Cargill’s 370-page attack on the Bay-Part 2

The Redwood City salt ponds, full of water. Credit: Stephen Knight

Back in September, I wrote about the 370-page attack on San Francisco Bay by Cargill and its Arizona-based luxury housing developer DMB Associates. These powerful companies are currently maneuvering to avoid key federal environmental rules like the Clean Water Act from applying in any way to salt ponds in San Francisco Bay.

That post was focused on Cargill’s incredible argument that the Bay water that evaporates in these ponds to make salt (see photo) is not “water” at all. Instead, their lawyers call it “brine” or use other euphemisms. A lawyer for the developer told a reporter that my post was “completely wrong” but then confirmed the opposite, stating that Cargill/DMB seek to make the case that the site is “not subject to the Clean Water Act or the Rivers and Harbors Act.”

So, no amount of legalese can change the fact that Cargill’s salt is made from San Francisco Bay water brought into its salt ponds, where it is held and evaporated behind levees. Right?

In fact, Cargill’s remarkable filing to the Environmental Protection Agency and US Army Corps of Engineers also includes other manipulative, incredible claims, such as that the pond levees do not exist for the sake of “impounding” water:

The Salt Plant is not “impounding” (i.e., “collecting” or “confining”) anything. …. It is more akin to an “expoundment” because it excludes or keeps “out” (as opposed to confining “in”) waters of the United States…. It does not retain or impound such waters and their containment behind the levees would be entirely contrary to the function and purpose of the Salt Plant.” (pg 50-51)

It would be interesting to hear Cargill’s lawyers explain how their position is strengthened by putting quotation marks around simple words like “in” and “out.” But Cargill is convinced it is above the law, so don’t expect an answer any time soon.  These transparently self-serving arguments are almost funny. But not quite. Because this matter is deadly serious for the Bay.

Cargill’s partner DMB continues to insist that they will soon be back with their massively controversial projectPlease don’t let Cargill get away with it – spread the word.

 

A Wonky Year Ahead

Last year included some tremendous wins for Save The Bay and our team of Wonks.  From Cargill pulling their proposal from the Redwood City planning process, to the successful passage and implementation of bag bans in Alameda County, San Francisco, and nearly a dozen other jurisdictions, it’s been a busy year.

As we look toward 2013, there continue to be exciting opportunities to improve the health and sustainability of the Bay, and more than a few fights that we’re gearing up for (and hope you are too).

 

Don’t Pave My Bay

Our “Don’t Pave My Bay” campaign to stop Cargill’s destructive development in Redwood City. In 2013, we’ll continue to work hard, day after day, to protect this key piece of the Bay from being filled.

  • Cargill’s developer has already announced plans to submit a revised proposal to put thousands of houses on these below-sea-level, restorable salt ponds.  We don’t know when they’ll submit the new plans, so keep your eyes and ears peeled, because this fight is far from over.
  • Meanwhile, the company is busy pressuring federal regulatory agencies to declare the salt ponds “exempt” from the Clean Water Act and other laws that protect the Bay.  The outcome of this ruling could give the project a second life, or throw up a host of new challenges.
  • We will continue to encourage Cargill to sell or donate these ponds so they can be included in the Don Edwards National Wildlife Refuge and restored back to much needed tidal marsh.  Last year supporters like you petitioned Cargill to sell the ponds, and we’ll continue to advocate for restoration over development.

 

Clean Bay Project

The Clean Bay program continues to build momentum and support from cities and counties across the Bay Area.  As of this year, more than half of the Bay Area is covered by either a plastic bag or polystyrene ban – or both.  Here’s what we are looking forward to in the year ahead:

  • Cities in Santa Clara continue to be mostly absent from the growing momentum to eliminate Styrofoam from our food ware stream.  We’re working with the City of San Jose and our local supporters to ensure that that the city passes a Styrofoam food ware ban in February.
  • The Contra Costa County Board of Supervisors is taking steps toward banning plastic bags and Styrofoam.  County staff have been asked to develop a set of options for the Board to explore, and Save The Bay is working closely to make sure any proposal underlines the impacts of plastic bags to our local waterways and the Bay.
  • It’s 2013 – that means Bay Area cities have a little more than 1 year to show that they have reduced the amount of trash flowing through their waterways by 40 percent, with a 70% reduction by 2017. How close are our cities to reaching these goals?  We’ll keep you posted.

 

Restoration Funding Campaign

We haven’t shared very much about our ongoing work to restore 100,000 acres of Bay wetlands, but all of that is about to change.  In the next few weeks, you’ll hear a whole lot more about our efforts in this area.  The entire staff here at Save The Bay is incredibly excited about the work we’re doing, and we can’t wait to share it with you.  Stay tuned…this is an announcement you won’t want to miss!

Cargill Misleads Gov’t Agencies about Salt Pond Wildlife

Video of shorebirds on the Redwood City salt ponds
Click the image above to view a video of shorebirds on the Redwood City salt ponds

One of Cargill’s most consistent efforts in its campaign to pave as many as 1,436 acres of restorable salt ponds in Redwood City has been an attempt to mislead the general public, especially voters in Redwood City, into believing that that the salt ponds have little value to wildlife.

Cargill/DMB representatives have repeatedly denied the significant wildlife use of these salt ponds – saying, for example, that there is “nothing alive” on the salt ponds and that birds would “burn their fannies” if they tried to land on these two square miles of the Bay. Eneas Kane, the CEO of developer DMB Pacific has even gone so far as to describe the salt ponds as “inhospitable to man or beast.”

This is a theme that is repeated in Cargill’s official 370-page submission to the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, where the company argues that the Redwood City salt ponds should be declared “exempt” from the Clean Water Act and other federal regulations that protect the Bay.

