October 15, 197053 Ops. Cal. Atty. Gen. 285

Question from Melvin B. Lane, Chairman of the San Francisco Bay Conservation and Development Commission:

Does the commission have authority to adopt a regulation (and issue permits pursuant thereto) which would allow Bay fill for non-water-oriented uses if the applicant creates as much new bay surface as would be removed by the fill and the Commission determines that the proposed use of the new fill would not adversely affect the public's enjoyment of the bay?

Section 10445 (a):

"When a project in any area not designated for a priority water related useinvolves both placing of fill (including pilings and structures built on pilings) and also enlarging of the Bay by extracting materials (including the removal of piers and structures built on pilings), then both the extracting of materials and the placing of fill must be consistent with all relevant San Francisco Bay Plan policies except that if the proposed fill, including the area to be covered by structures built on pilings, does not exceed in area the proposed addition to the Bay surface due to extraction of materials (including the removal of piers and structures built on pilings), then the fill may be used for any purpose, whether or not water-related, that does not adversely affect enjoyment of the Bay and its shoreline by residents, employees, and visitors within the fill area itself or within adjacent areas of the Bay and shoreline."

The conclusion is:

In light of the legislative directive, with the exceptions noted in this opinion, thatfurther filling of San Francisco Bay be limited to fills for water-oriented uses, it is our conclusion that such a regulation would be contrary to the Commission's enabling legislation and therefore invalid. Pursuant to this conclusion, it follows that permits may not be granted by the Commission for projects which would employ the concept of "replacement fills.”

"The question of the validity of proposed section 10445, even assuming it couldbe applicable only to the San Francisco Port, remains a question of construing the McAteer-Petris Act which is a part of the laws of this State. We have found nothing in the Burton Act which sets forth a special rule for the San Francisco Port in this regard. This conclusion is reinforced by the rule that the McAteer-Petris Act is in effect an amendment of all tideland grants in San Francisco Bay, with the resu lt that grantees must comply with its terms. Peo. ex rel San Francisco Bay etc. Comm'n v. Town of Emeryville, 69 Cal. 2d 533, 549 (1968).