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.

Four regional environmental organizations and the State of California filed lawsuits in federal district court for the Northern District of California challenging the EPA’s determination that the Redwood City Salt Ponds were not within the jurisdiction of the Clean Water Act. The organizations’ complaint alleged that the Salt Ponds consisted of approximately 1,365 acres that are “one of the last remaining undeveloped areas along the San Francisco Bay’s shorelines” and that the protection of such areas “will help the surrounding area be resilient to climate impacts.” The complaint asserted that EPA’s determination that the Salt Ponds are not waters of the United States ignored numerous factors and was not consistent with the Clean Water Act and that it would lead to impacts on water quality and exacerbate the consequences of sea level rise.