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

Background

The plaintiffs—San Francisco Baykeeper, Save the Bay, Committee for Green Foothills, Citizens’ Committee to Complete the Refuge, and the State of California, Attorney General—challenged the Environmental Protection Agency’s March 2019 jurisdictional determination for the Redwood City Salt Plant. The EPA had found no waters of the United States at the salt-production complex for purposes of the Clean Water Act. Redwood City Plant Site, LLC, also known as DMB Redwood City Saltworks, intervened as a defendant because it had an interest in developing the site.

The property had originally contained tidal marshes and sloughs. Beginning in the early twentieth century, companies built levees and ponds for salt production. The site continued operating as a salt plant after 1951. The opinion states that seawater was brought from San Francisco Bay through intake pipes and tide gates, and that rainwater and other water could flow through a ditch and into First Slough, which empties into the Bay.

The EPA based its determination on the view that former waters converted to “fast land” before the Clean Water Act’s enactment in 1972—or converted lawfully by permit—were not waters of the United States. The agency did not address whether the ponds fell within its own then-effective regulatory definition of protected waters. A 2016 regional draft determination had reached the opposite general conclusion for most of the area, but the final decision from EPA headquarters rejected that approach. The court ordered the draft added to the administrative record because the final decision maker or advisers had considered its contents.

Legal analysis

The court explained that an agency with interpretive regulations must follow them unless later Supreme Court or circuit precedent clearly supersedes them. The EPA’s regional draft had applied the agency’s regulations, but headquarters ignored those regulations and instead relied on Ninth Circuit decisions concerning diked salt ponds and “fast land.” The court found that approach legally erroneous.

The court relied especially on the Ninth Circuit’s decision in Leslie Salt Co. v. Froehlke, which involved the same system of San Francisco Bay salt ponds. The court read that decision to mean that waters remain within Clean Water Act jurisdiction when artificial dikes prevent tidal inundation but the waters would have been periodically inundated by tides if the dikes were removed. The opinion also discussed United States v. Milner, which treated genuinely dry, solid uplands—including certain filled areas—as outside Clean Water Act jurisdiction unless water later overtook them.

Applying those decisions, the court distinguished the site’s levees from its ponds. The parties agreed that the levees themselves were dry, solid “fast lands” constructed before 1972 and were not subject to Clean Water Act jurisdiction. The ponds, however, remained wet, would have been subject to tidal inundation without the levees, and had continuing connections to the Bay. The court therefore held that the EPA’s exclusive reliance on the ponds’ alleged conversion to fast land was contrary to law.

Disposition

The court held that the jurisdictional determination must be set aside under the Administrative Procedure Act, a federal law governing judicial review of agency action. It ordered that the determination be “VACATED AND SET ASIDE” and remanded the matter to the EPA to consider the question anew in conformity with the order.

On remand, the agency must evaluate the extent of the ponds’ connection to the Bay’s chemical, physical, and biological integrity, apply relevant Supreme Court and Ninth Circuit decisions, and consider applicable interpretive regulations and other legally required factors. The court stated that the “fast land” issue was finally determined by its order: the ponds could not be excluded from Clean Water Act jurisdiction on that basis alone. The opinion does not separately state an express grant or denial of each cross-motion for summary judgment, but it does expressly vacate and remand the EPA determination.