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Feds, Cargill Inc. drop appeal of a ruling that protects Redwood City salt ponds

Plans to build on the drained, historical bay are washed away after more than a decade

Attorney Joe Cotchett, center, former U.S. Rep. Pete McCloskey, left, and other plaintiffs announce their 2020 lawsuit against the U.S. Environmental Protection Agency and Redwood City Salt Ponds, an affiliate of Cargill Inc. Courtesy Save the Bay.

A ruling that protects the historic Redwood City salt ponds from being developed will stand unchallenged, now that defendants have withdrawn their appeal of an October court ruling that found the brackish ponds are part of U.S. waters and thus shielded by the federal Clean Water Act.

Global food corporation Cargill Inc. and its developer partner DMB Associates have sought to build on about 1,400 acres of salt ponds for more than a decade, filing an application with Redwood City in 2009. However, they faced intense opposition from the local community and environmental groups. In 2012, the companies withdrew a proposal to build more than 12,000 homes and thousands of square feet of commercial buildings on the ponds. At the same time, they asked for a determination on the land from the U.S. Environmental Protection Agency (EPA).

In November 2016, the EPA made a draft determination that the majority of the Salt Ponds property and the areas surrounding it constitute "waters of the United States," according to reporting by The Almanac.

But under the Trump Administration, the EPA reversed that determination in a March 2019 ruling that found the San Francisco Bay salt ponds in Redwood City weren't waters of the United States but were "fast land." The ponds, which have been owned and operated by Cargill and its affiliates since 1978, weren’t protected by the Clean Water Act and development could take place, the EPA stated.

In response, environmental groups San Francisco Baykeeper, Save the Bay, Green Foothills and Citizens Committee to Complete the Refuge filed a lawsuit against the EPA and Redwood City Plant Site, LLC, an affiliate of Cargill Inc. The plaintiffs were represented by Eric Buescher, Nazy Fahimi and Joe Cotchett of Cotchett, Pitre & McCarthy, former U.S. Rep. Paul "Pete" McCloskey, and Allison LaPlante and James Saul of the Earthrise Law Center at Lewis and Clark Law School.

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The salt ponds constitute one of the last remaining undeveloped areas along the San Francisco Bay’s shoreline and were formed by diking wetlands to evaporate the water and then harvesting the salt.

Cargill Inc. had hoped to develop its salt ponds land for commercial and residential purposes.

Federal District Court Judge William Alsup ruled last Oct. 5 that the EPA had "misapplied the law" in its decision. Alsup also ordered the EPA to make a new determination based on the law.

Cargill intervened in the legal action on the side of the EPA. Together they appealed the ruling to the Ninth Circuit Court of Appeals. But in February, the EPA filed a motion to voluntarily dismiss its appeal, and Cargill voluntarily asked the court to dismiss its appeal on April 2. The court approved EPA's withdrawal in early March, and the plaintiffs accepted Cargill's motion to withdraw on April 13.

In a written statement, Cargill said that given the EPA's decision to withdraw from the appeal, the company also withdrew its appeal.

"Our focus remains protecting environmental resources and working with our neighbors in the Bay Area to consider future uses of the Saltworks site. In the interim, salt harvesting operations at the site will continue."

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Cargill's voluntary dismissal of the appeal will allow the EPA to issue a decision in line with the federal court’s findings, the plaintiffs said in their statement on the defendants' withdrawal.

"Cargill's decision to drop the appeal ... is an unexpected victory for the Bay and for common sense. San Francisco Baykeeper will continue to watchdog Cargill, as well as Biden’s EPA, to make sure the ponds are afforded Clean Water Act protections," Sejal Choksi-Chugh, San Francisco Baykeeper executive director, said in a written announcement. "And we’ll keep advocating for the ponds to be restored to functioning tidal wetlands, creating habitat for hundreds of species of plants and animals, and providing a natural buffer that will help protect Bay Area shorelines and communities from climate-driven flooding."

Megan Fluke, executive director of Green Foothills, said the plaintiffs are pleased at Cargill's action.

"We urge them to sell the Redwood City salt ponds for conservation. In the face of the climate crisis, every remaining acre of restorable wetlands needs to be protected," she said.

David Lewis, executive director of Save the Bay, said it is urgent to protect the salt ponds and recommended they be added to the San Francisco Bay National Wildlife Refuge so they could be preserved.

