Oakland Tribune

Ponds pact report misses Sept. deadline
Negotiations between state and Cargill still being hammered out behind closed doors
By Douglas Fischer

Monday, October 07, 2002 -

The details were due Sept. 16 -- a pact outlining liabilities taxpayers will assume and the condition of 16,500 acres of South Bay ponds when Cargill Inc. transfers ownership and salt-making rights to state and federal managers.

Three weeks past that deadline, only the negotiators know what the sticking points are. Those outside the closed doors -- including lawmakers and the taxpayers who will foot the bill -- can only wait.

"What I have heard (the California Department of) Fish and Game say repeatedly, which is very encouraging, is that they have taken lessons learned in the North Bay," said Stuart Siegel, principal scientist with Wetlands and Water Resources, who has studied Bay Area restorations. "Of course, to what extent is my question."

When Gov. Gray Davis, Sen. Dianne Feinstein and a host of dignitaries announced the $100 million South Bay deal in May, they also signed a broad non-binding framework to guide negotiators.  Compromise expected

What's expected is a finely wrought compromise that negotiators warn cannot be changed. But the bulk of the state's share is being fronted by the California Wildlife Conservation Board, which means the deal needs a public hearing and a vote.

"I feel confident that these things are being talked about," said Sen. Byron Sher, D-Stanford and the chairman of the Legislature's Select Committee on Baylands Acquisition. "But I have no way of knowing that they're being resolved in ways we talked about."

Negotiators don't want to announce a deal, Sher said, then have a hearing "where people get up before the Wildlife Conservation Board, including me maybe, and say that this is a flawed agreement."

Probably the biggest lightning rod is the condition of the ponds as ownership changes hands.

Here the state's 1994 purchase of 10,000 North Bay acres from Cargill is a striking example of what not to do.

Those ponds hadn't been used for a while and were deteriorating when the state bought them.

"We took them pretty much as-is," said Carl Wilcox, the Fish and Game habitat conservation manager serving as regional lead on the Cargill acquisition.

The South Bay properties are in better shape, Wilcox said, with Cargill starting to dilute the waters to meet future discharge requirements.Cargill's responsibility

Cargill has agreed to maintain the ponds until they are diluted enough to open the levees. The goal is to rehabilitate the ponds so that when water flows in at high tide, it can flow back out at low tide without pulling a toxic salt plume into the Bay.

But there's a caveat: No permits are in place, and if regulators haven't approved discharge standards by 2004, Cargill washes its hands of that responsibility.

Environmentalists call that deadline audaciously optimistic, given that Fish and Game still hasn't even applied for permits for its North Bay holdings and for Bair Island, purchased in 1998. The state received permits 11/2 years ago for the Baumberg Tract near Hayward, purchased in 1996.

But Cargill doesn't want open-ended exposure, given substantial maintenance costs.

"The lesson from Napa is that there are big costs associated with delays," said Cargill spokeswoman Lori Johnson. "There really needs to be some kind of a date that is a target date that everyone can work toward."

Other details could prove equally vexing.

Cargill will retain salt-making operations on 11,000 acres around its Newark operations -- 8,000 of which are on refuge land where it owns extraction rights.

Under current law, Cargill has no obligation to restore that land should it cease operations. Given the amount of bittern and other concentrated brines Cargill is stockpiling there as it prepares for the handoff, activists with the Citizens Committee to Complete the Refuge think some sort of protections for those lands should be written into a sale agreement.

There's the question of what happens if there's a dispute, and how much does the federal government certify the land is worth for Cargill's tax purposes.

And then there's the levees. The North Bay, surrounded by agriculture, has essentially no flood control issues. So when Fish and Game motored to Pond 2A and blew a hole in the levee with $40 worth of dynamite during a 1997 flood, it was no big deal.

That approach won't work in the South Bay, where the agency would find itself in charge of the primary flood control measures for low-lying San Jose, Sunnyvale and Redwood City.