Since the EPA’s announcement of new guidance and potential WOTUS rulemaking on March 12, more information has been released as to where the EPA and the Army Corps of Engineers will focus its efforts and seek public comment.
The EPA issued a Request for Comment on key aspects of the WOTUS that remain at issue since the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency. It has also issued a guidance to help determine whether a wetland adjacent to a WOTUS is close enough to also be considered one.
The final decisions will have impact golf course management.
What is at issue
There are three issues that remain outstanding since the Sackett decision:
- How do you define a "relatively permanent water"?
- How do you define a "continuous surface connection" when deciding whether a wetland is a WOTUS?
- How do you define a ditch?
As previously noted, Sackett has helped provide clarity on each of these three issues. For example, to be considered a WOTUS, a wetland must now be "indistinguishable" from a river, stream or lake due to its "continuous surface connection." But even defining continuous surface connection has been a question. In 2023 the Biden Administration said that a continuous surface connection could include "discrete features" like a non-jurisdictional ditch, swale, pipe or culvert. That indicates that an underground pipe could potentially be enough of a connection to implicate the permitting requirements under the Clean Water Act.
The guidance makes clear that this is no longer the case. But it is not binding, so, a new rule is needed. The EPA and Corps are looking for input on all the outstanding issues defined above. The deadline is April 23, and GCSAA will be filing comment. In addition, there will be at least six listening sessions in late March to April with the chance to make remarks. GCSAA will comment there as well.
A scalpel, not a sledgehammer
The Sackett decision has provided boundaries and clarity for a durable definition of WOTUS. As the EPA considers a new rulemaking, GCSAA will work with its allies to make the additional changes needed to protect golf course management.