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Supreme Court ruling could affect Saltworks outcome

Supreme Court ruling could fast track Saltworks II.

A couple of months ago the US Supreme Court handed down a ruling against the EPA's authority to stop development on private land that could have a major affect on whether the Saltworks project ever gets started again.  The case, Sackett v. EPA, was over , on a private lot, in the middle of a housing development, caused by construction debris that clogged a drainage ditch, constituted a wetland.  No, I'm not kidding.  Went all the way to the Supreme Court who said to the EPA, "What?  Are you stupid?" and ruled for the Sacketts.

At question here is whether the EPA has jurisdiction over private property that has, for a significant amount of time, been anything but a wild habitat and is zoned locally for development.  The EPA says they are going forward as though nothing has happened, so expect more lawsuits in the near future.  But what is more interesting is a letter I got from David Smith at DMB Pacific Ventures today.

In the letter, Mr. Smith said they are formally asking the EPA and the US Army Corps of Engineers whether they believe they have jurisdiction over the Saltworks site.  This question is directly tied to Sackett v. EPA.  If it goes against the Saltworks, that might be the end of the project.  If it goes for the development, it could fast track it. 

The normal process for a development like this is to get the local jurisdiction's approval and then go to the state and feds, which makes local councils a little gun shy to approve something their political betters will shoot down.  That has been a major point of contention from Saltworks opponents.  If DMB-PV is successful in getting the Corps and the EPA out of the process, it streamlines everything.  How, successful can they be, though?  Well, thanks to Sackett v. EPA, possibly very successful, considering that DMB-PV has access to a lot more legal talent than an Idaho homeowner.  Plus, DMB-PV has pulled back the project borders to a very interesting piece of the property.

The project will now encompass only the crystallizing beds, the most heavily engineered where there has been no discernible wetland and no navigable waterways going back to the mid 1800s.  On top of that, the land in question is designated as "urban reserve" by the current general plan, set aside for the expansion of "the limits of the urbanized area of the City."

The EPA has jurisdiction only if the land is identified as wetlands (it isn't under then new borders) or directly touches existing wetlands (it doesn't) and the Corps has jurisdiction if there were viable waterways (it did under the old and dead proposal but not now).  The city had a problem with having to rezone the land to permit development, but the new directive from DMB-PV eliminates that problem.

We won't know the outcome of this for several months, considering we're going into a presidential election and no one wants to make a decision that the next or continuing administration would not approve. So don't expect to see any formal proposals coming out anytime soon.  Conceptual drawing maybe, but nothing official.  Here's what we probably won't see, however.

Wetland restoration.

The original plan called for the restoration of 400 acres of wetlands on the developers' dime.  That 400 acres is mostly comprised of the ponds just beyond the crystallization beds.  Turn those into wetlands in side of 3 years and the EPA can come back into the process.  But the opposition to the project killed that possibility. 

I'm pretty sure Cargill will end up donating that land or selling it at market cost as they have with 40,000 other acres.  But the cost of doing the restoration will fall on those who have worked so hard to stop the development. 

What am I saying?  That cost will fall on the taxpayer.  Save the Bay and their buds will just use the remaining program to continue to raise funds.  How fun.

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m,manning June 02, 2012 at 02:25 PM
The EPA did not bring about the current ideology that the destruction of the bay should cease. It began and continues with the effort of local citizens who realize we have something special and are not willing to sit back and watch handfulls of self centered, short sited groups or individuals destroy it.
Lou Covey, The Local Motive June 02, 2012 at 03:08 PM
Never suggested it did start it. In fact, the EPA does not have the power to stop development on the bay. It only has the power to enforce environmental regulations regarding the condition of the bay and establish guidelines for that development...unless it doesn't have authority regarding the development. It is a major hurdle for DMB-PV to leap over and they may not have to.
Cheri Hahne August 01, 2012 at 09:52 PM
I loved your comment that "the cost will fall to the citizens." No matter what aspect of this development is under discussion, the cost falls to the citizens. Needed school capacity from even a development of 6,000 housing units, (eventual) levee maintenance as we now have from Redwood Shores (oops, their 20 years are up now,) all the traffic issues from new stop lights, new shuttle buses/public transportation, widening streets, or whatever else may be necessary--every aspect of this housing/economic development project NOT included in the public cost estimates in the award-winning, already-approved 20-year General Plan will fall to the citizens. Only DMB/Cargill makes money on this--which is why they want to do it rather than take the significant tax deduction from donating the land to the Public Trust.
Lou Covey, The Local Motive August 02, 2012 at 12:16 AM
Cheri, you forget that until the project was built out and sold, which would be about 20 years after approval in the best scenario Cargill and DMB pay the property taxes and fees related to the development, which translates to hundreds of millions of dollars into the city and school district coffers. Not a dime comes from the pockets of current residents during that time. That does not include the land that Cargill would donate to the infrastructure needs, which includes parks, roads, the levees and everything else you mention. So, you are wrong, the cost is not born by the public during the development phase, it is born by the developer. After that, Homeowner Organization fees kick in to cover the cost of maintainence, so after the development is complete, the taxes and fees paid by the new resident fund the infrastructure, not the current residents... most of whom will be long gone.

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