The California legislature continues to advance Senate Bill 601 (SB 601), the “Right to Clean Water Act,”[1] which aims to safeguard protections for California’s streams and wetlands that lost federal protection under the Clean Water Act (CWA) as a result of the Supreme Court’s 2023 Sackett v. U.S. EPA decision. If approved, SB 601 would expand enforcement to include citizen suits and increase penalties for unpermitted discharges to state waters.
Under the CWA, the U.S. Environmental Protection Agency and Army Corps of Engineers regulate the discharge of dredged and fill materials to “Waters of the United States” (WOTUS), including their “adjacent” wetlands. In 2023, the Supreme Court limited the definition of “adjacent” wetlands regulated by the CWA to only those wetlands that have a “continuous surface water connection” to “relatively permanent” water bodies such as oceans, lakes, rivers, and streams that are themselves WOTUS. Following Sackett, questions remain about which waters may be regulated by the CWA, and while the Biden administration revised the regulatory boundaries of WOTUS to conform with Sackett while keeping as many waters within federal jurisdiction as possible, the new administration may try to further limit which waters are subject CWA protection.
Under state law, the Porter-Cologne Water Quality Control Act (Porter-Cologne), California regulates “waters of the state,” which are more expansive than WOTUS and include all surface waters and groundwater within the state’s borders. However, enforcement under Porter Cologne is less robust than under the CWA — e.g., penalties and fines are smaller and there is no citizen enforcement. Protections for WOTUS, therefore, are stronger than for waters of the state.
To “recapture” the CWA jurisdictional waters eliminated by Sackett, SB 601 creates a new category of state waters — “nexus waters.” Nexus waters generally encompass the category of waters that Sackett removed from CWA jurisdiction, i.e., wetlands and other waters that were not physically connected to, but had a “chemical, physical, or biological” connection to a WOTUS. SB 601 would provide nexus waters with similar protections under Porter-Cologne as the CWA provided for WOTUS pre-Sackett, and add citizen enforcement. This would ensure the state can continue to regulate wetlands that lost protection under the CWA. In addition, the bill would preserve federal standards that were in effect on January 19, 2025, (the last day of Biden’s term).
The bill continued advancing after Senator Ben Allen agreed to amendments proposed by the Senate Environmental Quality Committee that, among other things, clarify the bill’s discharge limitations apply only to point sources, not to nonpoint sources such as agricultural runoff. Some groups remain concerned, however, with the bill’s citizen suit provisions. The California Chamber of Commerce noted that citizen enforcement could lead to “frivolous and predatory lawsuits.” The Judiciary Committee will hold a hearing on SB 601 on April 29.
[1] SB-601 was introduced by Senator Ben Allen on February 21, 2025, and co-authored by Senate Majority Leader Gonzalez and the California Coastkeeper Alliance.
