United States District Court, N.D. California
SAN FRANCISCO BAYKEEPER; SAVE THE BAY; COMMITTEE FOR GREEN FOOTHILLS; CITIZENS' COMMITTEE TO COMPLETE THE REFUGE; and STATE OF CALIFORNIA, by and through XAVIER BECERRA, ATTORNEY GENERAL, Plaintiffs,
U.S. ENVIRONMENTAL PROTECTION AGENCY AND ITS ADMINISTRATOR, Defendants. REDWOOD CITY PLANT SITE, LLC, Intervenor-Defendant.
ORDER CONSOLIDATING CASES, GRANTING MOTIONS TO
INTERVENE, AND VACATING HEARINGS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
these related challenges to a federal agency determination,
the parties stipulate to consolidation and the original
requestor of the agency determination moves to intervene.
Intervention is unopposed. For the reasons below, the actions
are Consolidated and the motions to
intervene are Granted.
March 2019, the United States Environmental Protection Agency
issued a final determination on the jurisdictional status of
waters under the Clean Water Act within an area known as the
Redwood City Salt Ponds, adjacent to the San Francisco
bay's Westpoint Slough. The jurisdictional determination
found that the contested area did not include “waters
of the United States” under the CWA and thus was not
entitled to the CWA's protections. The EPA's
conclusion was directly at odds, however, with a draft
prepared by its San Francisco-based Region 9 division in
November 2016. Region 9's draft found that most of the
contested area constituted “waters of the United
States” for purposes of CWA jurisdiction.
question of what weight the EPA owed the Region 9 draft lies
at the center of these two related actions challenging the
EPA's March 2019 determination. Both actions were filed
on September 24, 2019, one by a group of nonprofit
environmental organizations (Baykeeper), and the
other by the State of California (California). Each
complaint asks that the March 2019 determination be set aside
and declared unlawful, arbitrary and capricious, an abuse of
discretion, unsupported by substantial evidence, and in
violation of the Administrative Procedure Act (Compl.
California ¶ 5; Compl. Baykeeper
by both complaints, the journey to the March 2019
determination began ten years ago with a request for a
preliminary jurisdictional determination by our proposed
intervenor, Redwood City Plant Site, LLC, also known as DMB
Redwood City Saltworks. A different entity, DMB Redwood City
Holdings LLC, and an affiliate of Cargill, Incorporated,
formed Saltworks in 2006 as a joint venture to explore future
uses of the salt pond site.
current use of the site for commercial salt production,
however, dates to the early twentieth century when the salt
ponds were constructed as part of a larger development of
commercial salt production facilities along the San Francisco
bay and its tributaries. Once established, the site consisted
of an approximately 1, 400-acre salt complex east of Redwood
Creek, surrounded by a levee system separating the site from
natural tidal influences of the bay. Cargill and its
affiliates have owned the property since 1978 (Compl.
Baykeeper ¶ 66).
2009, the Saltworks venture proposed converting the site to a
mixed-use, high-density development and partial
tidal-restoration project. In conjunction with a permit
application it filed with Redwood City, Saltworks requested
that the Army Corps of Engineers prepare a non-binding,
preliminary determination under the CWA for the area (Decl.
Kane ¶ 18).
2010, the Corps issued the requested determination finding
that wetlands and other waters on the site may be
jurisdictional under the CWA. Facing public opposition to the
development and uncertainty regarding CWA jurisdiction,
Saltworks withdrew its Redwood City permit application in
2012 (Compl. Baykeeper ¶ 87).
later, however, Saltworks requested a binding jurisdictional
determination for the site from both the Corps and the EPA.
Initially, the EPA decided to provide only guidance to the
Corps. But, when the Corps told the EPA three years later
that it would find the waters were non-jurisdictional, the
EPA intervened, reserving the final determination for itself.
November 2016, EPA Region 9 completed its draft decision
finding that most of the waters fell within the jurisdiction
of the CWA. EPA headquarters did not finalize Region 9's
draft and Saltworks' pending request remained open until
March 2019, when the EPA issued its final determination going
the other way. The Baykeeper and California
to the initial case management conference, Saltworks moved to
intervene in both actions. Although California and the
Baykeeper plaintiffs would not stipulate to
Saltworks' intervention prior to ...