A coalition of local nonprofits has teamed up to sue the U.S. Environmental Protection Agency (EPA) and its head, Andrew Wheeler, over the agency's recent decision that the Redwood City Salt Ponds, owned by Cargill, Inc., are not subject to the U.S. Clean Water Act.
The EPA's decision was a reversal of a prior draft determination by the agency, released in November 2016, that laid out findings that the majority of the Salt Ponds property and the areas surrounding it constitute waters of the United States, according to the lawsuit.
The nonprofits filing suit are San Francisco Baykeeper, Save the Bay, the Committee for Green Foothills, and the Citizens' Committee to Complete the Refuge.
In addition, California Attorney General Xavier Beccera filed a separate lawsuit against Wheeler and the EPA on the same day, Sept. 24.
Both lawsuits, filed in the U.S. District Court for the Northern District of California, challenge the legality of the EPA's determination, announced on March 1, that the 1,365 acres of Redwood City Salt Ponds are not governed by the Clean Water Act.
The site was first developed to create salt ponds in 1902, and later developed into the Leslie Salt Company. Levees were built in the 1930s to separate the salt ponds from the surrounding marshlands.
Since 1978, the salt ponds have been owned by Cargill, Inc., and are currently owned by Cargill Point, Inc.
In 2009, Cargill announced plans to build more than 12,000 housing units on the salt ponds property.
In 2012, the company withdrew the plan because it was publicly opposed, but sought a determination from the EPA that the Clean Water Act did not apply to the salt ponds.
The Clean Water Act governs the nation's waters and has among its goals "eliminating all discharges of pollutants into navigable waters" and promoting water quality.
In 2016, the EPA released a draft determination that the "vast majority" of the salt ponds are subject to that law, according to the Committee for Green Foothills.
In March, Wheeler, the EPA's acting administrator, reversed that ruling.
The EPA's report stated, "The occasional exchange of water through the levees between the San Francisco Bay and the salt ponds for purposes of operating and maintaining the salt processing does not constitute waters “overtak[ing the land ... and therefore does not render the site jurisdictional under the (Clean Water Act.)"
In making this determination, the nonprofits' lawsuit states, the EPA was effectively "authorizing the pollution or destruction of the Site's waters."
The suit argues that the ponds fall under the jurisdiction because they were once part of the Bay and are navigable, even if they're no longer subject to tidal inundation.
More than 90% of the Bay's wetlands have been destroyed, and the property under discussion is one of the last remaining undeveloped areas along the Bay's shoreline, the lawsuit states.
It's adjacent to lands that are protected at the federal and state levels, like the Don Edwards National Wildlife Refuge, Ravenswood Open Space Preserve and the Palo Alto Baylands Preserve. The U.S. Fish and Wildlife Service has proposed adding it to the Don Edwards National Wildlife Refuge because of its ecosystem and wildlife habitats.
The lawsuit argues that the EPA was wrong to assert that the site is "fast land" and nonjurisdictional, since the property is not "dry, solid upland" as the EPA claims.
In a press statement, Becerra said: "It’s a sad day when the country’s ‘environmental protection agency’ looks at San Francisco Bay and doesn’t see a body of water that it should protect. We should restore the Bay, not build on top of it. This unlawful proposal is simply an attempt by the EPA to overlook its obligation to protect our nation’s waters in order to fast track development. President Trump, California’s precious San Francisco Bay is not for sale."
Megan Fluke, executive director of the Palo Alto-based Committee for Green Foothills, said in a press statement: "The salt ponds are part of the Bay. Development here would not only destroy restorable wetlands, it would put homes and businesses in the path of sea level rise, on an earthquake liquefaction site, and next to heavy industry."
In a written statement, U.S. Sen. Dianne Feinstein also gave support for the lawsuit: "The administration’s failure to protect the San Francisco Bay salt ponds puts the bay’s entire ecosystem at risk. I support the lawsuit filed by Attorney General Becerra and environmental groups in order to ensure the Clean Water Act is enforced and the salt ponds are protected. … The health of the San Francisco Bay will largely be determined by the future of these surrounding salt ponds. We can’t let the administration shirk its responsibility to safeguard this national treasure.”