12. Public Hearing on Permit Application No. 14-98 from Montezuma Wetlands, LLC, 
to Use Dredge Materials to Construct Wetlands in the Suisun Marsh, in an 
unincorporated area of Solano County near Collinsville. Bob Batha, BCDC Chief of 
Permits, explained to the Commission that this project proposed by Montezuma 
Wetlands would create 1,800 acres of tidal marsh in a diked area of the Suisun 
Marsh using dredged materials. The Staff believes the project raises the 
following issues: 1) whether sufficient safeguards are in place to protect Bay 
water quality, 2) whether site preparation or dredged material placement should 
be limited to certain times of the year to minimize wildlife disturbance, 3) 
whether the proposed public access facilities are consistent with the policies 
of the Suisun Marsh Protection Plan and Solano County's policies and regulations 
governing the Suisun Marsh which call for providing a balance of recreational 
needs consistent with the protection of wildlife, 4) whether the project is 
consistent with the Port and water-related industrial designations of a portion 
of the site, 5) whether the project is consistent with the Suisun Marsh 
Protection Plan Policies on Land Use and Water Management which call for 
returning historic marshes to wetland status, and 6) whether the lighting and 
above-ground utilities proposed as part of the project are consistent with the 
Suisun Marsh Protection Plan Policies on Utilities and Preservation and 
Enhancement of Marsh Habitat. 

Doug Lipton, the Project Manager for Montezuma Wetlands stated that it has been 
a long road for this project. Ten years ago Mr. Lipton last spoke to the 
Commission with regard to the last state permit for the Montezuma Wetlands 
Project. Mr. Lipton explained that he is an independent consultant and has been 
on the project for ten years, formerly a principal scientist at Levine Fricke 
Company, and prior to that after receiving his Doctorate at U.C. Berkeley, 
worked at USGS and also Lawrence Berkeley Labs evaluating soil and wetlands 
environments and contaminant issues. 

He then introduced Roger Leventhal, the lead engineer and Rachel Bonnefill, 
Ecologist who have worked closely together with numerous staff and agency 
experts, as well as regional scientists and researchers from U.C. Berkeley, San 
Francisco State, and the San Francisco Estuary. Jim Levine is the project 
founder and vision behind this project and has helped to maintain the project 
through very intensive evaluations and permitting efforts. 

Mr. Lipton proceeded to give a brief overview of the project with the aid of an 
overhead slide presentation. This project really satisfies the goals and 
policies of all the LTMS agencies, including BCDC's policies, and the dreams of 
all the regional scientists and restoration and biology experts around this 
region. It beneficially reuses dredged sediment that is commonly dumped in the 
Bay or in the ocean. It will be restoring wetlands and those wetlands will be 
restored to tidal wetlands. The sediments that will be used are strictly 
approved by the State of California and the U.S. E.P.A. as sediment that are 
suitable and approved for use in wet aquatic wetland environments. In addition, 
the project also has an interesting feature in that it can rehandle clean 
sediment, dewater it, and dry it out for reuse in beneficial projects in the 
Delta for farm protection, for water supply protection, and for habitat 
restoration projects. After ten years of intensive efforts by BCDC Staff, as 
well as all the other agency staff evaluating this project, there is unanimous 
approval, which is really quite remarkable, from all of the permitting and 
resource agencies. This led Solano County to certify the EIR by a five to zero 
vote, as well as unanimous votes on the county permit and marsh development 
permit. Finally, the U.S. Fish & Wildlife Service, which is the most critical 
agency of all to say anything positive about any restoration project, even their 
own, concluded in 1998 before the applicant went before the County to certify 
the EIR that in fact this project would be beneficial for the estuary. Just 
recently, several months ago, in the draft biological opinion, the conclusion 
was exactly the same. 

Mr. Lipton was hopeful that the Commission will see that this project is indeed 
beneficial for the estuary and is something it can embrace as being consistent 
with its policies. 

Mr. Lipton showed an aerial photograph, an infrared photograph of the Suisun 
Marsh area, indicating a healthy vegetation. Suisun Marsh has 50,000 acres of 
wetlands, predominantly seasonal wetlands, and for that very reason, the site 
that's located on the Eastern edge of the Suisun Marsh near the Sacramento San 
Joaquin Rivers and the Bay waters, about 81,000 acres, serve as a recovery plan, 
for tidal wetlands and recovery of endangered fish species, and it's also been 
endorsed by the San Francisco Goals Project as a site that should be restored to 
tidal wetlands. It was essentially diked 100 years ago for farming, and when you 
put perimeter dikes around a wetland area and you drain it, it oxidizes and the 
site has fallen about ten feet. Currently, it's degraded agricultural land, 
containing some wetlands values, but because of the degraded habitat and the 
potential to enhance its habitat, all the agencies think it should be restored. 
Because it's fallen ten feet below sea level, it needs sediment to bring it up 
to an inter-tidal marsh elevation. The only way to do that is to bring in dredge 
sediment. 

The vision for what the marsh will look like would be an inter-tidal marsh with 
emergent vegetation and channels for fish to swim in. Mr. Lipton showed as an 
example how Muzzy Marsh was restored using similar sediment. This project was 
done in the 80's, so back then they actually didn't have the very critical close 
evaluation of sediment quality like they do now, so there was nothing called 
noncover sediment back here. 

Mr. Lipton pointed to the different types of habitats that applicant wants to 
restore to promote different types of special status species and recovery of 
species. The project is about 2,400 acres and predominantly will be low marsh 
land. On one side of the proposed project the applicant will rehandle the clean 
sediment that's in these ponds and there's another portion of that facility 
separated by engineering and levees and space, that contains the make-up water 
pond where water will be re-used to pump and transfer the sediment that comes in 
barges to the site into the restoration area. There is a public use area that 
exists now, the Day Use Area that's run by the Department of Water Resources, 
and the applicant has worked closely with the Design Review Board over a couple 
months answering all their questions and issues. There will be public access 
along that Day Use Area along the levee up to the future breach in Phase II, and 
then there will be a future public access area along the future Phase II/IV 
levee enabling people to look back at the marsh. 

The engineering features are really relatively simple. Basically, barges that 
contain 4,000 to 7,000 tons of cubic yards of sediment will be coming in the 
deep waters of the Bay, docking at the off-loading facility, for which the 
applicant obtained a lease from State Lands for that area of the site. Shallow 
ground water will be pumped from the site in a way that is the most 
environmentally effective way to do it. The applicant will be using existing 
sand that's on the site to pump the shallow ground water that's directly 
connected to the Bay, so in a sense the sand will be used to filter the water. 
This is far more ideal than just throwing a pipe out into the Bay and pumping 
water through fish screens that is often done on other projects. The water will 
be put into the make-up water pond where the applicant can manage the water and 
where it can be monitored very closely in accordance with the Water Board 
Permit. That water will be pumped into the barge and slurring the sediments so 
that it can be brought to about 80 percent water. It can then be pumped into a 
pipeline into the restoration or into the rehandling area where levees will rim 
the area where the sediment is placed, essentially serving as sediment settling 
ponds. The noncover sediment is placed at the bottom of those ponds also behind 
another set of containment levees. 

Mr. Lipton noted that with this understanding of what the project is about, all 
the benefits and all of the unanimous support from all the agencies, remarkably 
and sadly there's still a lot of issues that the public and certain members of 
the opponents that really have wanted to kill this project every step along the 
way continue to raise. All of these issues have either been settled by the 
technical experts at all the agencies, or the courts. The EIR adequacy is one 
big issue that, ever since the document came out two and a half years ago, was 
contested as being inadequate. Clearly, after all the technical experts reviewed 
and answered questions, it convinced the Board of Supervisors in Solano County 
to vote 5/0 that it was adequate. That ruling or decision was appealed and then 
the Superior Court of Solano County actually ruled in favor, that indeed it was 
adequate and actually made the very interesting statement that the County had in 
fact bent over backwards, to use their language, to satisfy all the requirements 
of CEQA. And then again, the opponents appealed that court's ruling to the 
Appellate Court, and recently the Appellate Court in San Francisco again upheld 
that the EIR was indeed adequate. The opponents weren't happy with that decision 
and requested that they re-hear it, and they said no. 

Groundwater and salinity is another big area of issues that the opponents have 
brought up. Again, the groundwater salinity issues have vetted thoroughly 
through the ten-year process. In fact, additionally, the Water Board in their 
permit required the applicant to do additional field work that was completed 
before they issued the permit that, in fact, further confirmed that there would 
be no impacts to ground water or salinity. One of the reasons for that, the 
noncover sediment, the material that's slightly less clean than cover material, 
doesn't leech contaminants. In fact, it leeches contaminants at levels that's 
below drinking water standards and, even more importantly, at non-detect and 
part per billion levels that are near the most stringent water quality criteria 
below the water quality criteria for adverse effects to the most sensitive 
aquatic organisms; larvae that have just been born and evaluated and tested. But 
still, the opponents, Save The Bay, and Baykeeper, it was those groups have 
claimed that the Water Board's Permit was not adequate and that they should have 
issued another permit. Mr. Lipton pointed to letters from the primary federal 
agencies that evaluate for permits, the U.S. E.P.A. and the Corps of Engineers, 
et al. that are in strong support of the Water Board's Permit. In fact a letter 
from the E.P.A. states that they do not agree that the discharges from the site 
must be regulated under an NPDS permit. Nothing in the Petitioner's Response 
changes our view that it is reasonable and appropriate for the Water Board to 
regulate the discharge of dredge material and decant water through WDR's rather 
than an NPDS. 

Again, harmed and endangered species is something mentioned in some of the 
recent articles in the paper. They still claim that this project will be 
destroying endangered species, and yet the agencies have concluded the opposite. 

Next, Mr. Lipton addressed the issue of contaminants. Essentially, all sediment 
in the Bay and the estuary is contaminated with metals and organics, with trace 
metals like copper and zinc and with heavy metals like mercury and with organic 
chemicals like pesticides. Therefore, all sediment used to restore wetlands 
contain contaminants. Whether you use dredge sediment that's been dredged from 
the shipping channels, or whether you have a natural restoration project that 
allows the tides to bring in sediment from the Bay like Karl's Marsh on the 
Petaluma River. The contaminant issue is exactly why all of the agency staff and 
the regional experts have paid so much attention to developing and testing 
protocols and evaluation procedures over the last decades. That is what the 
applicant uses and people like the Port of Oakland spend millions of dollars to 
test their sediment to evaluate the contaminant levels, and then to evaluate the 
leechability and to evaluate the bio-availability of those contaminants in 
different environments. That is also why there's a number of sediment 
designations that the agencies use. They have some acronyms that they use and 
the ones that apply to the wetland restoration projects are the wetland creation 
cover and noncover sediment. These are really the two cleanest categories of 
sediment in the Bay and, in fact, noncover sediment often passes the bioassay 
test for dumping in the ocean and in the Bay. 

One of the really unfortunate distortions of this whole issue of contaminants 
and designations is, when they say that noncover sediment is not suitable for an 
aquatic environment, that's not true. It's not the same as the new add material 
that's not suitable for unconfined aquatic disposal. 