Danielle M. Nichols, deputy spokesperson for the U.S. Department of Justice representing the EPA, said the agency has no comment.

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Feds, Cargill Inc. drop appeal of a ruling that protects Redwood City salt ponds

Plans to build on the drained, historical bay are washed away after more than a decade

by / Palo Alto Weekly

Uploaded: Tue, Apr 20, 2021, 11:27 am

A ruling that protects the historic Redwood City salt ponds from being developed will stand unchallenged, now that defendants have withdrawn their appeal of an October court ruling that found the brackish ponds are part of U.S. waters and thus shielded by the federal Clean Water Act.

Global food corporation Cargill Inc. and its developer partner DMB Associates have sought to build on about 1,400 acres of salt ponds for more than a decade, filing an application with Redwood City in 2009. However, they faced intense opposition from the local community and environmental groups. In 2012, the companies withdrew a proposal to build more than 12,000 homes and thousands of square feet of commercial buildings on the ponds. At the same time, they asked for a determination on the land from the U.S. Environmental Protection Agency (EPA).

In November 2016, the EPA made a draft determination that the majority of the Salt Ponds property and the areas surrounding it constitute "waters of the United States," according to reporting by The Almanac.

But under the Trump Administration, the EPA reversed that determination in a March 2019 ruling that found the San Francisco Bay salt ponds in Redwood City weren't waters of the United States but were "fast land." The ponds, which have been owned and operated by Cargill and its affiliates since 1978, weren’t protected by the Clean Water Act and development could take place, the EPA stated.

In response, environmental groups San Francisco Baykeeper, Save the Bay, Green Foothills and Citizens Committee to Complete the Refuge filed a lawsuit against the EPA and Redwood City Plant Site, LLC, an affiliate of Cargill Inc. The plaintiffs were represented by Eric Buescher, Nazy Fahimi and Joe Cotchett of Cotchett, Pitre & McCarthy, former U.S. Rep. Paul "Pete" McCloskey, and Allison LaPlante and James Saul of the Earthrise Law Center at Lewis and Clark Law School.

The salt ponds constitute one of the last remaining undeveloped areas along the San Francisco Bay’s shoreline and were formed by diking wetlands to evaporate the water and then harvesting the salt.

Federal District Court Judge William Alsup ruled last Oct. 5 that the EPA had "misapplied the law" in its decision. Alsup also ordered the EPA to make a new determination based on the law.

Cargill intervened in the legal action on the side of the EPA. Together they appealed the ruling to the Ninth Circuit Court of Appeals. But in February, the EPA filed a motion to voluntarily dismiss its appeal, and Cargill voluntarily asked the court to dismiss its appeal on April 2. The court approved EPA's withdrawal in early March, and the plaintiffs accepted Cargill's motion to withdraw on April 13.

In a written statement, Cargill said that given the EPA's decision to withdraw from the appeal, the company also withdrew its appeal.

"Our focus remains protecting environmental resources and working with our neighbors in the Bay Area to consider future uses of the Saltworks site. In the interim, salt harvesting operations at the site will continue."

Cargill's voluntary dismissal of the appeal will allow the EPA to issue a decision in line with the federal court’s findings, the plaintiffs said in their statement on the defendants' withdrawal.

"Cargill's decision to drop the appeal ... is an unexpected victory for the Bay and for common sense. San Francisco Baykeeper will continue to watchdog Cargill, as well as Biden’s EPA, to make sure the ponds are afforded Clean Water Act protections," Sejal Choksi-Chugh, San Francisco Baykeeper executive director, said in a written announcement. "And we’ll keep advocating for the ponds to be restored to functioning tidal wetlands, creating habitat for hundreds of species of plants and animals, and providing a natural buffer that will help protect Bay Area shorelines and communities from climate-driven flooding."

Megan Fluke, executive director of Green Foothills, said the plaintiffs are pleased at Cargill's action.

"We urge them to sell the Redwood City salt ponds for conservation. In the face of the climate crisis, every remaining acre of restorable wetlands needs to be protected," she said.

David Lewis, executive director of Save the Bay, said it is urgent to protect the salt ponds and recommended they be added to the San Francisco Bay National Wildlife Refuge so they could be preserved.

Danielle M. Nichols, deputy spokesperson for the U.S. Department of Justice representing the EPA, said the agency has no comment.

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