After two-and-a-half years of public review, the San Francisco Bay Conservation and Development Commission (BCDC) has approved a comprehensive set of policies to address climate change and the resulting sea level rise anticipated to occur in San Francisco Bay. On October 6, 2011, the commission unanimously voted to approve amendments to its San Francisco Bay Plan that, among other requirements, call for case-by-case review of proposed new development within BCDC’s jurisdiction to determine whether a development’s benefits outweigh the risk of flooding from sea level rise. Over the long term, the amendments contemplate formulation of a regional strategy to be developed by BCDC and other regional planning agencies that considers and addresses sea level rise impacts.

The first of the commission's new climate change policies clarifies that BCDC will apply the new policies only to projects and activities located within its jurisdiction, namely, the San Francisco Bay, a 100-foot shoreline band, salt ponds, managed wetlands, certain waterways and the Suisun Marsh. BCDC adopted this jurisdictional statement to address public concerns that the amendments were an attempt by the commission to extend its jurisdiction and authority.

The new Bay Plan climate change policies call for BCDC to formulate a regional sea level rise adaptation strategy in collaboration with the Joint Policy Committee (which includes, in addition to BCDC, the Association of Bay Area Governments, the Bay Area Air Quality Management District and the Metropolitan Transportation Commission); other regional, state and federal agencies; local governments; and the general public. The new policies include recommendations for the goals and contents of this strategy: “Ideally, the regional strategy will determine where and how existing development should be protected and infill development encouraged, where new development should be permitted, and where existing development should eventually be removed to allow the Bay to migrate inland.”

Until the regional sea level rise strategy is formulated, the new Bay Plan amendments provide that BCDC should evaluate each project proposed in vulnerable areas within its jurisdiction on a case-by-case basis to determine the project’s public benefits, resilience to flooding and capacity to adapt to climate change impacts. The new policies identify several specific types of projects that “should be encouraged, if their regional benefits and their advancement of regional goals outweigh the risk from flooding, including environmental remediation or restoration projects, critical infrastructure, and projects that concentrate employment or housing near existing or committed transit service."

The new Bay Plan climate change policies also require preparation of a risk assessment when planning shoreline areas or designing larger shoreline projects. Within areas determined by the risk assessment to be vulnerable to future shoreline flooding that threatens public safety, most projects should be designed, at a minimum, to be resilient to a mid-century sea level rise projection.

© 2011 Perkins Coie LLP