Feds, Cargill appeal Redwood City salt pond ruling

On Oct. 5, Judge William Alsup, with the U.S. District Court for the Northern District of California ruled the 1,400 acres of salt ponds owned by Cargill Inc. fell under the protection of the federal Clean Water Act, decades-old legislation intended to protect and prevent pollution in U.S. waters. In the decision, Alsup stated the lands are protected because they are wet, “have important connections to the Bay,” and have the potential to become inundated if levees were not in place. 

The decision overturned a determination made in 2019 by the EPA under the Trump administration, which claimed the salt ponds were not actually “waters of the United States,” but “fast lands” exempt from CWA protections. The Trump administration’s determination on the salt ponds was in response to a request by Cargill and its developer partner DMB Pacific Ventures.

DMB submitted and then withdrew a proposal to build 12,000 homes on the salt ponds in 2012, but continued to engage the community about future opportunities for the site. That effort was dubbed Reimagine Saltworks.

“Our focus remains on working with our neighbors in the Bay Area to consider all future uses of the site while protecting environmental resources,” said the statement by Smith. 

Lambasting the Trump administration and attempts to develop the salt ponds, California Attorney General Xavier Becerra expressed optimism in a statement that the case would be upheld in court.

“The Trump administration has spent the better part of four years trying to clear a path for industry interests to pollute our waters and damage our environment. Their unlawful attempt to remove protections and fast track development of the Redwood City Salt Ponds is no different. But we have the facts, the science, and the law on our side, and we intend — once again — to prove it in court,” said the emailed statement.

Similarly, David Lewis, executive director for the nonprofit Save the Bay, said he recognizes the two entities have the right to appeal the decision but remains hopeful the Ninth Circuit Court of Appeals will uphold the decision. Adding the appeal was “surprising, not surprising,” Lewis said his hope is that the Biden administration, once sworn in, would withdraw the lawsuit. 

“[The appeal is] surprising because the judge’s ruling was so clear, because this administration is leaving office,” said Lewis. “On the other hand, Cargill has been pursuing this exemption for a decade or so. It’s poor judgment to keep asking to get knocked down again but actually consistent with the way Cargill has approached this site and it’s consistent with Cargill’s resistance to federal law.” 

Eric Buescher, an attorney with Cotchett, Pitre and McCarthy representing multiple organizations seeking to overturn the 2019 EPA determination, shared Lewis’ confidence the courts would uphold Alsup’s findings. 

“We think that Judge Alsup’s decision got the legal analysis about the EPA’s jurisdiction over the salt ponds absolutely correct and do not believe the appeal is likely to change that result,” said Buescher. “We are very confident in the claims we asserted. We think the salt ponds are water of the United States. That was the conclusion also reached two months ago. That’s the right outcome and we’re confident the Ninth Circuit will see that the same way.” 

Other than procedural work, the next big deadline for the case will be March 12, when opening briefs will be held, said Buescher. He said he expects the new administration to make a determination on whether to dismiss the appeal between inauguration on Jan. 20 and March. 

Buescher said it’s traditional practice for a leaving administration to file appeals on cases to provide the incoming administration a chance to weigh in on the matter, though he added he’s unsure if this is true in this case. 

In light of sea-level rise, many environmental activists and local politicians have called for the site to be returned to marsh land, a longtime hope of Lewis’ as well. 

“What I hope will happen is Cargill will conclude they can’t develop these lands, return them to the city or state and convert them to wetlands like we’ve been calling for for over a decade. It’s already clear that Redwood City doesn’t want to see these ponds developed and the public doesn’t,” he said. 

sierra@smdailyjournal.com 

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