As a trained chemist Mr. Lipton then showed the Commission some figures that 
illustrate the point very clearly. These involved graphs of Chromium, Lead and 
Nickel in parts per million, with a number of different categories and types of 
sediment. In red it shows the hazardous levels for each of these chemicals, and 
in fact those concentrations are above those bar graphs. These metals are 
actually bound on the right side in orange bar graphs that actually indicate the 
levels that are appropriate to use for residential and single family homes. So 
the sediment the applicant is taking at their site is not hazardous at all. It's 
much much less, and it's actually similar. The Port of Oakland's highest 
concentrations in their noncover sediment are shown in the dark blue purplish 
bar, compared to Suisun Marsh here in the light blue is very similar. And in 
fact, what's dumped in the ocean currently in and at Alcatraz is shown in the 
light blue, and in fact similar to what's been dumped in the ocean and in the 
Bay, and in Chromium's case it's actually lower, but again, because of bio-
availability that doesn't mean that Chromium level is not safe for putting in 
the ocean or Bay. The graphs provide virtually the same sort of picture for two 
chemicals that are of great concern to the agencies and all the technical 
experts that have reviewed this project, and that is mercury and DDT because 
they bio-accumulate. The highest concentrations of Mercury the applicant will be 
taking from the Port of Oakland are similar to what's in Suisun Marsh, and 
actually very similar to what's been dumped in the ocean and the Bay. Because 
Mercury is so highly bound up, it's not as available. And for DDT, it's 
interesting to note that the highest concentrations of that chemical in the Port 
of Oakland sediment is actually on order of magnitude below than what's commonly 
dumped in the Bay. So again, a lot of this material would otherwise be dumped 
into the ocean or the Bay over the long term if there's not a project like 
Montezuma that can take this noncover material. Where are all these contaminants 
coming from? The conclusion from this data is that certainly this site is not a 
hazardous site as has often been characterized by the opponents or at toxic 
waste dump sites where the make-up water pond is a cesspool of contaminates, nor 
is the rehandling facility a contaminated treatment facility. The noncover 
sediment is in fact very similar to what's already out there in the cleanest 
parts of the marsh. The data Mr. Lipton actually showed came from the clean 
parts of Suisun Marsh. 

There definitely are other parts and there has been some recent work done at 
U.C. Davis and CalFed that has also shown that. The marshes are not pristine, 
but that's not a problem. That's what Mother Nature designed them to do. They 
filter our water so our aquatic resources remain clean, our drinking water 
sources can remain clean, and they essentially serve as the liver of our 
ecosystem. So the marshes are built up from sediment from a number of different 
sources, including soils that naturally contain metals. A lot of our marine 
soils out of the Central Valley leak Selenium or Arsenic, the soils that came 
out of the Central Valley a hundred years ago when they were mining for heavy 
metals and gold, and mercury came down; tidal waters that bring up sediment from 
the Bay at a rate of half a million gallons of water per second that comes up 
from the Golden Gate bringing salt and sediment, tons of sediment up with it, 
and run off from the valley farms. 

Luckily Mother Nature has devised an amazing system where sediments and soils 
have these remarkable solid phases and features, the clays and the iron 
hydroxides and organic matter that tightly bind metals and organics. 
Additionally, a wet marsh environment is the perfect place to put these because 
that wet environment keeps oxygen out so that the microorganisms, the bacteria 
and the fungi, can actually create these anaerobic conditions that form 
sulfides. And sulfides are the strongest binders of our heavy metals and, lo and 
behold, mercury is probably the most tightly bound of any of those heavy metals, 
and organic compounds remain tightly bound to sediment as well. 

Mr. Lipton further pointed out that the data has shown that noncover is in fact 
very similar to what is out there and not that contaminated at all, and that 
this project will be putting in an environment that's effective and will 
actually show that additional engineering designs and protections were applied 
to further isolate this noncover material. An important feature here is that the 
noncover sediment again is in a small portion at the bottom of the site. In 
Phase I the project will take on the Port of Oakland sediment and only ten 
percent of the total volume of that entire phase will be noncover. The rest will 
be this cleaner cover material that will be over it by at least three feet. 
Another important feature is that the noncover is behind compacted levees that 
are at least 200-feet away from a water body and channel. There was a recent 
letter written by Save The Bay that somehow claimed that these interior levees 
are going to restrict tidal hydrology, which is beyond a hydrologist's 
understanding because these levees are actually below mean high water and 
they're not going to impede flow. The channels have been over-sized to bring in 
enough tidal prisms so that won't be a problem at all. The other important 
feature to notice is where the noncover is relative to the tide heights. The 
Noncover is four-feet below mean high tide level on not even the highest tide 
line, and it's another foot below the mean tide line. At the State Lands 
hearing, the opponents brought up the fact that the crayfish, because they 
burrow three-feet, will get into the noncover because there is only a three-feet 
cover, but the critical fact they left out is that crayfish, yes, will burrow 
three feet above the high tide line. They're certainly not going to go another 
four-feet through anaerobic sediment where there's no air to get to the noncover 
sediment. 

In addition to the engineering constraints and design, the applicant had to make 
this project really safe as possible. There are additional permitting 
constraints and a monitoring program like nothing they've seen, and certainly 
like nothing the applicant client has seen. It's two-inches thick. The Water 
Board and Corps staff who review mitigation and monitoring reporting plans said 
it is the most comprehensive they had ever seen. This is all monitoring that 
will be done through each phase of the project, and for decades after the 
project. Additionally, the county has about 102 permit conditions all tied 
exactly to this monitoring plan, and county and Water Board permits also require 
additional financial assurances. The applicant will be putting up millions of 
dollars of cash deposit to ensure that the closure of each of the phases and the 
monitoring over the long term will be done effectively and for 20 to 30 years. 
Additionally, there will be environmental impairment insurance; those agencies 
have asked for a couple million dollars and, in fact, the insurance agents were 
just out at the site a couple days ago with their technical folks and confirmed 
that it was a minimal enough risk that can be insured for many millions more. 

Going back to the original vision of the project, which has really sustained the 
applicant and all the staff that's worked so hard on this project and worked 
closely with all the agencies, the applicant is committed to work closely with 
each of the staffs at all of the agencies and is committed to work with as many 
members of the public and the regional experts that want to participate, and the 
technical advisory groups that will be reviewing all of the quarterly and annual 
monitoring reports. 

Commissioner Waldeck noted that the Regional Water Quality Control Board 
approved this project about six months ago. He asked for a clarification of 
cover vs. noncover material. 

Dr. Lipton explained that this will be thoroughly evaluated before it comes to 
the site and all the environmental review and testing that's required of any 
dredger, be it the Corps of Engineers or the Port of Oakland, that wants to 
remove sediment from their shipping channels. And that material, all the 
sediment, is tested through, again, a very intensive environmental review public 
process, sampled and evaluated in total chemistry and leechability and then 
bioassay tests, and then compared against all the relative criteria and 
different criteria that the agencies use to make that determination. There are 
clear evaluation and guidelines that they use to determine what's cover 
sediment, and then what's noncover sediment. Typically, for example, at the Port 
of Oakland, the sediment at the Port of Oakland that is noncover is really not 
noncover because it fails bioassay tests or it couldn't be dunked in the ocean. 
If it doesn't meet the cover criteria, say, for a certain concentration of a 
chemical, it might be slightly higher. And so that concentration would cause it 
then to be in the noncover category, whereas when you're evaluating it for 
disposal in the ocean, and this is where the confusion comes in, that doesn't 
matter because what matters is the bio-availability of that concentration of 
that contaminant in the environment. 

Commissioner Waldeck asked if it could be assumed through this that cover 
material will be found somewhere along the way. 

Dr. Lipton noted that that's exactly what all the testing that they've done has 
defined for them. They've gone out and taken the borings on locations that are 
evaluated by GPS to know exactly where they are, and they pinpointed certain 
areas of the sediment that will be cover or noncover material, will be clean, or 
will have different other uses. These areas are defined with the agency's review 
and through the whole public process. 

Commissioner Rippey referred to Dr. Lipton mentioning the extensive testing and 
monitoring and wondered how much of that information is going to be available, 
the various levels of the materials, and the contaminants that might be in the 
materials. Also, how are they going to be available and are they going to be 
readily available or are they going to be available on a daily basis. Would some 
of it be proprietary and how much is going to be available. 

Dr. Lipton stated this was spelled out very clearly in the MMRP; that the 
applicant has certain reporting requirements that are sometimes weekly, 
sometimes monthly, sometimes quarterly, and sometimes annually, dependent on the 
type of monitoring done or the water quality data, or the agitation data. So all 
that will be made available to the public agencies and the applicant has also 
committed to, and it's part of the permit condition as well, to have a technical 
advisory group made up of public and regional interested parties to evaluate 
that and hear what the data is. This would include the testing of the sediments. 

There is an extensive confirmation testing program in place that will be testing 
sediments as they come off the barges, as they go into the sediments, as they go 
into the sediment cells, and then there will be ongoing water quality. 

The testing of the contaminants is probably going to be available anywhere from 
weekly to monthly. 

Commissioner Rippey wanted to know if this information would be available at a 
website or quickly available, or if one would have to wait for a report to be 
prepared, and then not see it for a couple months. 

Dr. Lipton explained that, certainly when it goes to the lab, you get it back 
and it takes some time to do quality assurance/quality control evaluations. It 
would typically take a week or two turnaround time. Then in terms of putting it 
on a website, there has been a lot of discussions about how to make it available 
to the public and also the interested parties that are reviewing the monitoring 
program will see the data and be able to see where it came from, when it was 
collected. The applicant has committed to a process, certainly with the county 
staff and the Water Board staff, that they are committed to present their 
monitoring data at least on an annual basis to the agency, and open to the 
public so they can see what the data is and how that data is evaluated. 

Commissioner Rippey inquired, as the project is phased in, could Dr. Lipton 
explain how the applicant proposes, as this project is built, to phase-out. He 
noted that a lot of the concerns that have been raised by the neighbors, 
particularly some of the adjoining property owners, is that the applicant is 
converting the area to a quasi-industrial site over and above what the actual 
impacts might be. He asked what was the long term plan to phase out as the 
project reaches completion. 

Dr. Lipton explained that with regard to the industrial aspect, currently at the 
site there's Jericho rehandling facility that rehandles sands and oyster shells 
and crushes that. What the applicant proposes to do is not that much different. 
The barge traffic up there and the off-loading process for that will take 10-15 
years for the restoration of the project, depending upon the rate that sediment 
is available from the different channel deepening and Corps and navigation 
projects. Then the rehandling facility could operate as long as the agencies 
want it to. And certainly with CalFed and Department of Water Resources and all 
the agencies' interest to get clean sediment up in the Delta for habitat 
restoration, water protection, and farmland protection, there's a real interest 
to see that rehandling facility continue. However, the applicant needs a use 
permit from the County before it can continue past the restoration phase of the 
project. 

Commissioner Rippey stated he was just concerned about the additional equipment 
and activities that are required to do this particular project, not any smaller 
projects or future projects. What would the phase-out period for this aspect of 
it be. 

Dr. Lipton said that for the restoration aspect, it would be 10-15 years. When 
that's finished, then the rehandling aspect can only continue if a permit is 
obtained. If no permit is obtained, then the activities cease, the pumps will be 
removed and the equipment and the infrastructure improvements. If there's no 
continuation beyond the end of this project, there are conditions in the permit 
or in the contracts that require the applicant to remove the equipment and to 
phase out. One of the biggest parts of the financial assurances is for closure 
of post-closure, meaning not only each phase is closed, but that fourth phase is 
closed. When that's done, then there are certain very specific requirements to 
get rid of whatever limited infrastructure that is really there, to get to move 
that off. The project, as was originally envisioned and evaluated in the EIR, 
was going to have diesel pumps. And now everything is going to be electrified in 
terms of off-loading materials. This means the noise and the pollution from the 
actual operations will be far far less than what was in the EIR. 

Commissioner Rippey then asked if Dr. Lipton had discussed the change in the 
project that is indicated and some of the letters BCDC received. 

Dr. Lipton indicated he had no, because that's a essentially a red herring. The 
project has been virtually the same. There are design details that have been 
modified each one to enhance the project and to minimize potential adverse 
impacts, which is what the opponents have dealt with and all the courts have 
agreed that the project, those revisions that all the opponents are saying were 
so major, are actually all done to minimize adverse impacts. 

