Cargill development hits stumbling block.
In a significant stumbling block for a long-running effort by Cargill Salt to develop nearly 1,400 acres of San Francisco Bay’s shoreline in Redwood City, a federal judge has overturned a Trump administration decision last year that said the property was exempt from the Clean Water Act.
The U. S. Environmental Protection Agency “ignored its own agency regulations” and prior court decisions when it ruled that the waterfront site, located along Seaport Boulevard east of Highway 101, isn’t bound by the landmark environmental law, wrote U. S. District Court Judge William Alsup of San Francisco.
The ruling late Monday is a victory for four environmental groups and California Attorney General Xavier Becerra. They sued the Trump administration last year to overturn its decision, which would have made it easier to develop the property.
They have argued that the area, which sits at sea level and was once part of San Francisco Bay before it was first diked off in 1902, should be restored to tidal wetlands and returned to natural conditions. They also argue that any attempt to develop the bayfront lands is impractical because of sea level rise that risks flooding it.
“The court’s decision means that Redwood City salt ponds are wetlands, protected by federal law,” said David Lewis, executive director of Save the Bay. “The ponds belong to San Francisco Bay, and Cargill should return them to the public for permanent protection within the San Francisco Bay National Wildlife Refuge. We’re not paving the bay any more.”
An attorney for Cargill and DMB Pacific Ventures, the Arizona developer that proposed building thousands of homes on the property a decade ago, said the companies are “disappointed” by the ruling and disagree with the court’s conclusions.
“We are reviewing all options,” said attorney David Smith of San Francisco. “Our focus is on working with our neighbors in the Bay Area to consider all future uses of the site while protecting environmental resources.”
In 2009, Cargill and DMB proposed building 12,000 homes on the industrial salt-making land. The project would have been the largest development on the bayfront since Foster City was constructed in the 1960s. It was withdrawn in 2012 amid opposition from community groups and environmentalists.
Cargill still operates an industrial salt-making plant on the property. Salt is evaporated from bay waters and scraped off muddy “crystalizer beds” and sold for road de-icing, food and other uses.
Cargill and DMB have not yet issued a new specific development proposal. Last
year, Smith said the companies were planning to hold public meetings to gather input. So far, those meetings have not been held.
T he d e c i s i on over whether the property is bound by the Clean Water Act could be worth billions of dollars. The law, passed by Congress in 1972, requires a federal permit to fill in “waters of the United States” which the EPA and courts have defined as waters which are navigable, once were navigable or could be navigable, along with wetlands adjacent to them and “all waters which are subject to the ebb and flow of the tide.”
Five years ago, during the Obama administration, the Army Corps of Engineers ruled the Cargill property was not subject to the Clean Water Act. But then the regional office of the EPA in San Francisco came to the opposite conclusion. Under the law, the EPA can overrule the Army Corps in special circumstances.
But when the regional EPA office sent its draft decision to EPA headquarters in Washington, D.C., for final approval in late 2016, managers there said that the agency was so busy with the Flint, Michigan, polluted water crisis that it would be months before it could address the Cargill issue.
When President Trump won the election he replaced Obama’s EPA leaders. In March, 2019, EPA Administrator A ndrew Wheeler, a former coal industry lobbyist, signed a 15page letter that concluded the property “is not subject” to the Clean Water
Act’s restrictions on development, in part because it was diked and filled for salt-making before passage of the law.
Alsup, in his ruling, disagreed. He said the site is still connected to the bay by tidal gates and intake pipes, and most important, is wet. He ordered the issue sent back to the EPA for a new decision.
“The salt ponds here at issue have not been dry and have had continuing connections to the bay,” the judge wrote.
As a practical matter, if Trump loses re- election next month, Democrat Joe Biden will likely replace the top officials at the EPA.
In 2003, Cargill, a private company based in Minnesota, sold 16,500 acres of its salt ponds in the South Bay to the public for $100 million, setting up one of the largest wetlands restoration efforts ever attempted in the United States.
Since then, state and federal wildlife agencies have been converting much of the land — which includes property in Southern Alameda County and in Alviso — back to wetlands for fish, birds and public recreation.
But the Redwood City site was left out of the 2003 deal.
At the time, Cargill said it could be developed more easily than the other properties, many of which were submerged in water.
And Sen. Dianne Feinstein, who negotiated the sale, said she couldn’t raise the amount Cargill wanted from Congress to purchase it.