Attorney General Becerra Files Lawsuit Against EPA Determination Excluding Redwood City Salt Ponds from Clean Water Act Protections

SACRAMENTO – California Attorney General Xavier Becerra today filed a lawsuit in the U.S. District Court for the Northern District of California challenging the Environmental Protection Agency’s determination that 1,365 acres of salt ponds in Redwood City (Salt Ponds) are not “waters of the United States” under the Clean Water Act. The Salt Ponds – an area adjacent to the San Francisco Bay and containing tidal channels and impoundments of bay waters – have been identified as a key area for restoration to improve the Bay ecosystem and to provide resiliency against sea level rise. EPA's decision, made at the request of developers, would allow this area to be built upon without the protections afforded by the Clean Water Act. In the lawsuit, Attorney General Becerra declares this action as unlawful under the Administrative Procedure Act.

“The Trump Administration continues to endanger California’s efforts to protect our environment and public health,” said Attorney General Becerra. “It’s a sad day when the country’s ‘environmental protection agency’ looks at San Francisco Bay and doesn’t see a body of water that it should protect. We should restore the Bay, not build on top of it. This unlawful proposal is simply an attempt by the EPA to overlook its obligation to protect our nation’s waters in order to fast track development. President Trump, California’s precious San Francisco Bay is not for sale.”

Today’s lawsuit challenges EPA’s determination as unlawful because it is contrary to the Clean Water Act and EPA's own regulations implementing that statute, it arbitrarily ignored an extensive analysis prepared by EPA Region 9 in 2016 which concluded that the Salt Ponds are “waters of the United States” for several independent reasons, and it failed to consider relevant facts and evidence. 

Attorney General Becerra asserts that the EPA’s decision deprives California of the ability to conduct review of potential projects on the site as required by Section 401 of the Clean Water Act and undermines California’s interests in wetlands restoration. By removing the requirement to obtain a permit for dredge and fill activities, it makes urban development of the Salt Ponds more feasible and likely.

In the complaint, Attorney General Becerra asserts the EPA’s jurisdictional determination:

• Is contrary to the Clean Water Act, EPA's implementing regulations, and applicable case law by concluding that the site is dry, solid upland rather than “water” for Clean Water Act purposes;
• Ignores or fails to evaluate pertinent facts and evidence demonstrating the Salt Ponds are “waters of the United States,” including that the Salt Ponds were part of the traditionally navigable waters of San Francisco Bay, are navigable in fact, and retain a significant ecological connection to the Bay;
• Deprives California of its ability to conduct review of potential projects on the site as required by Section 401 of the Clean Water Act; and
• Undermines California’s ability to restore Bay wetlands and provide resiliency against sea level rise by removing permitting requirements for dredge and fill activities, and making development more feasible and likely.

A copy of Attorney General Becerra's lawsuit against the EPA is available here.