Sandre Swanson, Chief of Staff for Congresswoman Barbara Lee stated he also 
served 25 years with Congressman Dellums. Both offices have been monitoring the 
project for a long time and have been satisfied with the due diligence and also 
feel it's a win win situation. There's great synergy here in the Bay Area and 
obviously this project assists the Port of Oakland with its $1.7 Billion 
expansion and all the positives that are involved with that, but also the 
development of this wetlands is very important to us and it was important to 
Congressman Dellums and now it's very important to Congresswoman Lee. He also 
stated that he has been paying very close attention to all the permitting 
processes that have taken place here. Both Congresswoman Lee and Congressman 
Dellums endorse the approval of this with that in mind. 

Larry Kolb, Assistant Executive Officer with the San Francisco Bay Regional 
Water Board stated he was here today to briefly review the bases for the Board's 
action last July in approving this project and then to respond to any questions. 
At the outset, he stressed that the sediments that are used for marsh 
restoration for this project are already in the Bay. If we accept that dredging 
is necessary, the question becomes where's the best, or one might say the least, 
bad place to dispose of this material. Heretofore, the practice has been to dump 
this material back into the Bay, mostly at the Alcatraz site. The upland 
disposal is preferable to dumping sediments into the Bay. Under proper 
regulation, it carries far fewer environmental risks. The moving away from Bay 
dumping is one of the key recommendations of the Long Term Management Strategy 
for dredge material. The order adopted by the Regional Board last July regulated 
the Montezuma project in two ways. First it established limits on the quality of 
what could be discharged into the Bay from the decant water and these are 
consistent with the tight standards in the Regional Board's Basin Plan. 
Secondly, it sets standards for the quality of the sediments that could be used 
for cover and noncover material in accordance with the Board's guidance document 
on this subject. The guidance document was adopted by the Board in 1992 in 
anticipation and indeed in the hope that wetlands creation projects would be 
proposed in lieu of dumping dredge material into San Francisco Bay. The Board's 
policy was based on the best available science and underwent extensive peer 
review. Mr. Kolb made this point because a lot of the objections to this project 
are actually opposition to the Board's Guidance document on wetlands creations 
that was adopted in 1992. He said he knew of no dredge material disposal project 
that has undergone such extensive environmental review by the staff and by the 
staffs of the other resource agencies at the state, local, federal level. And 
all of those agencies have concurred that this is a safe project. The last thing 
anybody wants is to approve a project that causes harm, and he did not think 
this project will cause harm. In closing, the late great Mark Reisner. said that 
wildlife habitat cannot be reserved to those few pristine wilderness areas that 
remain. If we are to retain our wildlife heritage, we have to find ways for 
human activities and wildlife to co-exist and to accomplish this in areas that 
are no longer pristine. Mr. Kolb suggested that the Montezuma project helps 
implement that vision. 

Steve Chappell, Executive Director of the Suisun Resource Conservation District 
said he was asked by his Board to come here today to voice one area of concern. 
In the Staff Report in the Application Summaries Section, one issue is raised, 
the construction window. Currently, it's proposed under the existing regulations 
the restrictions to the construction window is October 15th through April 15th, 
but there's no work activities conducted on Suisun Marsh and that's under the 
Suisun Marsh Protection Plan. The Board had expressed concern that if there is 
an extension or a waiver on this that there may be detrimental effects to 
wintering water foul and the adjacent land uses in the marsh, primarily the 
water foul hunting and the impacts to the adjacent properties on the other side 
of Montezuma Slough. So under consideration as a mitigation, as discussed here, 
it says possibly allowing work activities to be conducted on off-shoot days. 
Typically in the marsh, hunting activities are conducted Saturdays, Sundays, and 
Wednesdays, but there's no hunting activities Mondays, Tuesdays, Thursdays and 
Fridays. This is done by design with the hunting clubs to allow the wildlife and 
the wintering water birds to use the wetlands undisturbed during this period. 
The concern is about activities such as driving piles and heavy equipment 
operation during those days as well that would be detrimental. So on behalf of 
the Resource Conservation District, Mr. Chappell asked the Commission to 
consider limiting work activities from October 1 or October 15th. It would be 
preferred to be October 1 through the end of January for wintering water fowl, 
and then maybe if there was a slip in the time frame, allowing it to go some 
time after February 1st of any work season. Currently the land owners in the 
marsh abide by the current restrictions with the exception of emergency work, 
and a waiver allowing them to do activities for emergency levee repairs and 
things like that during that window would be applicable and necessary to protect 
the integrity of the program. 

So with that, the only other thing is just the general position of the Resource 
Conservation District with this project. SRCD did not take a position when 
Solano County was considering this as it didn't have the technical staff to 
review the document. The issues for the contaminants have been addressed and the 
concern is that SRCD would like to be an active participant through this process 
on the technical review and assure that Levine-Fricke honor some of the 
commitments that were made to the marsh and to the landowners as being good 
neighbors. 

Margaret Emmington, a 96-years-old resident of Collinsville stated that it was 
the father of her husband who first came to Collinsville before the Turn of the 
Century. But she, too, knows the wonders of this area and the beauties. She said 
she also knows the importance of the Suisun Marsh. She knows about the vernal 
pools in the marsh, about the pickleweeds and has seen the pickleweed that the 
little marsh mouse feeds on. She knows the little river otters that are so 
important and has seen the great flocks of birds as they feed in the marsh. She 
has had the pleasure of eating very often fish from our great flowing Sacramento 
River. But, she now has to tell that the birds are not as plentiful as they were 
and that the salmon seem to be gone. The once clear waters at Collinsville all 
year long are full of salinity. She felt sure that the Montezuma Wetlands 
Project is also, as well as proposing to save the marsh, really a plan to 
develop a Port at Collinsville. She said she was convinced that this plan would 
ruin the beauty, the ecosystem of this truly unique area. She urged the 
Commission to vote no on the Suisun Wetlands Project. There needs to be in this 
world and in this part of California some parts which are not completely 
industrial. Please protect the ecosystem and the health of this area by voting 
no on the project. 

Leslie Emmington-Jones expressed her appreciation of Bob Batha. He raised 
issues. They're there for discussion. They're all laid out in the Staff Report. 
With regard to the first one, not-sufficient safeguards, she pointed out two 
items that deserve note and there are many others. The first is in this article 
from a newspaper in Rio Visa referring to a request to BCDC not to approve any 
wetlands project until U.C. Davis completes its very important basic report 
about the mercury. Whatever is said by the project proponent there are very 
serious questions about activating mercury in the present time and about 
wetlands that are shallow, even activating the mercury further. This is a very 
important report and should be on BCDC's next agenda, as well as this project. 
There's reference to the bio-solids that are up in the agricultural land. Bio-
solids that are being used in the agricultural lands and the Montezuma Hills are 
actually by the Water Quality Control Board prohibited from being within the 
sensitive areas such as the Suisun Marsh. So that's a mis-connect there and the 
Commission should know that. Those are two items of not sufficient safeguards. 

The reference to the breeding season seems contrary. It seems to flaunt the 
Suisun Protection Plan and she assumed BCDC would think that too. Is this a 
construction project or is this a wetlands protection project? It shouldn't be 
that the Port of Oakland drives this project. She pointed out that there's a 
Mare Island Project coming before the Commission and it has very significant 
alternative capacity for $10 million cubic yards of the material that wouldn't 
be put near or by the Suisun Marsh. 

Ms. Emmington said that Commissioner Rippey raised the point of designation and 
it's very very fundamental to understanding whether this is actually a landfill. 

Chair Kaufman interrupted Ms. Emmington and Commissioner Gioia asked if it would 
be possible if she has written material to have that submitted. 

David Lewis, Executive Director of Save The Bay stated he has a great deal of 
respect for Jim Levine as an entrepreneur and a creative businessman, and 
respect for him as a former member of this Commission and colleague of many of 
the commissioners. This permit is not about a person, and it's not about the 
bona fide needs of a person or an institution. It's about a special place, as 
the previous speakers have mentioned. But it's also a special place because it's 
one of those diked drained historic lands that is formerly part of the Bay, 
formerly tidal marsh, that can be restored. Mr. Lewis said he wanted to 
emphasize that it can be restored faster, cheaper, and more safely with a 
project that does not involve the noncover material. He encouraged the 
Commission to require that as a condition of the permit, that none of that 
material be used. Save The Bay has been very supportive of trying to restore 
marshlands around the Bay, including those that require the use of dredge 
material to raise the basic elevation, clean dredge material. Some very 
important lessons in this still young science of marsh creation using dredge 
material have been learned. The most important one is to try as much as possible 
to let nature take its course. Now there are some in the environmental community 
who believe that means we should never use dredge material, just allow the tides 
to deposit sediment naturally. Save The Bay does not share that point of view, 
but does believe that when you use dredge material, the way to have a high 
quality marsh be created as quickly as possible is to not over-engineer the 
project. And the extra levees that are a part of this project, which have been 
put there, yes, to contain the wetland noncover sediment, also inhibit the flow 
of the tides. They direct water to certain parts of the site very intentionally. 
And that means less water will get to other parts of the site where nature might 
naturally take it. The Port of Oakland can and would take this noncover material 
elsewhere if this site is not available to it, either because it's not ready or 
it's not permitted for that purpose by the Commission. Mr. Lewis stated that the 
overall project will cost less, including costing the project manager less, if 
these extra precautions for contaminated material do not have to be taken, and 
these extra levees do not have to be built, and that extra care does not have to 
be taken. So as Mr. Lewis' longer letter to the Commission suggests, he would 
encourage BCDC to insist on changes in the project that obviate the need for 
expensive construction of the separate cells and would not use noncover material 
and its contaminants at the site. Those changes would also remove some of the 
pressure to accelerate construction during the periods of time that the Suisun 
Marsh Protection Plan forbids it to protect water fowl. Mr. Lewis was looking 
forward to an altered project that Save The Bay can whole heartedly endorse and 
encourage the Commission to endorse. 

Paul Goettlich, a resident of Oakland stated he saw this project as an opening 
of the Bay to ships, period. He could not see this as a restoration, period. 
Using the term "restoration" for this project is ridiculous. One of the 
toxicants in this dredge spoils is Dioxin. Dioxin's toxicity must be measured in 
parts per quadrillion. It mimics the endocrine system's hormone estrogen in all 
animals. Estrogen works in parts per trillion. This project is going to be 
monitored in parts per million. Now that's, about, six orders of magnitude lower 
than the chemical that they're monitoring acts on all animals. That's one point. 
Another point is that the National drinking water standards are by no means 
adequate for anything. Third point, in hearing the proponents of this project 
speak that heavy metals and organics will be bound completely to the soil, he 
was reminded of a chemical engineer who spoke to him years ago that the 
chemicals and plastics are completely bound and non-toxic, which we know now is 
totally wrong. And one of these chemicals mimics estrogen. Well, many of them in 
plastics mimic estrogen and we're seeing all these problems. And there's many 
many studies that show these things. He offered to give BCDC this. The 
measurements that'll be done, the testing on this project, are woefully 
inadequate. 

