will result in the removal of approximately 150,000 square feet or 3.44 acres (2,556 cubic yards) of Bay fill, 447, 42-inch-diameter concrete caisson piles, and 400 remnant creosote-treated piles. The project will allow for the construction of the Brannan Street Wharf public park to be authorized in a BCDC permit (Permit Application No. 2010.001.00).

C. This agreement is given based on the information submitted by or on behalf of the United States Army Corps of Engineers in its letter and submittal dated July 19, 2011.

II. Special Conditions This Letter of Agreement shall be subject to the following special conditions:

A. Impacts to Special Status Fish Species. To minimize impacts to special status fish species or critical habitats, the USACE shall implement the measures outlined in a final Biological Opinion issued by the National Marine Fisheries Service (NMFS) and, prior to project commencement, shall provide a copy of the final Biological Opinion to the Commission staff.

B. Minimizing Impacts to California Gulls. To the extent feasible, the USACE shall not undertake demolition activities during the nesting season for California gulls, specifically between March 1 and August 1 of any calendar year. If demolition is scheduled to occur during the nesting season, prior to the nesting season, the USACE shall employ appropriate measures to prevent nesting of western gulls at the project site including:

United States Army Corps of Engineers

1. Netting all potential nesting areas on the roofs of the structures to prevent gulls from nesting with weekly inspections to ensure that the netting is functioning properly; or

2. Setting up a grid of wires (no more than one foot squares) across nesting areas, approximately one foot or more above the surface, that are thin enough to not provide a stable surface for gulls to perch but strong enough so that they do not break, and conducting weekly inspections to ensure that the barrier is functioning properly; or

3. Netting smaller areas where gulls are known to nest and hazing gulls in areas out-side the netted areas. (Hazing is the intentional disturbance and removal of nests prior to egg laying to prevent birds from nesting during the construction period.)

Beginning at least two weeks prior to the onset of the nesting season, one or more persons shall inspect the roof at least every other day and use a broom or leaf blower to disrupt any nests outside the netted areas before eggs appear. If eggs are observed in nests, they may not be disturbed. The roofs shall be inspected at least every two days and hazing shall continue throughout the nesting season, while demolition is occurring.

C. Construction Operations and Staging. Staging areas for demolition and construction shall be located within the designated areas shown on the plan titled, “Demolition and Construction Staging Areas,” prepared by the Port of San Francisco and dated August 23, 2011 and attached as Exhibit A. All work areas shall be appropriately screened and fenced and any on-land construction equipment shall be operated in a manner to ensure that impacts to public access areas are minimized. A minimum width of 15 feet shall be maintained at all times along the Embarcadero Promenade during demolition activities to ensure that impacts to public access are minimized. If needed, an additional 5 feet along a 200-foot-segment of the Embarcadero Promenade, as shown on Exhibit A, may also be used for demolition activities. The USACE shall place appropriate signage on either side of construction areas, as needed, to alert the public of the work, advising caution and potential delays and indicating when public access areas may be closed, cleared, and re-opened. The USACE shall ensure that appropriate signage and personnel are on-site to re-route the public around any portion of the public access areas that may be closed during construction activities.

D. Removal of Concrete Caissons and Piles. The concrete caissons supporting the pier and the marginal wharf and the creosote-treated piles that remain from the timber wharf extension shall be removed in their entirety, whenever possible, using a derrick barge and excavator. If caissons or piles break during removal efforts, they shall be cut a minimum of three feet below the mudline.

E. Debris Removal. Prior to demolition, the USACE shall conduct building surveys for hazardous materials, including but not limited to, lead, asbestos, PCB- and mercury-containing equipment (including elevator equipment), hydraulic oils, and fluorescent lights. Any hazardous materials discovered shall be abated from land according to federal, state and local laws and regulations and appropriately handled and disposed of at permitted facilities. The USACE shall use timber mats or other means to catch debris, and dump barges or dump trucks to transport materials offsite to an authorized upland disposal site. Fueling, lubrication, maintenance, storage and staging of equipment shall be done in designated staging areas and in a manner that will not result in discharge to the Bay. The USACE shall ensure that all operations

United States Army Corps of Engineers are performed to prevent materials from falling into the Bay. In the event that such material escapes or is placed in an area subject to tidal action of the Bay, the USACE shall immediately retrieve and remove such material at its expense.

F. Final Water Board Approval. No work identified in Section I.A above shall commence until the USACE provides the Commission with a final 401 Water Quality Certification from the San Francisco Bay Regional Water Quality Control Board and incorporates any required mitigation measures into its demolition and construction plans.

