Supreme Court Decision is Good for California Water and for the Environment by Santa Margarita Water District Oct 4, 2023 Member Submitted News The U.S. EPA recently reported that changes to its “Waters of the United States” rule (otherwise known as WOTUS) that regulates “navigable waters” under the Clean Water Act became final September 8, 2023. Those changes are based on the recent Sackett v U.S. EPA decision at the Supreme Court. The decision provides “clarity for protecting our nation’s waters consistent with the Supreme Court’s decision while advancing infrastructure projects, economic opportunities, and agricultural activities.” The Biden Administration expressed disappointment with the court ruling, but they recognized their obligation to change the rules. By way of background, the Sackett family purchased property near Priest Lake, Idaho in 2004 and began backfilling the lot with dirt to prepare for building a home. The EPA informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits discharging pollutants into the “Waters of the United States.” The EPA ordered the Sacketts to restore the site or pay penalties of over $40,000 per day. The EPA classified the wetlands on the Sacketts’ lot as “Waters of the US” because they were near a ditch that fed into a creek which fed into Priest Lake. It took almost 20 years for the Sackett’s to prevail. Not surprisingly, the Supreme Court’s decision has been reported as a victory for property rights on the one hand and, on the other hand, an undesirable ‘rolling back’ of environmental protections. There is, however, widespread agreement in the California water sector that the Supreme Court’s decision is a more balanced step in the right direction. It protects property rights and local authority by keeping federal permitting authority within reasonable bounds while allowing state and local authorities to decide what is best concerning projects and environmental protection in their areas. In fact, in anticipation of the changes under the federal law, the California State Water Resources Control Board issued a policy that says waters that were previously covered under “Waters of the United States” are now covered as “Waters of the State.” This means that a permit from a Regional Water Quality Control Board is now required for discharges into “Waters of the State”, or to locations that are likely to discharge into “Waters of the State.” The good news is that California’s laws and regulations governing discharges, while stringent, tend to be more flexible and give state regulators a greater ability to tailor requirements to circumstances on the the ground than they would have been the case under federal law. Perhaps as importantly, permits issued under California’s water quality laws are not subject to litigation challenge by, for example, environmental groups. And there is no requirement for consultation with other agencies as previously required under the federal law. This kind of flexibility and more local control is precisely what California’s water providers need. It reduces regulatory red tape, reduces extraneous litigation costs, and allows agencies to focus their time and resources on the things that matter to California’s water customers. Santa Margarita Water District, through its general counsel, Best Best & Krieger, was one of several agencies that submitted a “friend of the court” brief in support of the Sacketts’ position.