Marc Holmes, the Wetlands Restoration Program Director for the Bay Institute of 
San Francisco stated that his organization is opposed to the project and, 
contrary to Dr. Lipton's presentation on its behalf, the Bay Institute believes 
that there are crucial matters that have yet to be considered by any agencies 
that are the specific purview and responsibility of this Commission. First, the 
project's primary purpose is not to restore wetlands, but to establish a 
contaminated waste dump within the largest wetland wildlife refuge in 
California. Because the purpose is misrepresented, the proposal includes several 
elements that directly conflict with the policies of the Suisun Marsh Protection 
Act. It vastly expands construction activities in order to prepare the site to 
receive contaminated materials. The site must be ditched and drained to increase 
the subsidence level to enable contaminants to be buried deep enough to secure 
necessary approvals. These activities are otherwise unnecessary for the wetland 
restoration project and pose a needless threat to wildlife. Internal levees 
would be constructed that are necessary only to contain contaminants. This 
requires that tidal channels be located by design, a departure from the 
principle of restoration that channels be allowed to form naturally in order to 
achieve superior ecological stability. And the so-called wetland restoration 
activities would threaten wildlife by extending the construction period into 
Fall and Winter. 

Second, and extremely important, if approved, this project would effectively 
designate the Suisun Marsh as a waste disposal site and enable contaminants to 
be disposed of throughout the approximately 45,000-acre diked wetland complex. 
This policy decision should not be made under the pretense of a wetlands 
restoration project. If it is the intention of Solano County, the Regional Water 
Control Board, to designate that the marsh be a contaminated waste dump, a 
proposal for that program should be presented and exhaustive public scrutiny 
should ensue. Instead, no agency has addressed that question, declaring it 
outside the realm of their responsibility. Nevertheless, Solano County has 
rezoned the entire marsh for this purpose without any consideration to the 
impacts on the marsh. Further, the contaminant levels proposed by the project 
sponsors are discretionary. They may be amended upward at any time by the 
Regional Water Quality Control Board. Since the official practice of this 
Commission is to defer to the Regional Board on matters of water quality, 
authorization of this project would effectively render the Commission unable in 
the future to object to proposals that contain vastly increased contamination 
amounts. He recommended to BCDC, if it would find this preposterous, to review 
the U.S. Army Corps of Engineers' programs already referred to that are 
considering and in the practice of using contained aquatic disposal as the 
preferred alternative for dealing with contaminated materials from dredge 
disposal. 

In conclusion, other alternative are readily available that could easily avoid 
all of these adverse impacts, including removal of contaminated materials to 
upland areas, or use of other more suitable sites such as Hamilton Field, Mare 
Island, and West Contra Costa County. As described, this project directly 
violates the principles of the Suisun Marsh Protection Plan. Therefore, not only 
should it be denied, but it must be denied. Conversion of the Suisun Marsh into 
a dumping ground for contaminated Bay mud is not consistent either with the 
letter or the spirit of the Suisun Marsh Protection Plan. 

Laurie Brown and Members of the Board, referred to Doug Lipton's remarks about 
the testing and sediment criteria for the project. As a layperson, she has been 
speaking to numerous scientists from U.S. Fish & Wildlife Service and Department 
of Fish & Game off the record, and she was asking about the ten-day bioassays 
that Doug Lipton has talked about. What they told her is that these tests will 
only tell you if there is acute toxicity. It will not tell you if there's a 
long-term problem. It doesn't tell you what happens to organisms when they live 
to produce and reproduce, and it doesn't tell you about genetic mutations or if 
they lay fewer or deformed eggs. And it was explained to her as just as similar 
to DDT in the 40's when it took time for things to develop. And it was also 
described to her as this is as if you were to test someone to smoke a pack of 
cigarettes and say this does not cause cancer. 

Ms. Brown next proceeded with a slide show of this site in an attempt to show 
and give the Commission an idea of the Suisun Marsh and how pure and clean it 
is, and why we're all here, that this is ten percent of the wetlands left in the 
entire State of California. It's an aquatic resource of international 
importance. And it's the largest brackish wetland in the Continental United 
States. So this is for context. 

The Montezuma Hills have a 100 years' history of dry farming in the area, and 
she wondered what five million gallons of water a day from the shallow ground 
water will do to the aquifer and that longstanding history that's historic to 
the State of California. Ms. Brown showed a picture of a flock of either red-
winged or tri-colored blackbirds and tri-colored blackbirds are a State species 
of special concern. Also a picture of the pickleweed, 500 acres of salt harvest 
marsh mouse environment, an endangered species. It's quite a bit and you can see 
the various vegetation systems. 

Commissioner Gioia addressed the Chair and stated that sometimes it's been 
customary, in the past to give a chance to speakers to wrap up a little bit on 
an issue. 

Chairwoman Kaufman indicated that there were a huge amount of speakers and that 
it's important to keep the meeting moving because the Commissioners all have 
comments to make as well. 

Sabrina Ellis, resident of Solano County, stated she was very much in favor of 
projects that make money and benefit the environment, but did not think the 
Montezuma Project will benefit wildlife or the people of Collinsville. 
Describing the project as wetlands restoration allows us to ignore the fact that 
it will first eliminate established endangered wildlife habitat and become a 
dump site before the possibility of restoring any wetlands. The success of the 
project depends on the hope that the mud containing chromium, lead, arsenic, 
mercury, selenium, dioxin, PCB's and DDT and over 65 contaminants from the Port 
will remain encased under a three-foot cap. Biology doesn't tend to keep things 
in boxes. Selenium is what poisoned the birds at Kestersons. Chromium was what 
leeched from PG&E's ponds into wells, and PG&E had to spend millions to 
compensate those people for cancer, miscarriages, and birth defects. Dioxins 
were what caused those same things at Love Canal. In spite of assurances at 
Montezuma, there is worry that the tides will cause the cap to erode. There is 
concern that the many burrowing animals, from invertebrates to muskrats and 
river otters will excavate the cap for food and places to live. There is worry 
that invertebrates and plants will take up contaminants from the mud, and that 
these will be eaten by birds that live in and migrate through the marsh. There 
is also worry about exotic predatory species coming in with the mud. She said to 
be troubled that there will be large holding ponds for contaminated water that 
will attract birds. She did not think these will be lined to prevent leaching of 
contaminants into ground water. The only leaching test that she has heard of 
took place over a four-hour period. The contaminated mud and water will remain 
there for a lot longer than four hours. The use of millions of gallons of fresh 
water to be taken from an underground aquifer to slurry mud onto the site is 
wasteful of a precious resource. The word "restoration" suggests that the goal 
is to bring the wetland back to the way it used to work, but the last time 
Montezuma was a wetland, it wasn't being run as a dump site and it didn't 
include mud comprised of 50 years of urban and industrial pollution. But why 
stop at calling it "wetland restoration?" Because Mare Island is more polluted 
than what's coming from the Port of Oakland, perhaps Mr. Levine could relocate 
his project to Mare Island and call it an "environmental clean-up." 

Alec Bash representing the Port of San Francisco, wanted to indicate for the 
hearing record that the Port has submitted a letter in support of this proposal 
on the basis of providing an upland location for the relatively minor but still 
important amounts of dredging that San Francisco does do for these services it 
provides for ferries, especially for harbor and also dry docks and other 
maritime activities. San Francisco was the first port, as indicated in the 
Port's letter, to dispose of dredge spoils at an upland location and believes 
that having a facility such as this which has gone through considerable 
processes, as has been outlined at this hearing, is an important thing for the 
San Francisco Port to have available in the future. 

Tule West presented letters to the Commission from experts who comment on 
particular flaws of this proposed project that are critical, as they pertain to 
the protection of the wildlife in the Suisun Marsh. And while there are many 
unanalyzed problems with this project, to avoid repetition, Mr. West wanted to 
address the potential of crayfish to burrow into this noncover material, and 
what specific problems this would cause. The levees and the wetlands all along 
the Suisun Marsh have otter droppings everywhere that are littered with crayfish 
shells. The assumption that the noncover material is encapsulated, impenetrable 
and permanently contained is flawed. The submitted letters are from the E.P.A. 
stating that burrowing crayfish were not analyzed in the EIR and confirms their 
presence in the area and their ability to burrow deeply. 

Secondly, a letter from the Acting Director at the Center for Aquatic Biology 
and Aquaculture at U.C. Davis, who dismisses the weak theory that noncover being 
below 1.5 mean feet will create an atmosphere without oxygen that won't sustain 
burrowing organisms. Specifically, he states it would not matter if the 
substrate were deprived of oxygen. The crayfish creates its own air space as it 
burrows and constructs the warren. 

Thirdly, Mr. West submitted a letter from a mercury expert from the Department 
of Wildlife, Fish and Conservation Biology from U.C. Davis who details the 
effects of bio-accumulation with exposure to this noncover sediment and 
specifically analyzes the noncover sediment and the monitoring and reporting 
plan submitted by Levine--Fricke. BCDC is identified as a responsible agency for 
the monitoring and reporting plan on Table 5, Line 87. It states, If burrowing 
by red-swamp crayfish is detected adjacent to noncover cells, the options 
include, 1) burrows will be filled, 2) place straw bails to limit channel 
development, or 3) apply salt to increase salinity in spawning season. This 
material will be buried at this site for generations, but the monitoring and 
reporting is for ten years. After the money is made and Levine is done 
monitoring his own project, who will fill these burrows? Who will place the 
straw bails? And who will sprinkle salt? The comments provided by Tom Suckonic, 
who was a research ecologist on mercury contamination in California for the past 
decade, specifically with respect to elevated environmental levels, the 
transformation into toxic methyl mercury and bio-accumulation of aquatic food 
reps provides comments on the levels of Mercury in noncover sediment as 
documented in Mitigation and Monitoring Reporting Plan Table B 5, effluent 
limits and Sediment Screening Criteria. Mr. West summarized that the risks are 
two-fold, first from a wildlife health perspective. Crayfish represent food 
items from a number of predatory fish and birds. Their consumption of mercury 
contaminated crayfish, if sufficiently frequent, could result in bio-
accumulation of mercury and could cause behavioral and/or reproductive problems 
for these wildlife species. Second, if mercury contaminated crayfish were eaten 
by humans in sufficiently large numbers over a long enough period, it could also 
result in similar neurological and/or reproductive effort effects. U.S. 
Commissioners in charge of the Suisun Marsh Protection Plan are very fortunate 
to be responsible for such a magical place. This project and its use of noncover 
is admittedly experimental. It poses unnecessary risks . 

Dan Cirillo, owner and operator of Birds Landing Hunting Preserve and Sporting, 
and also a neighbor to the site stated he was here today to pledge his support 
to the project. He said he trusts that all the governing agencies have done due 
diligence in their approvals and permitting process. And hopefully, with the 
Commission's vote we can welcome the wetlands project to the business community 
out on Birds Landing. 

Jonathan Kaplan from San Francisco Baykeeper, which is a project of Waterkeepers 
of Northern California stated that Baykeeper opposes the project as proposed and 
will continue to oppose it unless it's amended to prohibit the noncover fill 
material and to comply with the Suisun Marsh Protection Plan. They are 
particularly concerned that the project will pose long-term impacts to water 
quality in the area. With all due respect to the colleagues at the Regional 
Board, Baykeeper believes that the Regional Board inappropriately permitted the 
site in July and inappropriately determined that the contaminated decant water 
slurried sediments and polluted ground water discharging from the site is 
exempted from the requirements of a national pollutant discharge elimination 
system permit; an NPDS permit was not issued. This means that the discharges 
from the site are not subject to the federal permitting system strict limits for 
effluent discharges. Baykeeper has appealed that permit and the appeal is now 
pending at the State Water Board. The Regional Board also, in Baykeeper's 
belief, incorrectly permitted the project to discharge pollutants that have 
already been found by the Regional Board, the State Board, and E.P.A. to be 
impairing the Suisun Marsh. Mr. Kaplan used the slide overhead to illustrate his 
remarks. 

