California Court Overturns EPA JD on San Francisco Salt Ponds
The N.D. of California yesterday overturned a 2019 EPA JD that found the Carghill Salt Ponds in San Francisco to be not covered by the CWA because they were "fast lands." The 2015 WOTUS rule was in effect at the time the JD was issued, but EPA skirted the WOTUS rule entirely by concluding that the ponds were "fast lands" in 1972 when the CWA was passed, and were therefore not jurisdictional. A leaked EPA Reg. 9 memo from the Obama administration had reached the opposite conclusion. Enviro groups challenged the JD under the APA.
The court concluded that EPA had misinterpreted prior 9th Cir. case law when it reached the conclusion that the ponds, which hold water and have important connections to the Bay, were nonjurisdictional uplands. Because the land at issue would, absent the installed dikes, have been subject to tidal inundation in 1972, they are covered by the CWA.
It will be interesting to see if EPA now attempts to find the ponds nonjurisdictional under the 2020 WOTUS rule. These ponds are arguably an impoundment of a jurisdictional water (S.F. Bay), so arguably are covered under the 2020 rule. See 33 C.F.R. 328.3(a)(3). Adjacent waters are not covered, only adjacent wetlands, and these ponds probably are not wetlands owing to the lack of hydrophytic vegetation. Otherwise, they might fit even the current definition of adjacency. See 33 C.F.R. 328.3(c)(1). Land under these ponds is unbelievably valuable if it can be built upon, so the owner will likely continue to press its case in the courts and with the EPA.
Here's a copy of the decision.
If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.