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California Attorney General Xavier Becerra and four environmental groups sued the Trump administration Tuesday over a decision that could green light construction on the Cargill Salt property in Redwood City.
The Cargill property, east of Highway 101, is the Silicon Valley site where 10 years ago, a developer made a controversial — and ultimately unsuccessful — bid to build the largest housing development on the San Francisco Bay shoreline in half a century.
“We won’t let the Trump Administration invite developers to pave the bay,” said David Lewis, executive director of one of the environmental organizations, Save the Bay. “The salt ponds and other San Francisco Bay wetlands and water deserve continued federal legal protection against pollution and development,”
Becerra and the groups claimed in two separate lawsuits that not only could construction on the 1,365-acre property block efforts to restore it to wetlands and other natural conditions for wildlife, but it would set a national precedent that would make it easier for other developers to fill in land adjacent to bays, marshes and other natural features across the United States.
Officials of the U.S. Environmental Protection Agency declined to discuss the lawsuits on Tuesday.
“EPA does not comment on pending litigation,” said Bill Glenn, an EPA spokesman.
The issue highlights one of the biggest development controversies in recent decades along San Francisco Bay’s shores. In 2009, Cargill and DMB Associates, an Arizona developer, proposed building 12,000 homes on the industrial salt-making land off Seaport Boulevard, eight miles south of San Francisco International Airport.
The project, which would have been the largest development on the bay since Foster City was constructed in the 1960s, was withdrawn in 2012 amid opposition from community groups and environmentalists.
In March, however, Andrew Wheeler, administrator of the EPA, ruled that the land owned by Cargill Salt is not bound by the federal Clean Water Act. The announcement, which overturned an earlier decision from the EPA’s regional office in San Francisco during the Obama administration, is potentially worth billions of dollars, because it makes the land easier to develop or to sell at a higher price to the government for wildlife habitat restoration in the future.
In March, after the decision, Cargill and DMB then announced they were moving forward with public meetings to help craft a new project. So far, however, none has been held.
Cargill still operates an industrial salt-making plant on the property. Salt is evaporated from bay waters and scraped off muddy “crystalizer beds” to be used in road de-icing, food and other uses.
Cargill has not yet issued a specific development proposal.
But on Tuesday, David Smith, an attorney for the Cargill-DMB project, said that the companies are working on a new proposal that would include wetlands restoration, expansion of the Bay Trail, flood protection for San Mateo County, and perhaps some recreational sports fields, along with some development.
Smith said he does not yet know how many homes, if any, will be included, but that the companies plan to make those decisions after hearing what the public wants.
“The intention would be for the vast majority of the site to be for public uses,” Smith said.
In the earlier proposal, about half was planned for development, he noted.
“The last time perhaps we got ahead of the community,” he said. “We don’t want to do that this time. We want to hear first-hand from them about what is most important for them.”
Smith noted that the Army Corps of Engineers under the Obama administration was finalizing a decision to declare that the property was not subject to the Clean Water Act before the regional office of the EPA took over the case and ruled that it did fall under the Act. That regional EPA decision was not approved or denied by the EPA headquarters in Washington D.C. before Obama left office. Smith said Tuesday the companies “have full confidence” that the courts will now uphold the Trump Administration’s March ruling.
But Tuesday, four environmental groups said in their lawsuit that the Trump administration ruling is “arbitrary and capricious” and violates the federal Clean Water Act and other federal laws. The groups — which in addition to Save the Ba include Committee for Green Foothills, San Francisco Baykeeper and Citizens’ Committee to Complete the Refuge — have enlisted dozens of local elected officials and actor Robert Redford in their cause. They filed the lawsuit in the U.S. District Court in San Francisco.
In a 15-page letter sent March 1 to the Army Corps of Engineers and other agencies, Wheeler concluded that the property, which was underwater and part of San Francisco Bay a century ago before it was diked and filled for salt-making, pre-dates the Clean Water Act. Congress passed that landmark environmental law in 1972 to limit the filling and draining of marshes, bays and other waterways.
Therefore, Wheeler wrote, it “is not subject” to the law’s restrictions on development.
The Clean Water Act regulates “the waters of the United States.” It requires government permits before they can be filled or drained. Before the passage of the act, San Francisco Bay shrank by one-third between 1850 and 1970 due to development that filled the bay.
Environmental groups say the Cargill property, which sits at sea level, is prone to flooding and should instead be converted back to tidal wetlands for wildlife as part of wider efforts to restore San Francisco Bay. They promised to fight any new development.
In their lawsuit, they argue that because the property once was part of the bay, it can easily be restored back to natural conditions. They cite previous court rulings on other properties, including a 2001 case that found the Clean Water Act’s rules apply to “waters that were or had been navigable in fact, or which could reasonably be so made.”
Becerra echoed the same arguments in his lawsuit.
“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,” Becerra said. “We should restore the bay, not build on top of it.”
If the company does try to build in the land, it still will need local approval from the Redwood City Council and several state agencies, including the San Francisco Bay Regional Water Quality Control Board, even though the largest federal hurdle has been removed. Redwood City officials have noted the land is not zoned for housing. Environmental groups have said they prefer new housing to be built away from the bay’s edges in other parts of Redwood City.
In 2003, Cargill, a private company based in Minnesota, sold 16,500 acres of its salt ponds in the South Bay to the public for $100 million, setting up one of the largest wetlands restoration efforts ever attempted in the United States.
Since then, state and federal wildlife agencies have been converting much of the land — which includes property in Southern Alameda County and in Alviso — back to wetlands for fish, birds and public recreation.
But the Redwood City site was left out of the 2003 deal. Cargill said it could be developed more easily than the other properties, many of which were covered in water, and Sen. Dianne Feinstein said she couldn’t raise the amount Cargill wanted from Congress.