The Montezuma permit is granting the discharger considerably higher 
concentration of pollutants, then, are allowed to protect water quality. The 
first column of numbers are the numbers in the Montezuma Permit. The second 
column of numbers are the water quality objectives in our basin plan and in the 
California Toxics Rule. That is, those are the numbers we need to be at to 
protect water quality and wildlife resources in our water. And Baykeepers are 
particularly concerned that not only was the project allowed to discharge these 
pollutants that are already impairing the Bay, but they were given dilution 
credits, which means that they're allowed to use the Bay essentially to dilute 
their effluent down to levels that would theoretically meet water quality 
objectives. E.P.A. has noted that there's no basis for these limits, that this 
charter has not provided the fundamental analysis behind these limits. It's not 
contained in the permit. There's no explanation for the justification of 
dilution credits. E.P.A. also noted that the Regional Board did not use its 
standard state-wide implementation plan which is a document guiding permit 
writing for all other discharges in the Bay. 

As to the issue that this water is safe enough to drink, if we allowed the Bay 
to be as toxic as drinking water standards, we would have widespread ecological 
devastation. Drinking water standards are far far higher than those allowed to 
protect water quality. He also pointed to the fact that the project has changed 
at the eleventh hour in the regulatory process. After Baykeepers petitioned the 
Board to permit waste from the handling facility, the discharger now appears to 
be keeping all water on-site, or massive quantities of slurried water on-site. 
That is a whole new ball of wax that needs to be looked at through a new EIR 
process. 

Judy Goff, Secretary/Treasurer of the Central Labor Council of Alameda County 
stated that the Labor Council represents 125,600 Union members in Alameda 
County. CLB fully supports the action by BCDC to permit restoration of 1,822 
acres of former marsh land, Suisun Marsh land, using dredge material from the 
Bay. CLB supports the Montezuma project because it is critical to the Bay Area's 
dredging projects and therefore to the Bay Area as maritime industry, and the 
aggregate jobs and the economic prosperity of the area. The Montezuma Slough 
project provides the first large multi-user site for dredge material disposal in 
the Bay Area. Without these upland sites, dredging projects of all sorts ranging 
from new construction at the Port of Oakland to the smallest marina maintenance 
project are in serious jeopardy. The labor community is also sensitive to the 
critical environmental issues posed by the disposal of large amounts of dredge 
material. That is why was among the earliest and most enthusiastic supporters of 
the Sonoma Baylands Project, that which has served as a model and received 
nationwide acclaim. That is why CLB worked with all parties to search for other 
environmentally appropriate solutions to the dredging problem. That is why CLB 
has been a member of the Bay Dredging Action Coalition for the past ten years. 
Involvement started with the Central Labor Council by Ms. Goff's predecessor, 
and follow-up has now fallen to her. The Montezuma Slough Project will be the 
largest tidal wetlands restoration project in the Western United States. It will 
increase the tidal wetlands acreage in the Suisun marshlands by almost 30 
percent. It is consistent with the Long Term Management Strategy for dredge 
material by providing beneficial reuse of suitable dredge material. The words 
"toxic dump" are inflammatory and should not be used lightly in being applied to 
this project. This project is a sound example of an environmentally sustainable 
approach to dredging. She thanked the Commission for considering the perspective 
of working families in making its deliberation. 

Nancy Siedler noted she has a cabin on Montezuma Slough on Grizzly Island, for 
20 years. Her husband was a duck hunter and they have fished those waters, have 
eaten crayfish, which she did not think to do if this project is passed. She 
hoped that the Commission will act as guardians. This is a pristine, beautiful 
place. It really is paradise. It should stay the way it is. It shouldn't be a 
dump for "Chemically challenged waste." Contaminated waste. Don't do it. Keep 
this area beautiful. Keep it for everybody , for your children, for all time. 
It's gorgeous the way it is. It doesn't need anything more. 

Marshall Zavat, a sportsman that uses the Suisun Marsh, the Sonoma Napa Marsh, 
stated he has seen our wetlands dwindle. With that, we've seen water fowl 
dwindle, we've seen the salmon population go down. With wetlands restoration, 
we've now started to see it come back up. We've seen how it helps our 
environment and the ecosystem. I think if we let it go, nature is not going to 
take its course. It's not going to rebuild the Suisun Marsh. It's going to need 
our help to do it. The Corps of Army Engineers did the Sonoma Baylands 
approximately ten to 15 years ago. Three hundred plus acres. As a long time 
resident, just moved to Vacaville from Sonoma and Marin County, he was not aware 
of any toxic problem they've ever had doing that with that project. He felt this 
is very vital to our environment. 
Glenn Barker with Green Action, an environmental justice and toxics group stated 
that in August, Green Action came before the BCDC to urge it to help protect Bay 
water quality and to oppose the floating power plant on a barge that was heading 
toward the Bay with no environmental review. The Commission followed its mandate 
and did what was right, raising strong objections to that threat to water 
quality. That threat to Bay waters in our environment was stopped and we thank 
you for doing that. Today, Green Action is here to urge you, the BCDC, to uphold 
its mandate to protect our waters and to reject the plan to dispose what even 
the Port of Oakland calls "chemically challenged dredge spoils" into this marsh. 
This plan poses a serious toxic threat to water quality, water life, and our 
environment, and is an unnecessary and unacceptable gamble with a precious 
natural resource. If even the Port refers to the material as chemically 
challenged, that should be a warning that this is indeed a toxic threat. There's 
no place for Arsenic and Cadmium, Copper, Lead, Mercury, Nickel, Selenium and 
Zinc in a wetlands area. In addition, the risk of spilling toxic metal, lace 
contaminants which could reach the Delta, is a real risk and completely 
unacceptable. Also, the construction and operation of an industrial pumping 
facility at the site is an inappropriate use that will have an unacceptable 
impact on this sensitive area. As the marsh is a quiet and tranquil place, Green 
Action is also concerned that the steady stream of barges will destroy that 
tranquility. The large scale barge traffic, combined with the dumping of 
enormous volumes of toxic materials, will change the area forever and destroy 
its environment. Mr. Barker urged the Commission to follow the precautionary 
principle and not take a risk from which there is no going back. Approving the 
dumping of this toxic material will result in irreparable harm to a sensitive 
environment, a harm that is unnecessary. Even the company president, Mr. Levine, 
was quoted in the San Francisco article, admitting that the project can go ahead 
without use of the toxic dredge spoils, with only a five percent increase in 
cost. That's a small price to 
pay for protecting an invaluable environmental resource. 

Marcia Rautenstrauch representing a small group called Stop Montezuma, stated 
her group essentially does not feel the Suisun Marsh is any place for these 
"chemically challenged materials" in spite of all the reassurances to the 
contrary. She wanted to let the Commission know that she has received from 
different environmental groups around the area their opposition to the project 
as well. This says, "We oppose the Levine Fricke Montezuma Wetlands Restoration 
because we feel that its use of contaminated dredge materials poses long-term 
cumulative adverse threats to wildlife and the environment. And this is the 
Citizen's Committee to Complete the Refuge, the Le Rivieres, you may know, are 
long time environmentalists who have done a lot of good work, the Environmental 
Resource Center and San Jose State University, the San Francisco Bay Wildlife 
Society, Save Our South Bay Wetlands from Mountain View, Salmon Forever and the 
Humboldt Water Shed Council, the NRDC, Palo Alto, Ohlone, Audubon, Hayward, 
Citizens for Open Space, Alvarado , that's out of Union City, California, Native 
Plants Society, Santa Clara Valley Chapter, Sierra Club, Loma Prieta, and the 
Baylands Conservation Committee in Palo Alto. So it's not just a local issue. 
This is a valuable national resource and we need to protect it. And "three feet 
of somewhat cleaner cap," is not going to solve all the problems. This area, the 
Suisun Bay is on the 404D list for California. The water supply up there is 
already severely compromised with heavy metals, DDT, PCB's, Dioxins, and we 
should not risk the chance of compromising it anymore. There are already fish 
and water fowl consumption advisories for the people up there. Three-feet of 
cover material is not sufficient. Apparently Kestersons also had a capping 
design like this and most of us remember what happened at Kestersons, the 
unlikely became reality. 

There is also worry about the removal of the subdrain in this project. Mr. 
Levine spent many paragraphs in the EIR talking about the subdrain  to drain the 
boggy native soils, presumably from foundation. What's going to happen now? The 
Solano County Planning Commission gave him permits, although "further 
engineering studies performed by the applicant indicate that such subdrains will 
not be required." Why not? We oppose extending the construction window. 

Jonathan Wisnom, a resident of Birds Landing, particularly the Montezuma Slough, 
spoke in opposition to this project. Most of the issues have been raised, 
although curiously enough, no one mentions the suspended sediment in the 
slurried water. When you go home this evening, take two tablespoons of 
cornstarch, eight tablespoons of water, shake it into a mixture, let it run into 
a plate, and see the accumulations of the sediments. They do not all fall to the 
bottom and bind. These sediments are going to be released into the river and 
into the slough. Particulate sediment eventually will bind on the bottom of the 
river, the inlets and cuts that sustain the life in the marsh, and have negative 
effects on wildlife and plant and animals. The mention of the subdrain is 
totally bizarre. The purpose of the Environmental Impact Report is for the 
public to be aware of the possible problems the project may pose. The subdrain 
for the drainage of the slurried water has been eliminated from the project and, 
in turn, a plan has been devised to decant this water in ponds. Where is the 
analysis of this decanted water? It is open to the birds, to the critters, to 
the fish, and is highly likely could be toxic. This analysis must be made before 
the Commission can approve this project. A letter just passed around was 
submitted by a neighbor who owns a duck club adjacent to Mr. Wisnom, also urging 
that the construction window be followed for the preservation of water fowl and 
the animals in the area. Imagine using this much water on a daily basis to move 
solid material? Five million gallons of water a day decanted, re-used again, 
pumped out of the shallow groundwater aquifer, and accumulating the chemicals 
found in the sludge of the Bay. This is not good science and it would not be 
prudent of the Commission to approve this project. 

Steve Evans, Information Services Manager for the Ecology Center in Berkeley, 
and here to represent the Ecology Center's point of view on the Montezuma 
Wetlands Restoration Project. Like Save the Bay and the other environmental 
organizations here, the Ecology Center actually heartily endorse the idea of 
restoring wetlands in the Bay. It is a great idea. What is not a great idea and 
this just reinforces a lot of what has been said this afternoon, is the use of 
the noncover contaminated materials in this project. It is in fact a toxic dump 
masquerading as a restoration project and it is very disingenuous to be calling 
this a restoration project when in fact it has a lot of serious impacts such as 
the bringing of the barges up, the creation of an industrial site, and the 
sucking up of the aquifers. He urged the Commission to at least consider 
disallowing the contaminated materials from being used in this project. If it 
were really just a restoration project, we could accomplish the same thing for 
far less expense by simply breaching the dikes and letting nature take its 
course. It would cost millions less, it wouldn't have nearly the impact in terms 
of industrializing the area in order to achieve the effects that we're 
supposedly trying to do here. If we're concerned about the wildlife and so on, 
this really elaborate operation we're talking about here is likely to be very 
disruptive to the water fowl and so on. Mr. Evans handed in a petition signed by 
about 80 people, which read: We urge you to reject the Levine-Fricke Montezuma 
Wetlands Restoration Project because we believe its use of contaminated dredge 
materials poses long range cumulative adverse effects to wildlife in the 
environment. While we support responsible efforts to restore the Bay's wetlands, 
we do not believe Levine- Fricke's project is one of these. Using contaminated 
dredge spoils containing up to 65 non-pollutants in an otherwise clean 
environment, Montezuma would set a disastrous precedent in California 
environmental history. The high levels of salinity in these spoils and the huge 
quantities of fresh water required to clean them pose additional threats to the 
entire Delta water system. The Suisun marshlands compose ten percent of all of 
California's remaining wetlands and are a critical rest and refueling stop for a 
third of all birds migrating on the Pacific flyway. Suisun's unique mixing zone 
of the salty Pacific with fresh water of the Sacramento and San Joaquin Rivers 
also provides an important nursery for early life stages of over 120 fish 
species. Scores of rare and endangered plants and animals find refuge there. In 
this fragile ecosystem, Levine-Fricke seeks to restore 1,822 acres of the Suisun 
marsh with a contaminated dredge spoils from the Port of Oakland and other sites 
around the Bay. 

