Update: The Biden Administration's WOTUS rule was published in the Federal Register on January 18, 2023 and the rule will go into effect on March 20, 2023.
*****************************************************************************
On Dec. 30, 2022), the EPA and Army Corps of Engineers (Corps) released the final “Waters of the United States” (WOTUS) Rule. Unfortunately, this represents another missed opportunity to provide a clear definition of those waters under federal jurisdiction and thus subject to federal water permitting requirements.
Since the repeal of the Navigable Waters Protection Rule earlier this year, golf course management has been operating under a cloud of uncertainty when it comes to operations that are on, over or near potential waters of federal jurisdiction. GCSAA has discussed this in direct meetings with the EPA and Corps, both individually and as part of the Waters Advocacy Coalition (WAC), as well as in comments filed on behalf of the entire golf industry. The rule today does not resolve this uncertainty.
One of the greatest concerns with the rule is the return to the significant nexus standard, when deciding whether tributaries, wetlands, and other waters are under federal jurisdiction. We saw “significant nexus” within Justice Kennedy’s opinion in the Rapanos case, which is not law, as well as the 2015 Clean Water Rule. It is as unclear now as it was then. This is of importance to the water features on golf courses and could have a damaging effect on golf operations, if allowed to stand.
And it may not be allowed to stand: the Supreme Court is currently deciding a case – Sackett v. EPA – that could potentially overturn this rule. GCSAA has argued that the EPA and Corps should wait until the Sackett decision before publishing this rule, i.e. “no WOTUS before SCOTUS.”
GCSAA has been a longstanding member of the Waters Advocacy Coalition (WAC), representing agriculture, energy, infrastructure and other industries committed to a clear, efficient definition of WOTUS. WAC has released a statement, expressing its disappointment with the rule. GCSAA joins these concerns.
Golf course superintendents are stewards of the environment who follow baseline environmental compliance and additionally utilize agronomic and environmental best management practices (BMPs) to provide healthy greenspaces and wildlife habitats that benefit everyone.
GCSAA’s Government Affairs team will continue to review the final rule and provide more information to GCSAA members in the New Year. For questions, reach out to Bob Helland, GCSAA Director of Congressional & Federal Affairs, at rhelland@gcsaa.org.