EPA deals setback to Cargill over Redwood City property.
Company trying to develop 12,000 homes on the industrial salt-making land on shoreline
The Biden administration has sided with environmentalists in their long-running battle with Cargill Salt over whether an expansive property on the shoreline of San Francisco Bay in Redwood City can be developed.
In the latest chapter of a saga that has played out for 12 years with potentially billions of dollars at stake, the U.S. Environmental Protection Agency on Friday dropped the Trump administration’s appeal of a federal court ruling from October that concluded the property, located east of Highway 101 near the Port of Redwood City, is subject to the federal Clean Water Act.
Cargill, a privately held company based in Minnesota, evaporates water on the 1,365-acre property in “crystallizer beds” to make salt for industrial uses. If the bayfront land is found to be subject to the 1972 Clean Water Act, that would sharply limit what can be built there. Environmental groups say the land — which sits at sea level and was once part of San Francisco Bay before it was diked off in 1902 — should be restored to tidal wetlands for fish, wildlife and recreation. They also argue that any attempt to develop the bayfront land is impractical because of sea level rise.
“We’re thrilled the Biden administration is doing what Trump didn’t, which is uphold the law, and protect clean water, wetlands and the bay,” said David Lewis, executive director of Save the Bay, an environmental group based in Oakland. “There is already broad and deep opposition in the Bay Area to building on this property. Cargill briefly found a friend in the Trump administration. But this shows elections have consequences.”
Cargill says it plans to move forward with an appeal in the Ninth Circuit U.S. Court of Appeals.
“Our focus has always been on protecting environmental resources and working with our neighbors in the Bay Area to consider future uses of the site,” said David Smith, an attorney for Cargill and DMB Pacific Ventures, an Arizona company that has tried to develop the property.
In 2009, Cargill and DMB proposed building 12,000 homes on the industrial saltmaking land along Seaport Boulevard just north of the Dumbarton Bridge.
The project would have been the largest development on the shores of San Francisco Bay since Foster City was constructed in the 1960s. It was withdrawn in 2012 amid opposition from community groups and environmentalists. Cargill has said it wants to move forward with another project but hasn’t offered specifics, leading some to speculate that the company is looking to boost the value of the land and sell it to the federal or state government to expand the nearby Don Edwards San Francisco Bay National Wild
life Refuge.
Cargill and its attorneys contend that the property is dry land separated from the bay and is not subject to the Clean Water Act, which requires a federal permit to fill in “waters of the United States.”
Five years ago, during the Obama administration, the Army Corps of Engineers ruled that the Cargill property was not subject to the Clean Water Act. But then the regional EPA office 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. Trump won the election and replaced Obama’s EPA leaders.
In 2019, EPA Administrator Andrew Wheeler, a former coal industry lobbyist, signed a 15-page 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. Four environmental groups and California Attorney General Xavier Becerra sued to challenge that decision.
Last October, U.S. District Court Judge William Alsup agreed with them. Rejecting the Trump EPA argument in a 21-page ruling, 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 Trump administration appealed, as did Cargill. But Trump lost the election four months ago.
One major legal issue looming now is that the environmental groups sued the EPA, not Cargill. The appeals court will have to decide if Cargill still has standing in the case to continue the appeal of the lower court decision.
“We continue to disagree with the district court’s ruling on critical facts, application of court precedent and lack of deference to the expertise of two presidential administrations,” Smith said, “including the Obama Army Corps of Engineers.”
The company is fighting an uphill political battle. Both California senators, Dianne Feinstein and Alex Padilla, along with eight Bay Area House members led by Rep. Jackie Speier, DSan Mateo, signed a letter asking the EPA to drop the appeal. The property also is not zoned for development.
“The only thing more misguided than pretending that water is really land is to build on land that’s really water,” said Sejal ChoksiChugh, executive director of San Francisco Baykeeper, an environmental group based in Oakland. “This decision could save the Bay Area future heartache when climate change causes sea levels to rise and flood such low-lying areas and anything that could be built upon it.”