San Francisco Bay Salt Ponds Are Protected US Waters, Judge Rules

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 through Flickr | https://www.flickr.com/photos/toasty/8771779894/)

SAN FRANCISCO (CN) — The U.S. Environmental Protection Agency misapplied the law and its own regulations when it determined last year that vast salt ponds slated for redevelopment south of San Francisco are exempt from Clean Water Act protections, a federal judge ruled Monday.

The EPA said it relied on Ninth Circuit precedent to find the Redwood City Salt Ponds are not protected “waters of the United States,” but the agency also argued the case was “unique,” unprecedented and that the court should defer to its expertise.

In a 21-page ruling, U.S. District Judge William Alsup found those two arguments appeared to contradict each other.

“Either there is precedent or there is not,” Alsup wrote. “This order holds that there is precedent and that EPA headquarters misapplied that precedent.”

The state of California and four environmental groups sued the EPA in September 2019, challenging the agency’s March 2019 finding that the 1,365-acre Redwood City Salt Ponds fall outside the jurisdiction of the Clean Water Act.

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

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 a statement Monday, California Attorney General Xavier Becerra praised the ruling as an important victory for safeguarding clean water in the Bay Area and communities across the state.

“And it’s a good reminder to the Trump administration that it can’t use the San Francisco Bay as its political playground,” Becerra said. “The EPA can’t ignore its own scientists and come up with an arbitrary rule that opens the door for development of a vital ecosystem.”

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 solid upland subject to just compensation for government taking — before 1972.

Alsup heard oral arguments on dueling motions for summary judgments in the case in September.

To guide his decision, Alsup looked to the same Ninth Circuit case that the EPA said it relied on in making its determination. Curiously, the 1978 decision in Leslie Salt Co. v. Froehlke concerned the very same salt ponds at issue in the dispute before Judge Alsup, and the appeals court back then found the area was subject to Clean Water Act protections.

In that case, the Ninth Circuit held that Clean Water Act protections apply to areas that tidal waters no longer reach if the only reason tidal water stopped going there is due to artificial dikes or barriers.

“It is conceded that in the absence of the salt pond levees, at least some of the ponds in question would be inundated,” Alsup wrote in his ruling. “That was true in 1972 and is true today.”

Another factor for determining if an area is a protected water of the United States is whether it is significantly linked in some way to a traditionally navigable water.

Alsup found a “direct water connection” existed in 1972 and still exists today in the form of tidal gates and intake pipes used to import water for salt production and discharge excess rainwater.

“The salt ponds here at issue have not been dry and have had continuing connections to the bay,” Alsup wrote.

The judge nullified the EPA’s March 2019 decision and ordered the agency to reconsider the question in light of his findings on Clean Water Act jurisdiction.

“The agency should evaluate the extent of nexus between the salt ponds and the bay and the extent to which they significantly affect the chemical, physical, and biological integrity of the bay and take into account all other factors required by law –– except for ‘fast land,’ which is finally determined by this order,” Alsup wrote.

Salt harvesting in the San Francisco Bay Area dates back centuries to when native Ohlone and later Spanish missionaries used methods to scrape crystalized salt off naturally occurring salt ponds on the edges of the bay.

The Redwood City Salt Ponds were converted into an industrial salt extraction site in 1901 and further developed over the next century. Cargill Corporation, the nation’s largest private company, acquired the site from the Leslie Salt Company in in 1978.

Plaintiffs who joined California in suing over the salt ponds’ protected status include San Francisco Baykeeper, Committee for Green Foothills and Citizens’ Committee to Complete the Refuge.

In a statement Monday, San Francisco Baykeeper executive director Sejal Choksi-Chugh said Alsup’s decision will help ensure Redwood City’s coastal area remains protected from unrestrained economic interests.

“Today’s ruling makes clear that Cargill’s future development of the salt ponds will be severely limited by Clean Water Act protections, resulting in a big legal win for San Francisco Bay,” Choksi-Chugh said.

The EPA did not immediately return an email seeking comment.

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