WOTUS

The Trump Administration repealed the 2015 Clean Water Rule on December 23rd, 2019, clearing the way for a new definition of WOTUS. On Jan. 23, 2020, the EPA and the Army Corps released the Navigable Waters Protection Rule. The new rule significantly improves upon the regulatory clarity of WOTUS by simplifying the definition of WOTUS. Key changes include:

  • Limiting tributaries to surface water conveyances that contribute perennial or intermittent flow during the year.
  • Limiting adjacent waters to those wetlands that either touch or have a hydrological connection to a water covered by the CWA.
  • Limiting ditches to those that 1. fall into the category of traditional navigable waters; 2. are constructed in tributaries or relocate or alter tributaries; or 3. are constructed in adjacent wetland and meet the tributary definition.

GCSAA does not provide legal advice and in some cases limits technical advice such as actual jurisdictional determinations of WOTUS.

The Navigable Waters Protection Rule goes into effect on June 22, 2020. GCSAA has plans to host a Navigable Waters Protection Rule compliance webinar. GCSAA does not have all the answers as to how the rule will be implemented, and the agencies are in the process of producing guidance documents on implementation. Below are some general guidelines provided for compliance assistance.

  1. Read this short briefing from the EPA on the new WOTUS rule and their plans for future implementation. The EPA has also produced two webcasts to help you better understand the Navigable Water Protection Rule.
  2. Determine your jurisdictional waters as best you can. Conduct an assessment of your water features, flood plains, wetland and operational/proposed activities that may impact WOTUS. Assess your golf course for water features that connect to other offsite waters of downstream waters. Options:
    • Get a better understanding of the watershed your course is situated in.
    • Walk the golf course.
    • Use Google maps, aerial photographs, USGS official topographic maps, soil maps to help with your assessment. On the USGS official topographic maps "blue line" streams strongly indicate perennial or intermittent jurisdictional streams. Do the ponds/wetlands have connections (inlets, outlets)?
    • EPA has provided some information on rule exclusions.
    • EPA has provided initial guidance on implementing the Navigable Waters Protection Rule.
  3. If things are unclear, seek help from a local environmental consultant to work with you on any jurisdictional determinations, environmental assessments, stream impacts and flood plain impacts. You can do this before talking to the EPA or Corps directly. Find a qualified environmental consultant that may be associated with an engineering firm for plan approvals. Ensure they have experience with threatened/endangered species, stream restoration, and regional COE stream assessments.
  4. Seek an official jurisdictional determination if necessary and inquire about any associated permits. Determine whether permits (nationwide, individual, or general) are required for discharges of "fill" or other "pollutants".

Permits to consider will include:

  1. Army Corps of Engineers 404/individual permits (regulates the discharge of dredged or fill material into WOTUS)
  2. 402 NPDES permits for pesticide applications (point source discharges of biological pesticides, and chemical pesticides that leave a residue into a WOTUS)
  3. FEMA floodplain management permits (generally administered through your state)
  4. Any state stream/water quality/flood plain permit

Fill and dredge permits:

  • The Army Corps of Engineers and EPA administer the 404 fill and dredge permit program. The Corps administers the day-to-day program, including individual and general permit decisions. They conduct and verify jurisdictional determinations. States also have a role in Section 404 decisions, through state program general permits, water quality certification, or program assumption.
  • Learn more about the 404 permitting process.
  • Find your local 404 permitting contact.

402 NPDES permits:

  • EPA has oversight over the 402 NPDES permitting program. A 402 permit may be needed for spraying activities in, over or near WOTUS. The agency that issues an NPDES permit for discharges from pesticide applications depends on the location of those applications. In most cases, the state environmental protection regulatory agency (e.g., the Department of Environmental Quality or Department of Natural Resources) is the NPDES permitting authority and issues the NPDES permits for activities in their state. The EPA only issues NPDES permits in areas where and activities for which the states are not authorized to issue NPDES permits. The EPA is the NPDES permitting authority for pesticide discharges in ID, MA, NH, NM, AK, and OK. All other states have NPDES program authority.
  • Learn more about the NPDES pesticide program.
  • Find NPDES contacts.
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