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Source: US State of California

Monday, October 5, 2020

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SACRAMENTO – California Attorney General Xavier Becerra prevailed today in protecting the Redwood City Salt Ponds (Salt Ponds) and the San Francisco Bay in Becerra et al. v. U.S. Environmental Protection Agency. The U.S. District Court for the Northern District of California ruled against the Trump Administration, vacating a determination by the Environmental Protection Agency (EPA) that the Salt Ponds – historically part of the of San Francisco Bay tidal wetlands and marshes – are not “waters of the United States” (WOTUS) under the Clean Water Act. The EPA’s determination, if allowed to stand, would have excluded any future development of the Salt Ponds from the protections of the Clean Water Act.

“This is an important victory for protecting clean water in our communities. And it’s a good reminder to the Trump Administration that it can’t use the San Francisco Bay as its political playground,” said Attorney General Becerra. “The EPA can’t ignore its own scientists and come up with an arbitrary rule that opens the door for development of a vital ecosystem.”

The court found that in the EPA’s decision to remove Clean Water Act protections from the 1,365 acres of Salt Ponds, the agency ignored its own regulations defining WOTUS and misapplied Ninth Circuit precedent. The EPA’s WOTUS regulations, in place at the time the agency issued the jurisdictional determination, required a finding that the Salt Ponds are WOTUS for several reasons, including that they are part of the traditionally navigable waters of San Francisco Bay and they retain a significant connection to the Bay’s ecology. Ninth Circuit precedent similarly makes it clear that Clean Water Act jurisdiction extends to areas, such as the Salt Ponds, which are no longer subject to flooding because of artificial levees or dikes but would have been subject to flooding if the levees or dikes were removed.

The U.S. Fish and Wildlife Service has proposed adding the Salt Ponds to the Don Edwards National Wildlife Refuge because of the site’s significant conservation value as habitat for wildlife in the South San Francisco Bay. Restoration of the Salt Ponds as salt marshes and wetlands have also proven effective in improving the Bay’s ecosystem and promoting climate change resilience amid sea level rise. The Clean Water Act allows California to review potential projects for their impact on state waters and impose conditions on federal dredge and fill permits to ensure projects comply with state laws. Excluding the Salt Ponds from those key Clean Water Act requirements opens the Salt Ponds to urban development.

On September 24, 2019, Attorney General Becerra challenged the EPA’s determination against WOTUS protections for the Salt Ponds in the District Court for the Northern District of California. 

A copy of the judgment and order can be found here and here.

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