Client Alert


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Clark Morrison

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Scott B. Birkey

Land Use & Natural Resources

District Court Defines Army Corps’ Clean Water Act Jurisdiction over
Bay and Coastal Properties

In the latest legal skirmish over the reach of federal jurisdiction over wetlands along the shoreline of the San Francisco Bay, Judge Alsup of the United States District Court for the Northern District of California has determined that the Clean Water Act applies to the 1,200-acre salt pond network located along the Bay in Redwood City.  The court’s decision overturns a 2019 determination by the Environmental Protection Agency (EPA) that the salt ponds, which are separated from the Bay by a series of dikes, are beyond the reach of the federal government.  In its ruling, the court established a set of legal principles that may be critically important to landowners with ocean - or bayfront property, particularly in an era of sea level rise.

The salt ponds in question were originally constructed in the early 1900s, and then expanded in the 1940s in accordance with permits from the Department of the Army, well before passage of the Clean Water Act.  When the Clean Water Act was enacted in 1972, however, a decades-long legal fight ensued over whether the Corps of Engineers and EPA – which administer wetland fill permits under the Clean Water Act – can regulate activities occurring within the salt ponds.  The battle came to a head in recent years in light of proposals to develop portions of the salt ponds with housing.

The fundamental question in this case is whether construction of the dikes that separate the salt ponds from the San Francisco Bay essentially prevented federal jurisdiction from reaching the diked-off areas when the Clean Water Act was enacted.  Citing a 1978 court decision involving these same salt ponds (and a 2009 decision involving land in Washington State), Judge Alsup ruled based on that case law that the Clean Water Act essentially applies to any areas that would be subject to inundation if the dikes did not exist.  He further found that EPA improperly ignored its own regulations in finding the salt ponds to be excluded from the Clean Water Act, and he ordered the agency to reconsider its determination in light of these regulations and the applicable law.

In his ruling, Judge Alsup established an important exception that may be relevant to properties susceptible to flooding due to sea level rise, whether now or in the future.  Judge Alsup stated that any areas of the Bay that were converted to dry land prior to 1972 (when the Clean Water Act was passed) are excluded from federal jurisdiction.  He further stated that any such lands – so long as they were created prior to 1972 - would remain free of federal jurisdiction even if protected by artificial levees, bulkheads or other improvements intended to protect them from tidal action.  He warned, however, that if any such lands are ever overtaken by tidal “encroachment” (which could be understood to mean sea level rise), then the permitting requirements of the Clean Water Act will apply to those lands.

It is unclear at this time whether Judge Alsup’s ruling will be appealed.  Moreover, if EPA were to reconsider its position with respect to the salt ponds, it would do so under new federal regulations (which became effective in June 2020) that significantly restrict the government’s jurisdiction under the Clean Water Act as compared to the old regulations at issue in this case.  In any event, it is likely this battle over the reach of the federal government’s Clean Water Act jurisdiction is far from over, particularly given the significant and recent controversies surrounding what constitutes “waters of the United States” and the federal government’s regulatory power over wetland fill. 

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