USEPA Headquarters Dismisses Appeal of U.S. District Court’s More Narrow Jurisdictional Delineation of Salt Ponds Adjacent to San Francisco Bay

April 2021

California Water Law & Policy Reporter, Volume 31, Number 7

On February 26, 2021, the United States Environmental Protection Agency (“USEPA”) filed a motion to voluntarily dismiss the agency’s earlier appeal of a decision by the United States District Court for the Northern District of California rejecting a jurisdictional delineation in which the agency determined that a salt production complex adjacent to the San Francisco Bay was not jurisdictional and therefore not subject to Clean Water Act (“CWA”) section 404.  The court’s October 2020 decision found that USEPA failed to consider whether salt ponds associated with the Redwood City Salt Plant fell within the regulatory definition of waters of the United States (“WOTUS”), and instead erroneously applied case law to reach a determination that the salt ponds were “fast lands,” which are categorically excluded from CWA jurisdiction.  “Fast lands” are those areas formerly subject to inundation, which were converted to dry land prior to enactment of the CWA.  San Francisco Baykeeper, et al. v. USEPA, et al., Case No. 20-17359.

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