Cargill Tries to Gut the Clean Water Act to Build Homes in The Bay

Cargill Salt and its developer partner DMB revealed last month that they attempted to secure a key exemption from the federal Clean Water Act that would have weakened the nation’s top water pollution law for the benefit of their reckless development scheme in Redwood City. And they almost succeeded: the companies convinced a key official at U.S. Army Corps of Engineers headquarter to unilaterally reinterpret the law. Thankfully, the U.S. Environmental Protection Agency intervened to block Cargill’s effort, at least temporarily.

The revelation shows Cargill is still desperate to advance its massive housing development on Bay salt ponds, and even is willing to gut the nation’s most important water protection law without any public process or Congressional debate. Through vigorous behind-the-scenes lobbying of a few federal government lawyers, Cargill almost upended laws that have reduced water pollution and protected public health for more than 40 years.

In August, Cargill released documents to a Redwood City newspaper showing that general counsel of the U.S. Army Corps of Engineers tried to instruct the agency’s San Francisco District to decline federal oversight of the Redwood City salt ponds where Cargill wants to build thousands of homes.

The Daily News reported that the Corps’ Chief Counsel, Earl H. Stockdale, signed a memo in January exempting the Saltworks site from Clean Water Act coverage because the ponds contain “liquid” that has “been subject to several years of industrial salt making processes.” His memo repeats nearly verbatim arguments DMB made two years ago that the concentrated bay water in the ponds is actually not water.  Stockdale’s memo also suggests that most of the ponds are also not covered by the Rivers and Harbors Act, which discourages construction of structures on “navigable water”.

If adopted as policy, Stockdale’s memo would overturn decades of Corps precedents in San Francisco Bay, including the Corps’ 2010 conclusion that development on the Saltworks site does require federal permission because those ponds do contain water protected by the Clean Water Act and Rivers and Harbors Act. Stockdale’s memo was issued without any public process or review, and without consultation with the U.S. Environmental Protection Agency (EPA), which has primary authority over implementation of the Clean Water Act.

When the EPA discovered Stockdale’s memo, it intervened to halt any hasty decision about the Saltworks property. EPA officials realized that Stockdale’s reinterpretation could not only block protection of Bay salt ponds, but also jeopardize regulation of polluted runoff from mines and other sites across the nation. EPA Region 9 Administrator Jared Blumenfeld insisted that EPA have final say on the Clean Waters Act “in light of the significance of the issues raised by the Corps’ proposed approach and the ecological importance of the San Francisco Bay waters at issue.”

The EPA’s intervention prompted senior Army Corps officials to suspend any action on the Cargill site. They have launched an internal review of Stockdale’s memo and how its sweeping change to federal water law could be snuck through the regulatory process without their knowledge, public review, EPA consultation, or action by Congress.

Even if Cargill wins the ruling it seeks from the Army Corps, it will still face hurdles from other state and federal agencies to secure permits for developing on the Bay shoreline.  And no development project on the Redwood City salt ponds can advance without initial approval from the city itself.  Cargill’s formal project proposal was withdrawn from the city in May 2012, after three years of strenuous opposition from local residents and Bay Area elected officials prevented the completion of even a draft environmental analysis.

Residents objected to the city council considering the project because it was at odds with Redwood City’s General Plan and zoning, state and federal laws. Local opposition to the project prompted hundreds of residents to establish a new citizens group, Redwood City Neighbors United. These residents continue to object that Cargill’s plan would destroy restorable wetlands, add to traffic gridlock, overtax drinking water supplies, encroach upon industries at the Port of Redwood City, and put thousands of new residents at risk of floods from rising seas.

For years, Cargill and DMB have acted as if they were above the law, but they have made no progress convincing local, state and federal agencies their Saltworks project is legal. Now they have arrogantly disclosed their own effort to gut the laws that protect San Francisco Bay and the nation’s water so they can boost their profits.

These companies have been tireless and shameless, but Save The Bay and our allies remain vigilant to Cargill’s sneak attacks, and we have mobilized more than 25,000 Bay Area residents and more than 150 elected officials to tell Cargill to abandon its plan to build in the Bay.

Please help us spread the word! If you haven’t already signed our petition telling Cargill to abandon its plan, do so today, and spread the word to your friends here today.

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.