October 10, 2023
In May 2023, the United States Supreme Court handed down a ruling in an environmental case, Sackett v. Environmental Protection Agency, that will very likely change the future of clean water in this country, along with the lives of property owners whose property contains wetlands or other waterways.
Before getting into Sackett’s side-effect on California property owners, let’s break down the players in this new environmental protection system: the Clean Water Act, Waters of the United States, Sackett v. Environmental Protection Agency and Citizen Suits.
What Is The Clean Water Act?
Passed in 1972, the Clean Water Act (CWA) is the primary tool for protecting United States waterways and wetlands to ensure they are safe for wildlife, swimming, and as sources of drinking water. Since its inception, there has been a constant push and pull between those subject to its regulations -- like businesses, property owners, and developers -- and environmental agencies and activists to weaken or strengthen the CWA’s regulatory teeth. This tug of war primarily centers on the definition of what is classified as “waters of the United States” (WOTUS).
What Are Waters of The United States?
For most of us, waters of the United States are, logically, bodies of water within the United States’ borders. But, as with most things legal and political, the CWA definition not so straightforward. When the CWA was first implemented, WOTUS was broad and inclusive. However, over time and countless lawsuits designed to limit the definition, and in particular after Sackett, WOTUS has essentially reduced the definition. We have yet to see where future cases draw the line for federally-protected v. non-federally protected waters. But Sackett moves towards excluding from the WOTUS definition more wetlands and smaller, less visible bodies of water, that are a vital part of the United States water system.
The Implications of Sackett v. Environmental Protection Agency
Redefining WOTUS could remove at least 118 million acres of United States wetlands from protection under the CWA. Wetlands are areas that provide a variety of services: they store water to prevent flooding, filter pollutants and support forestry, seafood and food production and recreation. Historically, WOTUS included a significant number of wetlands. Yet in Sackett, the Supreme Court looked less at science and more towards the dictionary definition of words like “adjacent” when trying to determine how to protect water quality.
This probably leaves many California property owners somewhat relieved, believing they have less to worry about when it comes to development projects and complying with the Clean Water Act. Not so fast! This is California and it’s never that simple.
What Is A Citizen Suit?
Citizen suits are not a new concept to the United States’ environmental law landscape. The Clean Water Act permits members of the public to initiate lawsuits in federal court against parties who violate the Act. The idea is to expand the reach of the environmental regulations and improve the rate at which laws are enforced at the federal level. Notably, the citizens who bring these suits are not required to be individuals, much less even United States citizens. In fact, more often than not, environmental activist organizations, sometimes referred to as “watchdogs,” are plaintiffs in these federal citizen suits.
The Clean Water Act, Waters of The United States, Citizen Suits and California
Even before Sackett, environmental groups had begun a push for legislation in California to establish citizen suit rights for enforcing state-based environmental laws, using the federal procedure as a guide. Thus far, their efforts have not resulted in such as drastic change in the law. But if the Supreme Court continues to put more of California’s waters under a state-regulated, not federal-regulated, umbrella, expect to see this reluctance change.
If these attempts succeed and Sacramento passes such a law, California’s water bodies will be subject to California environmental regulations law and the enforcement of California regulations by citizen suits. Owners of property who may think they are off the hook for liability under the Water Act, may now find themselves a target for liability under the Porter-Cologne Water Quality Control Act or California Human Right to Water law. For virtually every federal environmental regulation, California has its own version at the state level.
Allowing citizen suits to enforce state environmental regulations means property owners discharging into a body of water only within California, will be, of course, open to liability under California laws, but newly open to enforcement by their neighbors or the local environmental organizations. The ultimate result would be many more businesses and homeowners being regulated by, and vulnerable to lawsuits from, their own community or nonprofit environmental groups. It’s going to be a rude awakening for people who otherwise only answered to state or local oversight agencies.
The takeaway to all this? Be careful what you wish for – federal deregulation isn’t necessarily the breathing room it may appear to be. In fact, it may very well mean your seemingly benign development project, however big or small, can leave you vulnerable to more enforcement that you were before.