G. Inclinometer Plan. To ensure that demolition work on Pier 36 and construction of the Brannan Street Wharf do not affect the stability of the Embarcadero seawall, the USACE, in conjunction with the Port of San Francisco, shall prepare and submit an Inclinometer Plan for review and final approval by BCDC’s staff engineer and/or its Engineering Criteria Review Board (ECRB) prior to the commencement of work at the site. The plan shall include the number and location of inclinometers to be placed along the seawall, a description on how the inclinometers will be monitored, and the threshold for when demolition or construction activities shall cease if the inclinometers detect movement of the seawall. USACE and the Port shall consider leaving the inclinometers in place even after construction of Brannan Street Wharf and incorporate monitoring of the instruments in its seismic instrumentation program, to the extent feasible, and describe this in its inclinometer plan.

H. Notice to Contractors. The USACE shall provide a copy of this Letter of Agreement to any contractor or person working in concert with the USACE to carry out the activities authorized herein and shall point out the special conditions contained herein.

III. Findings and Declarations

A. On July 19, 2011, the United States Army Corps of Engineers submitted a description of the project and requested that the Commission concur that the project is consistent with its Amended Coastal Zone Management Program for San Francisco Bay. Based on the information contained in those materials and the conditions included herein, the project is hereby found to be consistent with the provisions of the McAteer-Petris Act and the policies of the San Francisco Bay Plan in that the project involves an activity similar to the routine repairs, reconstruction, replacement, removal and maintenance that do not involve any substantial enlargement or change in use in the Bay and within the 100-foot shoreline band, as defined in Commission Regulation Sections 10601(a)(6) and 10601(b)(5), and thus is equivalent to a "minor repair and improvement." Special Conditions II.A and II.B have been included in this Letter of Agreement to address the Commission’s policies on Fish, Other Aquatic Organisms, and Wildlife, including requiring compliance with all recommendations of NMFS’s final Biological Opinion to minimize impacts to special status fish species and requiring mitigation measures to address impacts to California gulls. To address possible impacts to public access, Special Condition II.C has been included to limit staging and construction activities to designated areas and to require that a minimum 15-foot-wide pathway along the Embarcadero Promenade (10-foot-wide along a 200-foot stretch, if needed), be maintained at all times to allow the public to pass during demolition.

The condition further requires signage and advance notice be provided to alert the public of the possible public access closures during the demolition activities. Special Condition II.D requires that concrete caissons and piles be removed entirely whenever possible, and if not possible, be cut at least three feet below the mudline. Finally, Special Conditions II.E and II.F have been included to ensure that construction materials do not fall into the Bay and that all construction debris is removed from the project site, thereby not creating adverse impacts to navigation or water quality, and that all final approvals from the San Francisco Bay Regional Water Quality

United States Army Corps of Engineers

Control Board are obtained prior to construction, as required by the Bay Plan policies on navigation safety and water quality. Special Condition II.G has been included, pursuant to the recommendation of BCDC’s ECRB, requiring an inclinometer plan be developed and submitted for final review and approval to ensure that demolition and construction activities do not affect the stability of the Embarcadero seawall. Finally, Special Condition II.H has been included to ensure that all contractors are aware of the special conditions included in this Letter of Agreement.

B. The City and County of San Francisco, the lead agency for the Brannan Street Wharf project, prepared, circulated, and, on June 16, 2011, certified a Final Environmental Impact Report pursuant to the California Environmental Quality Act (CEQA) for the Pier 36 demolition and Brannan Street Wharf construction projects. Moreover, on July 7, 2011, the USACE prepared and circulated an Environmental Assessment and a Finding of No Significant Impact pursuant to the National Environmental Policy Act of 1969 (NEPA) for the Pier 36 demolition project. Pursuant to Regulation Section 11501, the Commission finds that the Pier 36 demolition project authorized by this Letter of Agreement is categorically exempt from the requirement to prepare an environmental impact report because the project is one in which the Commission may issue an administrative permit pursuant to Sections 10601(a)(6) and 10601(b)(5), will not have an adverse impact on an environmental resource or involve a hazard of critical concern, and will not have a cumulatively adverse impact when considered with successively similar projects.

C. The Commission, pursuant to the Coastal Zone Management Act of 1972, as amended (16 USC Section 1451), and the implementing Federal Regulations in 15 CFR Part 930, is required to review federal projects within San Francisco Bay and agree or disagree with the federal agency's determination that the project is consistent with the Commission's Amended Coastal Zone Management Program for San Francisco Bay. This letter constitutes such review and comment.

D. Pursuant to Regulation Section 10620, the project was listed with the Commission on September 1, 2011.

Executed in San Francisco, California, on behalf of the San Francisco Bay Conservation and Development Commission on the date first above written.

WILL TRAVIS

Executive Director San Francisco Bay Conservation and Development Commission Enc.

WT/MY/ra cc: U.S. Army Corps of Engineers, Attn: Regulatory Functions Branch

San Francisco Bay Regional Water Quality Control Board, Attn: Certification Section Environmental Protection Agency Port of San Francisco, Attn: Diane Oshima and Steven Reel