Bill Doll, a curator of small craft for the National Park Service, San Francisco 
Maritime National Historic Park, and member of the Traditional Small Craft 
Association, as well as a small craft cruising club addressed the Commission. 
There is a flotilla of historic boats that participate in an event that ends up 
at Douglas Slough, which is the little water opening there. From what Mr. Doll 
has heard, he opposes this operation going on there because it looks like it'll 
probably limit the use of carrying on this event. He hoped that the Commission 
would seriously consider his belief that this would not be useful operation for 
the public to still be permitted to use the waterfront. 

Ellen Johnck, Executive Director of the San Francisco Bay Planning Coalition, 
and also speaking today on behalf of the Bay Dredging Action Coalition stated 
she was submitting a letter on behalf of the Coalition for the record. The 
coalition is made up of Bay users, maritime industry, Port shipping lines, 
Marine terminal operators, several local governments, marinas, essentially a 
broad consortium of people and businesses that have grown up here on the Bay, 
are running businesses on the Bay, and want to do right by the Bay. Ms. Johnck 
stated her organization supports the project in light of the significant 
innovations and planning for dredge material management that have been carried 
out throughout the nation regarding the beneficial reuse of sediment since the 
early 80's. As environmental concerns and issues heightened over dredging in the 
past few years, what the Coalition has done is look at how dredging material can 
be recycled, basically reused. The concept really came to fruition here in the 
Bay Area with the Sonoma Baylands Project and the inception of what is known as 
the long term management strategy for dredge material disposal, which is a long 
term strategy for planning dredge material, developing disposal alternatives, 
and basically the theme is beneficial reuse. The Montezuma Project is the key to 
implementing the LTMS vision. The coalition has been working on this for 
approximately ten years now. The Montezuma Project started as a permit review 
and environmental evaluation eights years ago. What we are doing here in the 
innovation work, although beneficial reuse is really considered a very credible 
environmental restoration plan around the country, the LTMS and our vision for 
re-use is considered a success around the nation. What we need in order to go 
forward with beneficial reuse is capital infusion and environmental review. Our 
experience with testing over the years, as was heard from the Water Board, and 
E.P.A. has submitted their letters, is that this has gone through exceptional 
scrutiny. She encouraged the Commission to support this win-win project. 

Jim McGrath, Environmental Management from the Port of Oakland stated he was the 
person that used the term "chemically challenged." He acknowledge that this is a 
tough issue for the Commission, it's an emotional issue. Mr. McGrath apologized 
to all those affected about the miscommunications. This project is critical to 
the Oakland project. The Port proposes to take 400,000 cubic yards of wetland 
noncover and 2.6 million cubic yards of wetland cover and begin restoration of 
1,800 acres of wetlands. And indeed that's the objective, the restoration of 
wetlands. The Port of Oakland sat down with 13.5 million cubic yards of 
material, mud and sand, and tried to figure out how it could reuse virtually all 
of that material. Had one used a nomenclature of the good, the better, and the 
best, instead of "chemically challenged," then perhaps this would have captured 
what was going on a little better. The Port has 200,000 cubic yards of material 
that is only suitable for construction purposes. It shouldn't go back into the 
water, the Port won't let it go back into the water and the Regional Board won't 
let it to back into the water. The rest of the material is good and better. It 
is suitable for restoration. Now let's talk about how clean or dirty this stuff 
is and put it into a context. This material is way cleaner than the biosolids 
that are used and should be used, and should be recycled in California. We're 
looking at a recycling effort. We are looking at taking material and disposing 
of it in ways where the contaminants are at trace levels and they can be 
constructively reused. Those levels are substantially higher. You can see that 
in the letter. It's way cleaner than what was taken to Galbreth. The Port 
developed two, three bookcases worth of monitoring data of the run-off, of the 
sediment quality, and had initial testing to look at that. The Regional Board 
has copious records of that. It's way cleaner than that. And it's way cleaner, 
how clean is it? It's in fact clean enough to go to the ocean. In going back 
over the records, the Port didn't try to figure out where it could shovel this 
stuff, but tried to figure out how it could reuse it. In looking at 15 toxicity 
tests, a number of sub-lethal toxicity tests on the wetland noncover, none of it 
failed the toxicity tests. One of the 15 samples failed the sublethal test. 
Taking it to the ocean would defeat the purpose of the LTMS. 

Mr. Kolb introduced Dr. Khalil Abu Saba, a Mercury expert. 

Dr. Abu Saba stated that as an agent of the State, he spent his career fighting 
mercury pollution on San Francisco Bay. He wanted to give the Commission the San 
Francisco Bay Regional Water Quality Control Board, Planning and Policy 
Division, staff's perspective on how mercury cycling works, in particular with 
regards to wetland areas. 

About eight million cubic yards of dirt come into San Francisco Bay every year 
from the Central Valley. That essentially represents our background sources of 
mercury. Dr. Abu-Saba spent most of his time dealing with Process B, a 
controllable local source, especially in our local mining sources. What the 
Commission should be looking at is moving sediments around that are essentially 
representative of ambient conditions. One should understand that both through 
normal tidal exchange and through dredging and upland reuse projects like the 
one proposed today, sediments do get introduced to the marginal areas of the 
Bay. That is where mercury gets converted to methyl mercury. Methyl mercury is 
the form that moves up the food chain. The important thing to understand is that 
wetlands convert mercury to methyl mercury called "methylation." They also 
convert it back from methyl mercury to inorganic mercury, called 
"demethylation." When we look at wetlands, what we're really looking for is if 
the balance between the two result in high concentrations of methyl mercury or 
not. High concentrations of methyl mercury indicate high risk for bio-
accumulation. The point that we really need to understand is that, for wetland 
design, the current LTMS cover/noncover guidelines are consistent with our 
existent water quality objectives for protection of the Bay due to 
bioaccumulation. You're essentially proposing moving around ambient 
concentrations of Mercury and sediments. You need to understand that wetlands 
both demethylate and methylate mercury. We now have preliminary information 
showing us that there are areas of the Delta that appear to be net sinks for 
methyl mercury. This is areas in the Central Delta. And that references the 
CalFed Study which Dr. Sue Connick is one of the study directors. It's very 
preliminary information. This information does need to come out and get formally 
peer reviewed. We also have preliminary information from near field monitoring 
from Fairfield Suisun and of discharges in the Buena Slough. That's a slough 
where, again, the demethylation appears to out-strip the methylation and we have 
lower concentrations of methyl mercury. We want to see all our wetland projects 
to result in areas that are net methyl mercury sinks. And this poses a challenge 
to the Project Managers. What I want to leave you with is that, through our 
waste discharge requirements and through the mitigation and monitoring Plan, we 
do have the leverage needed to make sure that this wetland project ends up being 
a net benefit. 

MOTION: Commissioner Gus Morrison moved, seconded by Commissioner Hill to close 
the public hearing. The motion carried. 

MOTION: Commissioner Gioia moved, seconded by Commissioner Rippey to adjourn 
into committee. The motion carried. 

Chairwoman Kaufman explained to the public why she had to curtail the public 
comment to three minutes. The deadline for additional testimony in written form 
that anyone would wish to submit is 5:00 next Tuesday. Anything received by that 
time will be taken into consideration in the staff recommendation and will also 
be provided to the Commission. Anything received after that will not. 

Commissioner Rose inquired if ten percent of the material that is planned to be 
brought to the sloughs was of the noncover variety and how much noncover 
material will be dredged and taken elsewhere. 

Dr. Lipton clarified that the ten percent of Phase I, amounts to about 4.5 
million yards. Ten percent of that will be noncover. The rest of the noncover 
material that the Port of Oakland has to deal with would be a question that Jim 
McGrath could better answer, but it will probably go up to a landfill which, 
again, from most people's perspective in the big environmental picture is far 
more damaging than to truck and haul off, or it could possibly go under 
construction fill. 

Mr. McGrath noted that it is necessary to use approximates when talking about 
dredge material because the strata change. The best current estimate of the 
amount of wetland noncover is about 800,000 cubic yards. It may be a little 
more. It is probably less. When the Port of Oakland dredged the 42-foot project, 
it estimated a million cubic yards had to go to Galbreth. It came out with 
700,000-cubic yards, so the Port expects it to be about 800,000 cubic yards. The 
amount intended for this project is four hundred to 440,000-cubic-yards. 

The Port has a number of places for the remainder, all of them in their analysis 
have more adverse impacts. There is a drying site at Berth 10 that can 
accommodate about 200,0000-cubic-yards a year to dry. That can then be taken to 
a landfill. This material is clean enough that they don't really like it in 
landfills, but that's sort of a fall back option. Some of the commentors have 
mentioned the Mare Island Project site. That project is reuse of a base. It is 
ponds that have been used for that purpose in the past. The Port is quite 
hopeful that they would come on site because that would have a substantially 
less of an air quality impact than hauling it to a landfill. So those are the 
options at the moment. 

Commissioner Gioia asked the Commissioner who is on the Solano County Board of 
Supervisors, to provide maybe just any brief kind of background on this issue as 
it was discussed at the Solano County Board of Supervisors. 

Commissioner Kondylis stated that maybe ten or 12 years ago, if somebody had 
told her about this project, she would have said, "Boy, I wouldn't want that in 
my back yard" and done the whole thing. But given the history of the area that a 
Dow Chemical Plant was sited for that project and defeated a long time ago, the 
degradation of the Suisun Marsh mainly for the salinity that need to restore 
wetlands, she said she finally came around and the Board of Supervisors came 
around that if this could be done in an environmentally safe manner, and there 
have been tons of questions all the way through the process, and that it 
provided a net benefit not only to the people of Solano County but to the Bay 
Area, that it was worth going through. And since the Board went through the 
environmental review process, those there had to read it, which is not the case 
at BCDC. Commissioner Kondylis came to the conclusion that, although still 
having a few questions, too, about the long term monitoring and some of the new 
information, on balance, it seems to be something that's going to be beneficial 
for everyone. 

Commissioner Gioia addressed staff with the following questions. One of the 
issues that's been identified for further analysis that's going to be presented 
to the Commission is the construction window in which the report says the 
Commission must determine whether an extension beyond the work window of April 
15th through October 15th is warranted for this project, whether some portions 
of the project such as grading would be less disruptive to wildlife use of the 
marsh between October 15th through April 15th, other than construction 
activities, and so forth. So his question is, what additional analysis was the 
staff intended to do to more fully explore what impacts would occur if the 
construction window were extended, and obviously how long it's extended may be 
an issue as well, whether it's a few days, a few weeks, a few months, and what 
impact those would have. And also to the Port of Oakland, what alternatives have 
they looked at if construction could not be complete? And have they done a fair 
amount of due diligence to determine that there are other ways to handle this so 
that the construction window is not extended. So first from the Staff and then 
from the Port of Oakland. 

Mr. Batha noted that staff has discussed this with the applicant and the 
applicant has agreed to limit the major construction to the regular work window 
between April 15th to October 15th. That would include all pile driving, major 
grading and the like. They would like to be able to place dredge materials 
throughout the year. And staff's analysis was going to be discussing it with the 
Department of Fish & Game and the Suisun Resource Conservation District. Those 
discussions have begun. Some of that testimony was heard today. Preliminary 
indications are that they don't think the actual placement of dredge materials 
on the site throughout the year would pose the problems. They were more 
concerned about the grading and the pile driving. 

