The Shifting Landscape of Water Regulation

A recent Supreme Court decision has triggered a wave of concern over water quality protection. The ruling in Sackett v. EPA (2023) significantly curtailed the reach of the federal clean Water Act (CWA). This decision redefined waters of the United States to include only relatively permanent, standing, or continuously flowing water bodies forming geological features ordinarily described as streams, oceans, rivers, and lakes.

The implications for California are ample, potentially stripping federal protection from many of the state’s streams and wetlands.

California’s Legislative Response: Senate Bill 601

In response to the Sackett decision, california lawmakers introduced Senate Bill 601 (SB 601), also known as the Right of Clean Water Act. This bill seeks to preserve the water quality protections that existed before the Supreme Court ruling. SB 601 amends the Porter Cologne Water Quality Control Act,restructuring the state’s regulatory framework to ensure California continues to regulate streams and wetlands that lost federal protection.

California asserts its right to regulate water quality within its borders as a matter of state law.

Key Provisions of SB 601: A Closer Look

SB 601 introduces several critical changes to California’s water quality regulations:

• Nexus Waters: The bill establishes a new category of state waters called nexus waters within the Porter Cologne Act. These are broadly defined as all navigable waters of the state, with specific exceptions. The intent is to restore and retain protections afforded to certain waters of the state prior to May 25, 2023.
• Federal Discharge Requirements: SB 601 applies federal discharge requirements, including National Pollutant Discharge Elimination System (NPDES) permits, to nexus waters. This aims to prevent entities from seeking less stringent state Waste Discharge Requirement (WDR) permits to avoid federal oversight. The State Water Board and Regional Water Boards would need to include nexus waters in all processes pursuant to the federal CWA.
• Continuity of Standards: To maintain consistency, SB 601 ensures that any water quality standard applicable to nexus waters that was submitted to, approved by, or awaiting approval by the U.S. EPA or State Water Board prior to January 19, 2025, remains in effect unless a more stringent standard is adopted.The State Water Board must also adopt a primary drinking water standard at least as stringent as the national standard in effect on January 19,2025.
• Enhanced Compliance and enforcement: SB 601 mandates that regulated industries demonstrate enrollment with the NPDES or WDR permit programs when applying for business licenses or permits.It also expands the enforcement authority of the State Water Boards and Regional Water Boards and allows for citizen suits for unlawful discharges into nexus waters. Violations could result in civil penalties of up to $15,000 per day, with administrative penalties up to $5,000 per day, subject to inflationary adjustments.the bill also allows for citizen suits – an enforcement action brought in superior court by a person in the public’s interest.

The Broader implications

SB 601 signifies California’s commitment to safeguarding its water resources in the face of federal regulatory changes. For the water industry, this could mean stricter regulations, increased enforcement, and the potential for citizen litigation. Staying informed and prepared is essential for ensuring compliance and protecting California’s water quality.