San Francisco Baykeeper v. U.S. Environmental Protection Agency

Background

Plaintiffs San Francisco Baykeeper, Save the Bay, Committee for Green Foothills, Citizens’ Committee to Complete the Refuge, and the State of California challenged an EPA jurisdictional determination concerning the Redwood City Salt Plant. Redwood City Plant Site, LLC intervened as a defendant and had an interest in developing the site.

The site consists of industrial salt ponds and related facilities bordering the southwestern San Francisco Bay. Before development, the property contained tidal salt marshes and sloughs. Levees and dikes converted portions of the marshlands into salt ponds. The ponds have been used for salt production since the first half of the twentieth century, and the operation remained largely the same after 1951.

The ponds receive water from the Bay through intake pipes and tide gates connected to First Slough, which the opinion describes as a traditionally navigable water of the United States. Excess water also drains through a ditch and into First Slough. The EPA issued its final jurisdictional determination in March 2019, concluding that the salt ponds were not “waters of the United States” under the Clean Water Act because they had been converted to “fast land” before the Act was enacted in 1972.

The parties filed cross-motions for summary judgment. Plaintiffs also sought to complete or supplement the administrative record. The requested material included a 2016 draft determination prepared by the EPA’s regional office. That draft had found that most of the area qualified as waters of the United States under several theories, including navigability, impoundment, and a significant connection to San Francisco Bay. The EPA acknowledged that the final decision maker or advisers had considered the draft’s contents.

Legal framework

The Clean Water Act regulates certain “waters of the United States.” Section 404 generally addresses dredging and filling in covered waters, while Section 301 prohibits unpermitted discharges of pollutants into navigable waters. The 2015 regulations in effect when EPA acted included traditionally navigable waters, impoundments of covered waters, adjacent waters, and certain waters with a “significant nexus” to traditionally navigable waters.

The court focused on two Ninth Circuit decisions. Leslie Salt Co. v. Froehlke concerned the same San Francisco Bay salt-pond system and held that Clean Water Act jurisdiction extended at least to waters that were no longer subject to tidal inundation because of artificial dikes. United States v. Milner discussed “fast land,” which the court described as dry, solid upland, including certain filled former tidal marshland. Under the court’s reading of those decisions, dry, solid uplands and developed fast lands generally fall outside Clean Water Act jurisdiction, but wet salt ponds that would be subject to tidal inundation without artificial barriers remain covered.

Court’s analysis

The court held that EPA improperly skipped its own still-effective interpretive regulations and relied solely on its “fast land” theory. An agency that has interpretive regulations must follow them unless controlling law has clearly displaced them. The court also explained that an agency may change its interpretation, but it must acknowledge the change and provide good reasons for the new policy. The court found that EPA had not properly done so here.

The court read Leslie Salt as controlling the central issue. Without the salt-pond levees, at least some of the ponds would have been inundated by tides in 1972 and would be inundated today. The ponds also maintained a water connection to San Francisco Bay through the tide gate and intake pipe. According to the court, those facts required reversal of EPA’s determination that the ponds were outside Clean Water Act jurisdiction based on pre-1972 conversion to fast land.

The court distinguished the levees from the ponds. The parties agreed that the levees themselves, as dry, solid fast lands constructed before the Clean Water Act, were not subject to Clean Water Act jurisdiction. The ponds, however, remained wet, were not uplands, and had continuing connections to the Bay. Extending the fast-land concept to these ponds would, in the court’s view, overturn Leslie Salt, which had held that the same salt ponds were subject to Clean Water Act jurisdiction.

The court did not enter judgment for plaintiffs on the entire jurisdictional question. It noted that the Supreme Court had issued major Clean Water Act decisions after Leslie Salt concerning the required connection between a site and navigable waters. The court therefore determined that the better course was to send the matter back to EPA to evaluate the ponds under those decisions, Ninth Circuit law, and applicable regulations.

Disposition

The court held that EPA’s finding that the salt ponds had been converted to fast land before the Clean Water Act was contrary to law. Under the Administrative Procedure Act, the court VACATED AND SET ASIDE the jurisdictional determination and REMANDED the matter to EPA for a new decision. EPA was directed to consider the extent of the ponds’ connection to the Bay and all other legally required factors, but not to rely on the “fast land” issue, which the order treated as resolved.

As to the administrative record, the court ordered that the regional draft determination be added because the final decision maker or advisers had considered its contents. The court stated that the motion to supplement was otherwise DENIED.