Commissioner Gioia asked, when given the alternatives in looking at the 
construction window issues, when the Commission has to make a decision, will 
they have the analysis complete at that time. 

Mr. Batha indicated that the Commission will have almost certainly a 
construction window requirement that will specify what activities can occur 
when. 

Mr. McGrath explained that there are a series of windows on the project. The 
most difficult one to manage around is the air quality limitation which requires 
the applicant to stay under 100 tons a year of NOX. It doesn't allow, unless a 
way is figured out to re-power tugs and lower their NOX emission, it doesn't 
allow the applicant to construct year-round. The Port is trying to figure out 
ways to expand that. If the project is bid and dredging equipment is available, 
such that that doesn't further restrict the ability of someone to construct it 
in a cost-effective manner, if he has other work to do in the Bay Area that he's 
working on, it probably would have no effect. So at the best case, it would have 
no effect. At the worst case, it might put another restriction on the contractor 
and significantly increase the price of the project. And, while what the Port 
can predict in terms of cost increases are relatively modest in overall price. 
If those begin to add up or really effect the bidding climate, it may affect the 
practicability of the alternative. And as pointed out, virtually all of this 
material can go to the ocean. The Port is seeking ways to make it be practicable 
to restore wetlands. Mr. McGrath said he couldn't tell where the precise 
boundary is where the projects cost get so great that that's not possible, but 
five million here, ten million there, 20 million there, and it would probably 
certainly happen. 

Commissioner Bruzzone said he had a couple concerns. The first has to do with 
the legal challenge with regard to whether or not the NPDS is applicable and has 
asked the Commission's legal representative if a determination whether or not it 
applies was made, and, in paraphrasing, whether or not the Army has decided for 
certain that the clean water regulations apply here. He wanted to make sure that 
no matter what the Commission does, that it has thoroughly looked at the legal 
question here, reviewing the process and whether it feels comfortable as a 
Commission that it has been thoroughly looked at. 

Commissioner Bruzzone asked Dr. Lipton the following question: "You did indicate 
that all of the appeals had ruled in your favor. Were they ruling on the process 
or were they ruling on the applicability of the NPDS arena as applied to this 
project?" 

Dr. Lipton replied that they were ruling on the EIR and the adequacy of the EIR. 
The appeal to the Water Board on their permit in terms of the 404 vs. 402 NPDS 
was appealed to the Board, and that has not been ruled on. The Water Board 
lawyers, as well as the Corps of Engineers legal staff, and as well as the 
E.P.A. have all written strong letters in support of that decision that it falls 
under 404, not an NPDS. 

Commissioner Bruzzone noted that there should always be an exit strategy. What 
if something went wrong and there was a breaching of that inner containment of 
the material? What is the strategy developed to protect the groundwater and the 
surrounding area if it should not work out. 

Dr. Lipton indicated that there are contingency measures all throughout that 
thick document that covers every single aspect of things that could go wrong, 
even though most people don't think it will ever go wrong, but in that 
particular case, if that did happen, in the unlikely event that that would 
happen, you can dike that off. You can bring in more clean cover sediment to 
cover it up. You can limit the tides coming in. There are different actions one 
can take in terms of remedial measures. And in terms of contaminant and 
environmental impairment, that's what will be covered under insurance and 
additionally there will be financial assurances for all the monitoring closure. 

Referring to the economics of splitting off the noncover from the cover, 
Commissioner Bruzzone asked what happened economically to the project if only 
the former be allowed and not the latter. Could another site, another way be 
devised to handle the noncover material, and what does that do to the economics 
both for the Port of Oakland and for this project. 

Dr. Lipton explained that from the environmental perspective, that would be a 
sad thing to have happen to this because this is the most environmentally 
protective way to deal with it. In terms of the economics and the restoration, 
this project would not be able to restore the existing degraded site to tidal 
wetlands as fast because taking the non-cover helps to get more cover clean 
sediment to cover because whenever noncover is taken, it's in the permit 
conditions very explicitly. The Port of Oakland, Jim McGrath, could also confirm 
this, that in terms of the economics of the project, the restoration would just 
happen more slowly. It certainly wouldn't be a benefit either to the wildlife or 
financially for the project. In terms of the cost for the Port of Oakland, 
everyone has examined that this is a very cost-effective way to do it. And it's 
usually much more expensive to haul things to a landfill or to dry it out some 
other place. It would not kill the project, but it would be a mistake. 

Mr. McGrath added that if the material in question, is suitable for ocean 
disposal, and if it's not desired here, the Port would apply presumably for a 
permit for ocean disposal of the material. That could be somewhat cheaper. The 
alternative to that would be to take the material to an upland environment and 
take it to a landfill or try to reuse it in a construction project. That latter 
would cost substantially more money, $12-14, maybe $16 million. And that's a 
pretty good price hit, although with the benefit cost ratio the Port has, it's 
unlikely to hit the benefit to cost ratio. We might have to go back to Congress 
for additional funding. But in a more general principle, one of the things that 
one should think about is, when a dredger hits material that doesn't meet the 
standard for ocean disposal, yet it is clean enough for reuse in a wetland, that 
happens about four or five percent of the time. They're quite motivated and they 
have the capacity to pay substantial amounts. The Port pays about $30 a cubic 
yard to $40 a cubic yard to take that material upland to a landfill. And it's 
not dirty enough to go there. If you take it to a wetland where you cover it 
with four or five times as much material as here, it in effect subsidizes the 
cost of upland wetland re-use of the cleaner material. And you wind up with a 
way of making upland wetland reuse more practicable, which is the concept behind 
the Levine project. 

Commissioner Carruthers had a question for Dr. Abu Saba and Dr. Lipton and that 
is how is the monitoring used, what assurances are there that the monitoring 
will protect water quality and will prevent these bad things happening, and how 
is the project set up to respond to whatever negative information the monitoring 
might reveal. 

Dr. Abu Saba explained that through the waste discharge requirements, there is a 
legal authority to look at their monitoring results the same, is the project 
acting as was intended, for instance. The fear that's been raised is, if you put 
the noncover material deep and cover it, it's clean material, will that stay in 
place? Now their project designers have gone through extensive analysis to say 
we're assured that that's not going to happen. The mitigation and monitoring 
plan comes in and looks at that over time and says, "Is that true?" And it's our 
job as regional board staff to look at the dead end and say, "Now that the 
project is in place, as they've gone forward with implementation, is it behaving 
the way we expected?" And if we look at the environmental monitoring data, if we 
look at methyl mercury concentrations in sediment and I look at methyl mercury 
concentrations in water, and I go, "Uh oh, Doug, I think we have a problem 
here," now it's time for Doug to enact some of these contingency plans. "Doug 
what are your contingency plans?" 

Dr. Lipton agreed with that statement and said that the contingency plans are 
all spelled out in here in terms of the performance criteria that must be met in 
terms of water quality, in terms of sediment quality, in terms of engineering 
elevation controls and evaluations of whether the channels are getting close to 
the non-cover, evaluating the crayfish, all those aspects of the monitoring are 
clearly laid out. 

Dr. Lipton, as an example, explained that in terms of water quality, the 
settling time in the settling ponds can be lengthened to allow the suspended 
sediment to fall out. In the noncover cells, the water is filtered through 
Geotextile Fabrics to ensure that the suspended sediment stays in. So there's 
additional measures that can be done to enhance that. It goes on that if we 
still fail that we can add iron salts that can help precipitate out and enhance 
the settling of clays and all the types of soils that might stay in the water. 
You can add very simple things. The mobility of most of these metals is enhanced 
under oxidizing acid conditions. There is limestone around so that just in case, 
even though all the evaluations look like the stuff that acidify in the type of 
pumping and water movement that's being done, limestone can be added to 
neutralize. And so all that is spelled out here. There is a very detailed, 
painfully long table that has all the monitoring criteria, contingency measures, 
the reporting requirements. This may also answer Commissioner Rippey's concerns 
in terms of how often we're going to be providing these things. 

Dr. Abu-Saba noted that the Montezuma Project is similar as designed to the 
wetlands and marginal areas of the Bay in that you're looking at ambient 
sediments moving in and out of a marginal area. The difference between the 
Montezuma Project and many of the other marginal areas of the Bay is that we 
actually have control, regulatory control over the way that project is handled 
and designed. So unlike all the other marginal areas of the Bay where mercury 
methylates and demethylates, here's a place where we can look at the environment 
and say, "Wait, this doesn't look good. Now you go do something." 

Commissioner Ross noted that his review of the record would indicate that this 
has been a matter of contention all the way along. No matter what your form is, 
you're opposed. He said he would find it quite helpful and assumed the applicant 
had the chance to review the opposition which came in yesterday and today that 
advances the argument by Mr. Gafney, Mr. Lewis and also from the Stop Montezuma 
communication that raised the issue about that there are changed circumstances 
where there are actually changes in the project that would at least lead to the 
argument that a supplemental or subsequent Environmental Impact Report is 
required. Commissioner Ross said he would find it very helpful that there be a 
response from the applicant on that issue as to why there aren't change 
conditions under which the project is being carried out, or changes in the 
project different than that that were analyzed in the final Environmental Impact 
Report. This would also be applicable to Mr. Lewis because from Save The Bay's 
side, if there are changes in the project or what is being carried out that 
those are also clear on the record. This would be something that is very 
important for the Commission's decision, whether or not we're going to comply 
with CEQA. 

Also, in one of those letters the claim was made about an inadequate monitoring 
program and there was mention of environment impairment insurance. It would be 
helpful to see an example of the actual text of that document because that seems 
to address the concern of the exist strategy. 

Dr. Lipton stated he could comply with all these requests to address those 
issues. Some of them here verbally, but they could also be summarized in text. 

Commissioner Oliver said that with regard to noncover material she would like to 
see some written documentation, even to the issue of fail safe, "What do you do 
in case?" It was explained quite well, but to go through the document that was 
prepared and given to the Commission, it didn't jump out as it did when it was 
on the slide. She would like to see some further information on what the 
applicant would do in case there was a hazard and the response, and the details 
of who would respond. 

Dr. Lipton promised to provide all those details and issues to the staff. 

Commissioner Oliver, referring to the discussion on mercury, to address the 
mercury issue in the same way. 

Dr. Lipton asked to address the mercury issue here now briefly. In terms of some 
of the recent materials that were submitted to BCDC and also stated by some of 
the opponents, and clearly there was a letter that was provided from a 
researcher at U.C. Davis that discussed about the potential concern, and the 
words were "could" and "concern," and make it clear that the concentrations that 
he indicated in his letter that are warm and the ones that he's concerned about 
are ten times higher and twice as high as the ones we're taking. He got the 
information simply from the Monitoring Plan, so it appears like maybe he doesn't 
understand where we're putting the sediment in terms of the overall placement at 
the bottom of the marsh, four feet below the mean high water and lower than the 
tide line. 

Additionally, there was a comment from one of the opponents that said that the 
Regional Boards asked BCDC explicitly not to permit any restoration projects. 
That letter is from the Regional Central Valley Water Board, August 1, actually 
to the Commission regarding the LTMS Plan, and so Staff responded. The quote is 
on the fifth page. It says, To prevent exacerbation of current Mercury problem, 
wetland restoration projects using dredge material should proceed with caution 
until the Methylation process is better understood. Without a doubt, all the 
agencies and regional experts and scientists would agree that we all are 
proceeding with caution on this project. 

Commissioner Cutler had a question for staff related to the staff report under 
"Issues Raised," number 5, whether the project is consistent with the Suisun 
Marsh Protection Policies on Land Use and Water Management. She said she'd be 
just interested in some further explanation either now or later as to whether or 
not it is consistent, and if it is not, under what circumstances it would be 
deemed acceptable for BCDC to accept this project. 

