Judge to Decide If San Francisco Bay Salt Ponds Are Protected US Waters

Environmental groups and California sued the EPA over its finding that the Redwood City Salt Ponds south of San Francisco are not considered “waters of the United States” protected by the Clean Water Act. (Photo by Kenneth Lu, 2013 available via Flickr)

SAN FRANCISCO (CN) — A Justice Department lawyer urged a federal judge Thursday to uphold the Trump administration’s finding that vast salt ponds slated for redevelopment along the San Francisco Bay are not protected “waters of the United States.”

“This isn’t in any way, shape or form resembling the tidal environment that it used to be in the early 1900s,” Justice Department lawyer Andrew Doyle argued in a telephonic hearing Thursday morning.

California and a coalition of environmental groups sued the Environmental Protection Agency one year ago, challenging the agency’s March 2019 finding that the 1,365-acre Redwood City Salt Ponds south of San Francisco fall outside the jurisdiction of the Clean Water Act.

The EPA’s decision deprives California of the right to review redevelopment plans for the site to ensure they comply with state water quality rules. It also means California cannot require a potential development project there to include wetlands restoration, public recreation access or other conditions related to water quality.

The area was converted into a salt extraction site starting in 1901 and further developed over the next century. Cargill Corporation, the nation’s largest private company, acquired the site in in 1979.

In 2009, developers proposed building 12,000 new housing units on the site. Amid opposition from environmentalists pushing for wetlands restoration of the area, developers withdrew that proposal in 2012.

In November 2016, the EPA’s Region 9 office in San Francisco issued a draft decision finding 1,270 acres of the salt ponds are “waters of the United States” because tidal channels within the site were part of traditionally navigable waters of San Francisco Bay before the Clean Water Act was passed in 1972.

In March 2019, the Trump administration’s EPA reversed course, issuing a final decision that the salt ponds are not “waters of the United States” because they were converted to fast lands — a legal term for land subject to just compensation for government taking — before 1972.

During a hearing on dueling motions for summary judgment Thursday, California Deputy Attorney General Tatiana Gaur argued the EPA failed to justify its abrupt about-face despite previously requiring dredge and fill permits at the site that are exclusively for areas protected under the Clean Water Act.

“Those permits can only be issued for discharges in the salt pond if those salt ponds were waters of the United States,” Gaur argued. “That was the position of the agency.”

Defending the EPA’s position, Doyle told U.S. District Judge William Alsup that March 2019 was the first time the agency took an official position on whether the salt ponds are considered protected U.S. waters.

“No decision was made in reference to those permits,” Doyle argued.

Representing Save the Bay and other environmental groups, attorney Eric Buescher of Cotchett Pitre & McCarthy said the EPA committed a clear legal error in finding the salt ponds are “fast lands” because fast lands can only be dry upland areas that are “above the high-water mark.”

“The record clearly shows the site was and is at intertidal elevation,” Buescher said.

Upon prodding by Judge Alsup, Buescher acknowledged he could only find cases in which courts said sites above a high-water line are considered upland and not subject to Clean Water Act jurisdiction. He could not cite a case in which a court found areas below the high-water mark can never be considered upland. 

“If we were to go there today and break open the dike that separates the pond from the bay, which way would the water flow?” Aslup asked.

“It would ebb and flow in each direction,” Buescher answered.

Doyle countered that no court has established a “bright-line test” for what is considered “fast land.”

“It’s a site-specific inquiry,” he argued.

Doyle said the EPA made its decision based on findings that the salt ponds don’t import water from the bay except in very limited circumstances.

Representing real estate developer Redwood City Plant Site, attorney Tom Boer of Hogan Lovells told Alsup that bay water has not overtaken the site since salt beds were constructed in 1951. However, he acknowledged that “pickle” — mostly evaporated water containing salt — did flow into the site through a transbay pipeline over a period of years and as recently as 2011.

“What you’re telling me is after the CWA, water from the bay came into these pools through a pipe,” Alsup said.

“It came into one cell at the salt site for the quick dissolve operation,” Boer replied.

After about 70 minutes of debate, Alsup took the arguments under submission and said he would issue a ruling “in due course.”

Other plaintiffs in the lawsuit include San Francisco Baykeeper, Committee for Green Foothills and Citizens’ Committee to Complete the Refuge.

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