S.F. Baykeeper v. U. S. Envtl. Prot. Agency, No. C 19-05941 WHA (lead case)
| Decision Date | 05 October 2020 |
| Docket Number | No. C 19-05941 WHA (lead case),C/w : No. C 19-05943 WHA |
| Citation | 492 F.Supp.3d 1030 |
| Parties | SAN FRANCISCO BAYKEEPER, Save the Bay, Committee for Green Foothills, Citizens’ Committee to Complete the Refuge, and State of California, Attorney General, Plaintiffs, v. U. S. ENVIRONMENTAL PROTECTION AGENCY and Its Administrator, Defendants. Redwood City Plant Site, LLC, Intervenor-Defendant. |
| Court | U.S. District Court — Northern District of California |
Tatiana Koleva Gaur, George Matthew Torgun, Office of the Attorney General, Los Angeles, CA, for Plaintiff State of California.
Deidre G. Duncan, Pro Hac Vice, Karma Barsam Brown, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Tom Joel Boer, Hunton & Williams LLP, San Francisco, CA, for Intervenor-Defendant.
Andrew J. Doyle, United States Department of Justice, Washington, DC, for Defendants.
AMENDED ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD
In these challenges to a jurisdictional determination under the Clean Water Act, this order finds that the agency misapplied the law of our circuit.
Plaintiffs San Francisco Baykeeper, Save the Bay, Committee for Green Foothills, Citizens’ Committee to Complete the Refuge, and the State of California challenge a March 2019 final determination by the United States Environmental Protection Agency that found no jurisdictional waters under the Clean Water Act at a salt production complex bordering the southwestern San Francisco Bay. Prior to development, tidal salt marsh interspersed with numerous sloughs occupied the site. Construction of a series of dikes and levees, however, converted the marshlands to the industrial salt ponds and facilities known as the Redwood City Salt Plant (AR 5, 13).
The EPA made its determination based on a supposed transformation of the site into "fast land" prior to the passage of the Clean Water Act in 1972. Its determination stemmed from a 2012 request by our Intervenor-Defendant Redwood City Plant Site, LLC, also known as DMB Redwood City Saltworks. Cargill, Incorporated, the owner of the salt ponds, formed Saltworks in 2006 to explore its future development. As both the EPA's determination and the administrative record reflect, however, development and use of the ponds began much earlier (AR 12).
The earliest known salt harvest in the Bay Area dates back to the native Ohlone and later the Spanish missionaries who replicated their methods of scraping crystallized salt off naturally occurring salt ponds along the Bay. Mission San Jose, established in 1797, eventually produced enough salt to export moderate quantities to Europe. Large-scale commercial salt production came later, however, when entrepreneurs constructed levees to form artificial evaporation ponds in the Bay's marshlands (AR 5–6, 5428–29).
By the start of the twentieth century, ownership of the marshlands had been largely consolidated under the Dumbarton Land & Improvement Company. It leased or sold the marshlands to the early salt companies that soon proliferated along the shore and its tributaries. Production of salt by the early saltworks remains much the same as present day operations, though then on a smaller scale. Salt was taken in from the Bay by pumps and/or gated inlets, concentrated into brine by solar evaporation in sequential basins, and moved into small rectangular crystallizers to eventually crystallize as salt that was then harvested by hand (AR 81, 5430–32).
At the salt ponds in question, two small operations recorded their first commercial salt harvests in 1902. The companies at that time operated on the western side of the Redwood City property; marshlands interspersed with sloughs remained on the eastern (Bay) side of the property. A series of mergers over the next four decades led to the 1940 acquisition of the Redwood City site by the Leslie Salt Company, an enterprise owned by the original Dumbarton shareholders. At the time, Leslie Salt operated three salt operations on the eastern shore of the Bay, mainly in Newark. Each plant had independent networks of concentrating and crystallizing ponds, harvesting equipment, and washers. The acquisition of the Redwood City property reunified the Dumbarton land under common ownership and gave Leslie Salt a near monopoly on salt-producing operations in the Bay Area.
