In The News
Taking battle to feds
Saltworks developer seeks to avoid federal environmental rules
BY BONNIE ESLINGER
Daily News, 5/31/12
In a move that could allow it to elude some environmental regulations, DMB Pacific Ventures on Wednesday asked two federal agencies to declare whether they have any say over what happens to the Cargill salt flats in Redwood City it wants to develop.
DMB, which early last month withdrew its polarizing Saltworks project and indicated it will later submit a scaled-back proposal, said it wants the Army Corps of Engineers and the Environmental Protection Agency to determine that the vast majority of the 1,400 acres of salt flats are not “waters of the United States” subject to their authority.
If that’s the case, DMB’s development wouldn’t have to adhere to the federal Clean Water Act or the Rivers and Harbors Act, both of which tightly restrict what kind of developments can occur on bayfront property.
“We need some clarity from the federal regulatory agencies as we move forward and we actually think that’s important enough we’re going to approach them before we bring and unveil our revised proposal to the city,” DMB Senior Vice President David Smith said.
Three years ago, DMB submitted an application to Redwood City proposing to build as many as 12,000 homes, several office buildings, shops and schools on one half of Cargill’s property and provide parks, open space and restored tidal marshes on the other half. The proposal has drawn fierce opposition from environmental groups, area politicians and others who contend the property should be restored to its original state as wetlands.
Without being specific, Smith said the company is working on a revised proposal in response to public feedback that calls for half of the original development acreage and additional wetlands restoration. But that plan won’t be released until the company settles the matter of jurisdiction, which could take at least several months, he said.
If the Army Corps and EPA rule that they do have jurisdiction over the Cargill site, that in itself would not necessarily kill the Saltworks project but could make the developer jump through a plethora of costly and time-consuming hoops.
Smith told The Daily News he wouldn’t rule out legal action if the agencies conclude they do have jurisdiction.
In a letter accompanying DMB’s request, Smith asserts that the Cargill property doesn’t fall under either federal agency’s jurisdiction because “major portions” have been used for agricultural and industrial operations as early as the 1860s and are now “surrounded by levees which sever any connection to the San Francisco Bay.”
Smith wrote that today’s site “does not constitute ‘waters of the United States’ under Corps and EPA regulations,” a position supported by recent case law. One of the cases he cites led to a 2007 decision by the U.S. Ninth Circuit Court of Appeals in San Francisco that Cargill’s 17-acre site adjacent to the Mowry Slough near Newark doesn’t fall under the Clean Water Act. The appellate court struck down a district court’s earlier ruling that the property was subject to the act because it was next to San Francisco Bay.
Jason Flanders, program director of San Francisco Baykeeper — one of two environmental groups that sued over the Newark project — said DMB shouldn’t rely too heavily on that ruling because it was site specific. Ultimately, federal agencies have authority if there’s “chemical biological connectivity” between a salt pond site and the Bay, he said.
“You can’t just partition off a part of the Bay and say it’s no longer part of the Bay,” Flanders said.
Merry Goodenough, district counsel for the Army Corps of Engineers, said there is legal precedence for determining the agency has jurisdiction over salt ponds, particularly under the Rivers and Harbors Act, if it could be shown that with improvements, tidal waters could be restored to “navigable waters.”
Despite what the Army Corps and the Environmental Protection Agency determine, the Saltworks plan would still have to be approved by more than a dozen other agencies, departments and boards for approval, as well as Redwood City.