Baykeeper v. U.S. Environmental Protection Agency

          ORDER CONSOLIDATING CASES, GRANTING MOTIONS TO INTERVENE, AND VACATING HEARINGS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In 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.

         STATEMENT

         In 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.

         The 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 ¶ 13).

         As told 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.

         The 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).

         In 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).

         In 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).

         A month 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.

         In 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 actions ensued.

         Prior 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 ...