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November 2021

Troubled Waters Continue to Flow

By Ronnie Miles

The Clean Water Act became law in 1948. In 1972 an amendment to the Clean Water Act established federal jurisdiction over “navigable waters,” defined as the “waters of the United States,” commonly referred to as the WOTUS Rule. The Clean Water Act provided the EPA and the U.S. Department of the Army Corps of Engineers (Corps) discretion to define “waters of the United States” in regulations.
 
In the mid-1980s, EPA wrote new rules intended to provide more objectivity to the decision-making process. But unfortunately, their “rule” ran afoul of the courts and a constant battle between environmentalists and industry ensued. While the rule was updated in 2015, the US Supreme Court ruled it to be an overreach by the government and was subsequently rescinded and a new rule was released in 2020.
 
Following the election of a new administration, on June 9, 2021, the EPA and Corps announced their intent to initiate a new rulemaking process that restores the protections in place before the 2015 WOTUS implementation and develops a new rule to establish a durable definition of “waters of the United States.”
 
As many had anticipated, the EPA challenged the 2020 Navigable Waters Protection Rule (NWPR)  in the U.S. District Court for the District of Arizona. On August 30, the court vacated the 2020 rule which redefined "waters of the United States" for Clean Water Act jurisdiction purposes, effectively reinstating the definition in effect before 2015.
 
Under that last definition, many ephemeral streams and isolated wetlands that were not subject to federal jurisdiction under the NWPR again will be subject to case-by-case determinations of their status. The District Court of Arizona covers Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam and Hawaii. It remains unclear if this decision is applied across the US.
 
For the moment, this appears to leave the pre-2015 rule in place, at least where the order is given effect. Under the pre-2015 rule, ephemeral streams and many wetlands require a fact-specific "significant nexus" analysis by the EPA and Corps to determine whether they are waters of the United States.
 
The NGCOA and our allied members of the We Are Golf coalition have been following the actions of the EPA and the Corps. On August 23rd, the Golf Course Superintendents Association of America was asked to testify before the EPA and Corps. Bob Helland, GCSAA, presented the industry’s opposition to their proposal to rescind the current Navigable Waters Protection Rule. He stated during his testimony, “ If the EPA and Corps do move forward with a repeal, GCSAA urges that any new rule reject a “one-size-fits-all policy”, gives proper weight to Clean Water Act (CWA) § 101(b) of the policy of preserving states’ primary responsibilities over water pollution control and over land and water use, recognizes that the CWA does not confer federal jurisdiction over all water features, and respects the important role that non-federal participants such as superintendents play.”
 
NGCOA supports creating a common-sense rule that clarifies jurisdictional waters while respecting the balance of cooperative federalism under the CWA. We anticipate the EPA will begin this process soon. The first step will be to solicit public and industry comments for consideration of their new rule. Until then, we can expect general confusion and many lawsuits.
 
Will any rule satisfy both parties? Probably not. So, it appears we are returning to a primarily subjective permitting process, and we encourage golf course owners who are planning renovations or new construction projects to plan ahead and work closely with their state agencies for permitting guidance.

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