San Francisco Baykeeper v. EPA

The federal district court for the Northern District of California vacated EPA’s determination that the Redwood City Salt Ponds were not within the jurisdiction of the Clean Water Act, holding that EPA misapplied precedent regarding what constitutes “fast land,” which is not subject to federal jurisdiction. The court concluded that although levees built before the Clean Water Act’s enactment would not be subject to Clean Water Act jurisdiction, the salt ponds themselves could remain subject to Clean Water Act jurisdiction because they are wet, not uplands, and have “important interconnections” to San Francisco Bay. Since EPA’s negative jurisdictional determination was “solely” anchored in its finding that the salt ponds were “transformed into fast land prior to passage” of the Clean Water Act, the court set aside the determination and remanded for evaluation of “the extent of nexus between the salt ponds and the Bay and the extent to which they significantly affect the chemical, physical, and biological integrity of the Bay and take into account all other factors required by law.” The court’s decision did not address the plaintiffs’ allegations that the negative jurisdictional determination would exacerbate the consequences of sea level rise and impair California’s ability to mitigate sea level rise impacts.

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Seven weeks after the U.S. Environmental Protection Agency (EPA) withdrew its appeal of a district court’s order that vacated a negative jurisdictional determination under the Clean Water Act for the Redwood City Salt Ponds along San Francisco Bay, the Ninth Circuit Court of Appeals granted a motion for voluntary dismissal filed by the limited liability company that requested the jurisdictional determination. San Francisco Baykeeper and other plaintiffs’ complaint alleged that the negative jurisdictional determination would exacerbate the consequences of sea level rise and impair California’s ability to mitigate sea level rise impacts, though the district court’s decision did not address this issue, focusing instead on EPA’s determination that the salt ponds had been transformed into “fast land” prior to enactment of the Clean Water Act.

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