One of the attachments in their submission to the federal agencies is a 2002 “Significant Nexus Analysis” performed by Cargill’s long-time consultant, Mike Josselyn, that outrageously claims that the Redwood City salt ponds are only used on a “relatively limited basis by birds” and that the salt pond site “does not contribute to the integrity of the surrounding watershed.”

We understand why Cargill would prefer to ignore, downplay and outright deny wildlife use of the Redwood City salt ponds, but the annual presence of thousands of migratory shorebirds on the site is simply indisputable.

PRBO Conservation Science, a leader in studying birds along the Pacific Flyway, notes that San Francisco Bay, including the salt ponds, is a recognized site of hemispheric importance for migratory shorebirds. PRBO’s studies document that the Redwood City salt ponds are home to at least 24,800 shorebirds annually, including several threatened species. They describe the Redwood City ponds as having “among the highest [bird] counts from the West side of the Bay between the Bay and Dumbarton bridges” making up more than a quarter of the total shorebird population of the region. They also believe these numbers are an underestimate.

We could cite additional reports, but it doesn’t take reams of scientific data to prove that Cargill has been misleading state and federal permit agencies about the habitat value of the site. Just take a look at the video in the top right of this blog post, or any of the images in Save The Bay’s photo set of shorebirds on the Redwood City salt ponds to see for yourself. Do you see birds “burning their fannies?”

Wonky Wed: Cargill’s Claim of Corporate Responsibility a Stretch

Two geese swim near the Cargill salt ponds in Redwood City
Cargill’s development plans are the largest current threat to San Francisco Bay.

At best, Cargill’s 2012 Corporate Responsibility Report can be described as an optimistic view of America’s largest private company’s impact on the planet. At worst, as the Rainforest Action Network wrote, Cargill’s report is “a fancy PR dance” around a business model that “relies on devastating natural systems and communities for profit.”

Strong words, but it’s easy to see how one might come to this conclusion.

Cargill claims to be a “responsible global citizen” committed to “reducing [its] environmental impact.” Yet, here in California, the company has spent millions of dollars trying to pave over as many as 1,436 acres of restorable San Francisco Bay salt ponds in Redwood City, destroying habitat for more than 20,000 migratory shorebirds in order to build thousands of houses below sea level. Not only are Cargill’s plans irresponsible – they make up the largest current threat to San Francisco Bay.

Cargill’s report also highlights what it calls its work “protecting marine environments,” “preserving rivers,” and “supplying clean, safe water.” Yet here in the United States, Cargill has been fined repeatedly for spilling toxins into San Francisco Bay, been called on the carpet for making the Illinois River one of the most polluted waterways in the country, and are still cleaning up a 65 million gallon acidic wastewater spill in Tampa Bay, described by local press as “one of the worst local environmental disasters in years.”

Cargill says it wants to be the global leader in “protecting the planet” and “conserving scarce resources.” Surely if there is any place to demonstrate that leadership, it is here in San Francisco Bay. Urban sprawl, massive fill and diking have already reduced the Bay’s size by one third. Now that Cargill is finished making salt in Redwood City, it should ensure a lasting legacy of restoring the Bay, not filling it.

Learn more about Cargill’s plans to build thousands of houses on restorable salt ponds in San Francisco Bay, and take action to support the residents that are fighting back.

Cargill’s 370-page attack on the Bay

The Redwood City salt ponds
Does this site look wet to you?

Cargill and its Arizona-based luxury housing developer DMB Associates withdrew their controversial bay fill plan in Redwood City back in May. They announced they would return with a revised development after working to avoid key federal environmental rules like the Clean Water Act from applying in any way to salt ponds in San Francisco Bay.

If you ever wondered what the argument to support such an outrageous claim might look like, you’re in luck. Recently, the US Army Corps posted Cargill’s submittal on line. Click on that link with caution: at 37 megabytes and 369 pages, there is a lot more here to chew on than was found in the short, upbeat press release Cargill and DMB circulated for public consumption in May.

In their May press release, Cargill/DMB stated that they wanted to “clarify certain aspects of the federal regulatory approval process.” No kidding. This document features Cargill’s lawyers’ blunt assertion that the salt ponds are unregulated and not part of the Bay.

Central to the argument is the assertion that all the Bay water Cargill uses to evaporate and make salt – it’s not water at all. This water is instead called an “intermediate industrial product,” it’s “brine,” or sometimes it’s just “liquid.” Whenever Cargill refers to the ponds, it avoids the word “water.” Why? Because water sounds like something that should probably be regulated under the Clean Water Act.

These key environmental laws are critical tools in limiting the pollution of our waterways and preventing unnecessary fill that destroys our wetlands, so important to the Bay. Those protections could jeopardize Cargill’s ability to fill and destroy these baylands. And so the new strategy is to get federal agencies to declare the ponds “exempt,” because Cargill is convinced it is above the law.

This endless legal obstructionism is taking place behind closed doors and out of public view, where Cargill hopes its lobbyists and legal threats may have the most impact. And so I am sharing this obscure legal document with you today: because the Bay Area won’t stand for America’s largest private corporation escaping rules that apply to everyone else.

Save The Bay is going to stay on the case, and we appreciate your help in spreading the word.

UPDATE (9/27/2012):

Cargill’s developer DMB confirmed the substance of this blog post on Wednesday in this news article. Contacted by a reporter, a DMB spokesman first claimed that Save The Bay’s blog post was “completely wrong” – and in the next breath confirmed that Cargill’s position is that the Redwood City salt ponds “are not subject to the Clean Water Act and Rivers and Harbors Act.”

The spokesman also reiterated that Cargill and DMB remain “very committed” to pursuing the Bay fill proposal.