Once Leslie Salt acquired the Redwood City property, it immediately began constructing a fourth operation on the site. The construction involved three major permits from the War Department and the Army Corps of Engineers. A 1940 permit allowed it to dam First Slough, which separated the existing salt evaporating ponds from the undeveloped eastern side of the Redwood City site and to construct levees around the eastern perimeter. The permit issued with a condition that if changes became necessary, "the owner [would] be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy, and unobstructed." Next, a 1947 permit allowed dredging of Redwood Creek and Westpoint Slough to create and maintain internal levees within the salt ponds. Finally, a 1951 permit allowed the construction of an eight-inch pipeline across the Bay along the Dumbarton strait to transfer brine between its Newark plant and the Redwood City ponds. Leslie Salt made its first shipment of salt from the Redwood City operation in 1951 (AR 6–8). Operation of the site has remained largely the same since 1951, despite ownership changing hands in 1978 when Cargill acquired the ponds and all of Leslie Salt's reclaimed marshland properties.
The salt production process begins when seawater from the Bay inundates the evaporation ponds at the Newark facility (across the Bay from Redwood City). The seawater then moves through a series of containment cells as the salinity increases. After approximately four years of solar evaporation at the Newark facility, the saline water is pumped via underwater pipe to the salt ponds at Redwood City. That water enters a group of ponds known as the "pickle complex," where further solar evaporation ensues. The saline water next transfers to a series of ponds called crystallizer cells, where the salt reaches its final, crystal form, separating from residual liquid known as bittern. Machines then scrape the salt off the floor of the crystallizer cells and load it onto trucks for shipment.
Over the years, since before and after 1972, the operator regularly brought seawater directly in from the Bay through an intake pipe and a tide gate connecting First Slough to the Redwood City ponds "for purposes of operating and maintaining the salt processing" (AR 14). The same pipe has periodically discharged rainwater that fell on the site and fills the ponds, pursuant to NPDES permits (AR 8, 11). The EPA Findings stated:
Prior to connecting the Redwood City plant to the Newark plant, and at subsequent times, the Redwood City plant took seawater directly into some of the industrial salt production ponds, via intake manifolds and pumps. From 1951 to at least 2002, Leslie Salt (later Cargill) imported seawater through the intake pipe and tide gate structure located at First Slough (between ponds 4 and 8E) to desalt the crystallizer beds and desalting pond (Pond 10). In 2000 and 2001, Cargill constructed new intake pipes on Pond 1 of the Ravenswood Complex (formerly part of the Redwood City plant) to bring in seawater to improve brine flow.
Put differently, the Redwood City site is hydrologically connected to navigable waters by both tide gates and intake pipes. Rain water is discharged through the intake pipes and into the Bay during the rainy season subject to NPDES permits (AR 663, 667, 678, 6180). Bay water is also directly brought in through these pipes and the tide gates. Both the discharged rain water and the Bay water that is brought into the site for desalting purposes is "carried in a constructed ditch within the perimeter levees of the Site" (AR 1109). The connection between the ditch and the Bay is called a "water control device," a series of two intake valves and a distribution location with a third valve (AR 3703–09). The Bay water brought into the site travels through the ditch and is distributed to the crystallizer beds and the desalting pond, where the water dissolves residual salt solids found in the crystallizer beds, creating a brine. That brine is redirected to "the pre-crystallization system" (AR 1109). The ditch is connected to the various ponds by additional gates and, where intersected by paths, the ditch continues through culverts. There is also a separate tide gate near the intake pipe. The tide gate and intake pipe, when opened, provide direct connections to First Slough, a traditionally navigable water of the United States that empties into the Bay.
Federal and state permits pertaining to operations improvement and maintenance activities, such as dredge lock construction, levee repair, rip-rap renewal, and replacement of gates, pipes, pumps and siphons, also regulate the site. Such permits include operations improvement and maintenance permits under Section 404 of the CWA covering existing levees and infrastructure for all salt plants. In acquiring the permits, Cargill regularly purported to reserve its right to argue that the type and location of work described in the permits and work plans remained outside Corps jurisdiction and/or remained exempt from Section 404 permit requirements.
While the operation of the salt ponds may not have changed significantly since 1951, the regulatory landscape has changed. Many changes came in response to development of Leslie Salt's reclaimed marshlands elsewhere around the Bay. In the late 1950s and early 1960s, Leslie Salt sold parcels of...
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