Mr. Batha noted he would do it with staff's recommendation. 

Commissioner Johnson addressed her question to Dr. Lipton. In her understanding 
from the testimony, that the material will be identified before loading it onto 
the barge as either cover or noncover, and then taking it to the offloading site 
and tested, would there be any testing done before it's loaded onto the barge to 
be sure it doesn't contain more than the acceptable level of contaminants. 

Dr. Lipton replied that all the testing has been thoroughly vetted already at 
the Port of Oakland and they're doing some additional testing of areas at the 
Port, that they're going back and refining what the quality is. And so those 
results will be available and reviewed by the agencies. Before it goes on the 
barge for the site, it will be confirmed at the site. The good news for 
everybody is that the E.P.A.'s recent work in evaluating monitoring out at other 
disposal sites is that you get what you pay for, essentially, all the monitoring 
data shows that. It showed it at Sonoma Baylands, it showed it at the ocean that 
these concentrations, the testing, the thorough testing that's done by the Ports 
and the Corps successfully found the concentrations and ranges. 

Commissioner Kondylis noted that in the old days it used to be that the solution 
to pollution is dilution. And if anybody remembers those days, if you add enough 
water to something, it reduces it to a point where it's acceptable, even though 
the same amount of stuff is going out into the environment. She asked if her 
understanding was correct that at all of the sites, these octagons, or whatever, 
are going to be tested and that's going to determine whether the dredge material 
is either cover or noncover. And if it's designated noncover, it'll stay that 
way until it gets up and gets put into a cell. It won't get mixed with other 
stuff, with cleaner stuff, and at the other end come out saying it's cleaner 
than it was coming in because it would be diluted by cleaner stuff. 

Dr. Lipton replied this will not be done. The applicant is keeping the noncovers 
going in as an understanding of what that sediment is and understanding the 
question, and then the other cover sediment gets put on top of that. 

Commissioner Kondylis stated that when you take something dirty and mix it with 
something clean, it becomes cleaner. So you could theoretically take a little 
bit of bad stuff, the challenged stuff, mix it with clean stuff, and by the time 
it got up to the Montezuma Wetlands, it would be clean enough, but the applicant 
is not going to do that? 

Dr. Lipton explained that if he could take that question a little further, is 
that Phase I, which is the noncovers, ten percent of that total 4.5 million 
volume, if that's mixed in, it would be cleaner than what's in Suisun Marsh now. 

Commissioner Kondylis agreed and said that her point is that for some reason 
it's better to take the bad stuff and contain it in these cells than to mix it, 
which might have happened years ago, to make it cleaner, more of it, but 
cleaner, to make it acceptable, and then have it spread all throughout the 
environment. 

Dr. Lipton agreed that that's the best way. That's how it was done in the 70's 
and 80's through numerous wetland restoration projects. Actually, all throughout 
the nation, there's 34 projects that have used dredged materials, much like 
Muzzies Marsh that took the sediment where they didn't distinguish between 
cleanest and the next clean. 

Commissioner Messina indicated he would like to comment on this question of 
whether this should be governed by an NPS permit or not, or by a different 
section of the Federal Clean Water Act. It is the Federal Clean Water Act in 
either case. This is a lawyer's question and so he asked their attorney to tell 
us what to do. Just to be safe, we consulted with Federal E.P.A. because they 
are, you might say, our overseer on this issue, and they had the same view. The 
Corps of Engineers reads the law the same way also. They could all be wrong. The 
ultimate decision maker in terms of our process is the State Water Resources 
Control Board, which has this before them now on an appeal. 

Mr. Kolb commented on the slippery slope argument that if this project is 
approved that it automatically approved that it automatically means that any 
similar project has got an automatic yes. He does not see that. For one thing, 
there has been several years of testing and development of this project, and he 
can not imagine somebody would come in and say, "I want a permit by Tuesday for 
something just like it." It isn't like that. These projects inherently require a 
lot of analysis and a lot of engineering and biological work to do. Mr. Kolb 
said he did not know of any others in the pipeline in Suisun Marsh for the 
foreseeable future. If this is done further, it might be Hamilton Field. So this 
notion that if the Commission approves this one, there's a whole bunch more, has 
no validity. 

Commissioner Morrison addressing staff, stated that some time ago, last year or 
maybe the year before that, the Commission dealt with the South San Francisco 
project where they were going to cap some contaminants. How is this different 
than that? 

Mr. McAdam explained that the primary difference is that that was a project that 
was going to use fill in San Francisco Bay to do this project. This project is 
taking a diked area where the policies that BCDC would have applied to Bay West 
Cove, this particular site, don't apply to this one because it's not Bay fill. 
It's in essence taking a diked area and returning it to tidal action. 

Commissioner Kondylis referred to a place called "White Slough" that used to be 
a subsided airport. And in 1981 or '82, the dikes were breached by storms. It 
was allowed to fill in naturally. But the kind of stuff that's in the ground 
there before it started filling up was really toxic. Now after 15 years, it's 
all been sedimented in, it's got natural sloughs and channels. Is there any 
evidence that any of this really bad stuff that's buried underneath, that any of 
that is leaching out? She wondered if there's any information on that or if 
staff could get that because it seems, if that could happen, then the chances of 
anything happening at Montezuma Wetlands with material that's not nearly as bad 
as stuff dumped off of planes onto the ground. 

Mr. Batha indicated that the only site that he was aware of like that in the 
White Slough area was a former land fill that was pretty informal and BCDC 
instituted several measures in cleaning up that site, to try to cap that site, 
and prevent a deterioration of water quality. 

Commissioner Kondylis said that was on top of what was an airport called Night's 
Airport. She said she has been told that it's one of the most productive 
ecosystems in the Bay Area now, even with the dumping of fuels and all kinds of 
things over the years. 

Mr. Batha agreed that it is an incredibly productive ecosystem, but said he had 
not heard any or seen any analysis of if there's been any leaching of some of 
these toxic materials that were formerly at the site. 

Dr. Lipton wanted to add a little bit of perspective to that. Essentially that's 
one reason Hamilton is going to work, there are existing contaminants even there 
and portions of the site that are higher than the noncover proposed to be taken 
out at Montezuma. And capping and covering contaminants is certainly one method 
that works, and certainly as a scientist that's worked throughout the Bay on 
numerous really contaminated projects, that typically when you look at 
concentrations that are much higher than what were taken from Port of Oakland, 
the Port water, the water that's around the soil, it doesn't have a lot of 
contaminants in it that leach. 

Commissioner Rippey asked that before staff comes back with a recommendation and 
an analysis, could they as much as possible clarify all the conflicting 
information heard today about the contamination issue. Maybe they are not going 
to find a magic bolt to solve it, but if it could be put in a form that the 
Commission could grasp a little better, and several other speakers have 
mentioned that, including the newer information that may be available from U.C. 
Davis, if staff could capture that in one section in order to get a better 
understanding of the various standards that the Commission is to apply here. He 
would also like to see some additional clarification of the question raised by 
Commissioner Ross, particularly regarding any new or more recent changes to the 
project that might raise some CEQA concerns with a special focus on the 
groundwater pumping. Commissioner Bruzzone mentioned separating out the pro's 
and con's of the viability, both economically and ecologically if contamination 
or noncover and cover vs. all "just clean materials" it would be interesting for 
the Commissioners to see the options available to the Commission, even if Dr. 
Lipton has made a strong presentation as to why it's important to include the 
ten percent. The Commission needs to see the options and what impacts excluding 
those materials might mean not only to the Port, but to the project and to 
future projects. Commissioner Rippey also asked for staff to analyze the impacts 
to the LTMS Plan that's in place if this project is not approved, or if the 
contaminated materials are not part of the approval. And then the last thing, it 
would be important to know if there are any growth inducing impacts, not to 
industrialization of the area, which is hard to know and has been raised as an 
issue for many years, but to the marsh with the rehandling facility if that 
remains in operation after the project is in place, if there are any impacts 
that might be foreseeable for the marsh from the activities of this project over 
the long term. If this sets in place sort of an impetus for continuing with 
further type projects in the marsh, even if there aren't any on the horizon now 
because of the economics of putting it in place. Those are some issues for staff 
to analyze a little more in their report. 

Commissioner Kondylis wanted the Commission to know that, as a result of this 
project, the Board of Supervisors is committed to take all of the rest of the 
industrial and rezone it back to Ag because they don't want it to be an 
industrial area. The action hasn't been taken, as it takes a long time to change 
a general plan. The other thing though is, she wished staff would also look at 
the side of the beneficial uses of the re-used dredge material for levee 
restoration and those kinds of projects in the Delta. Because of the failure 
rate of the levees, it has a lot of impact not only on farming, but on water 
quality in the whole San Joaquin Bay Delta area. She said she did not know what 
the impacts would be if they didn't have those materials to do that kind of 
levee work and repair. 

Commissioner Bruzzone referred to a note delivered to him which he is supposed 
to read. Friends of Suisun Marsh have filed a second complaint in Solano County 
regarding the change in projects. 

He commended Commissioner Rippey for the way he captured a lot of the 
Commission's concerns. He asked that the staff consider, like in a normal 
contract, that there be the due diligence that, or at least acknowledge the 
results of all this legal review. In other words, whatever decision is made, 
that it be subject to what the courts decide should they decide on something 
with regard to the project. 

Dr. Lipton said he could respond to that in terms of the legal issues. He would 
also like to address this issue that his project has somehow changed because 
there have been some statements that have left the Commission with the 
impression that there's been some major changes. 

Commissioner Rippey interrupted to say that he was not charging that that has 
happened, but that the Commission had heard conflicting information and he would 
just like the staff to clarify the CEQA process so that the Commission knows 
that they are proceeding on solid ground, so to speak. 

Dr. Lipton said he appreciated that and thought his lawyer actually could 
address the CEQA issues. It's important that the complaint against the EIR is 
done. 

Mr. Travis noted it would actually be helpful for the staff to have this on the 
record so that staff could incorporate it into the report. 

Jennifer Hernandez, legal representative of the project applicant and 
representative in the CEQA lawsuit made the following remarks: There have been a 
couple questions about the CEQA process and its status in litigation. First, the 
time for challenging the Appellate decision at the California Supreme Court has 
come and gone. And so that decision is final. And the EIR for the project is 
valid. That was the trial judge deciding that the county had "bent over 
backwards" to comply with CEQA and the Appellate Court agreed. The project 
opponents have, in fact, filed a second CEQA lawsuit against the use permit. The 
same allegations are made. We'll be proceeding to dismiss those or try to 
dismiss those in Superior Court because it is effectively the same lawsuit 
again, also making the same allegations against the same EIR. The issue of 
project changes between the draft and final EIR was specifically addressed by 
the Court, and the Court found that any project changes made were done in 
response to agency comments to improve the environment. And none required any 
additional CEQA review. In fact they were all beneficial changes. There were a 
couple other questions, but I think those were the main ones and I'm glad to 
answer any further questions about the legal status of this matter. 

Dr. Lipton explained that from a technical perspective, he could address the two 
changes that seem to have been voiced a lot here by the opponents. One was the 
subdrains. The subdrains was a geotechnical issue in terms of settling the site. 
Additional geotechnical evaluations have shown they're not needed. The subdrains 
were never never for dewatering the dredge sediments that we're putting in to 
move water through that. And secondly, the rehandling facility, the settling 
ponds that will be used to dewater the clean sediment uses a portion of the 
water and, in concert with the EIR that says to maximize and recycle as much as 
possible, the applicant is not going to discharge water from the rehandling 
sediment cells that takes a fraction of the sediments and a fraction of the 
water. Instead, they will evaporate it from those cells and recycle it on-site 
for construction purposes in concert with everybody's interest to recycle and 
the Water Board Permit.