On Aug. 29, the Biden Administration released a prepublication rule redefining what constitutes a "Water of the United States" (WOTUS) in the aftermath of the Supreme Court’s decision in Sackett v. EPA. In May 2023, the Supreme Court unanimously ruled that the “significant nexus” test used by the Army Corps and the EPA to establish jurisdiction over certain wetlands and other water features was inconsistent with the Clean Water Act.  

Under Sackett, WOTUS encompasses:

1. Traditional interstate navigable waters;
2. Relatively permanent, standing or continuously flowing bodies of water connected to traditional interstate navigable waters;
3. Wetlands that have a continuous surface connection with either (1) or (2).

Questions remain

While the Sackett decision was a big step in the right direction for golf course management, questions remain as to how the EPA and Corps will define and implement the “relatively permanent waters” standard mentioned in 2., above.  GCSAA is continuing to review this rulemaking as well as working with partners in the Waters Advocacy Coalition (WAC) to analyze its impact and will provide updates as they are known. 

WAC’s official statement

REVISED WOTUS RULE IGNORES SCOTUS RULING

Final WOTUS rule leaves America’s job creators, landowners, and state and local government in uncertainty. 

Washington, D.C. (August 29, 2023) – Waters Advocacy Coalition (WAC), composed of more than 40 organizations that represent a broad cross-section of small businesses, farmers, energy producers and job creators, released the following statement expressing serious concerns about the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers’ final Waters of the U.S. (WOTUS) rule: 

“We have consistently reminded the federal agencies that there are clear limits to their jurisdictional reach, which they have chosen to ignore despite the Supreme Court’s direction in Sackett v EPA,” said Courtney Briggs, Waters Advocacy Coalition chair. “This revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act. Even worse, the agencies blocked public input and engagement in the revision process. This is unfortunate as clean water is a public health and economic priority for our nation’s businesses, their employees, customers and the communities in which they operate.

“The administration is proving again that it does not understand that categorizing land or water features as non-federal waters does not mean that they are unprotected and that it intends to broaden the scope of the federal government’s power – even if it defies the law.”