2020 Environmental Real Estate IssuesA California federal court determined that John Sweeney and his company, Point Buckler Club, LLC (PBC), committed “very serious violations” of the Clean Water Act (CWA) by constructing a levee in sensitive tidal channels and a marsh without a CWA permit.

Island in Greater San Francisco Bay
Mr. Sweeney purchased, and then transferred to PBC, Point Buckler Island, which is in the Suisun Marsh, part of the greater San Francisco Bay, in Solano County, California.  He dreamed of creating a kiteboarding resort on the Island.  However, most of what he bought constituted “waters of the United States,” because the Island “consisted almost entirely of tidal-water channels and marsh wetlands abutting tidal waters development.”

Liability Findings
The Court concluded the defendants violated the CWA due to the “unpermitted, non-exempt construction of a levee and other additions of pollutants” into “waters of the United States.”  As a result, “Point Buckler Island has ceased functioning as a tidal marsh ecosystem.”  If the harm is not mitigated “the Island’s native vegetation is likely to be lost permanently and the Island is likely to subside significantly.”

Court Rejected Affirmative Defenses
The defendants asserted the enforcement was an unconstitutional “taking,” a vindictive prosecution, and based on a statute that was unconstitutionally vague.  The Court rejected all these defenses.

Second Phase for Remedy
While both the government and the defendants submitted proposed remedies, the Court concluded neither were appropriate; rather, the Court will determine the remedy in a second phase of the proceeding.

For a link to the US Department of Justice’s announcement of the Court’s decision in US v Sweeney https://www.justice.gov/opa/pr/court-finds-individual-and-company-liable-violating-clean-water-act-when-filling-sensitive