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Buyers Guide Accelerate

Waters of the United States Rule Update

In 2011, the Environmental Protection Agency along with the Army Corp of Engineers published a new rule which was intended to help local agencies by providing better clarity on enforcement of the Clean Water Act. Instead of clarifying the Act, they decided to expand the areas of enforcement. Under the new rule regulators can now declare a previously undeclared wetlands as wetlands as they may have an effect on major water tributaries downstream. Many states proceeded to file suit in courts across the country and as a result the implementation of the rule was postponed. In congress, both the House and the Senate introduced legislation that would remove this rule from the Clean Water Act.

This new regulatory definition has greatly expanded the EPA’s authority over privately-held property and waters historically falling within the jurisdiction of the states. Therefore, the expanded WOTUS definition is anticipated to impact the development of almost any property or right-of-way to the extent that water is present in the vicinity. This new rule will also inevitably create project delays to ascertain whether waters are in fact a WOTUS, and whether additional approvals or permits are necessary as part of the project development.

President Trump took a first step to address the WOTUS Rule by issuing an executive order directing the Environmental Protection Agency (EPA) to review and either rescind or revise the law.

The order directs the administrator of the EPA and the secretary of the Army for Civil Works to review the rule and consider interpreting the term “navigable waters” in a manner “consistent with Justice Scalia’s opinion.”

Following the executive order, EPA Administrator Scott Pruitt issued a notice of intent to rescind or revise WOTUS Rule. The EPA and Corps plan to propose a new definition that would replace the WOTUS Rule as directed by the executive order. On March 6, they published their notice in the Federal Register, and on May 2 sent a proposal to repeal the WOTUS Rule to the White House Office of Information and Regulatory Affairs. This will now allow release for public comments. According to an article published by Anna Skinner with Dinsmore, the EPA met with state and local officials in D.C. to outline plans for placing the WOTUS Rule. During this meeting, they presented a slideshow that presented three different approaches to defining “relatively permanent” waters:

  • Only include perennial streams or streams that carry flow throughout the year except in extreme drought;

  • Include perennial streams with “seasonal flow”; or

  • Include perennial streams with another measure of flow with appropriate, implementable metrics.

The EPA also presented three different approaches for how to define wetlands with a “continuous surface connection”:

  • Only include wetlands that directly touch “jurisdictional waters”;

  • Include wetlands with “some degree of connectivity” to a jurisdictional water, but limit how far the wetland could be from the water to be protected;” or

  • Include wetlands that have a continuous surface connection to jurisdictional waters even if they are separated by a “non-jurisdictional feature.”

Reaching a final decision on this issue is expected to extend well into next year or longer. It is still unknown if the EPA’s action will have any bearing on the actions by the Supreme Court. Should they rule the Sixth Circuit was correct in ruling they had jurisdiction of this case, then we can expect the administration’s plan to proceed.

The NGCOA supports the actions by the Administration’s and EPA, and will continue to monitor as this rule is rewritten.

This issue is supported by the WE ARE GOLF Coalition. Founded by the National Golf Course Owners Association, Club Managers Association of America, Golf Course Superintendents Association of America, and The PGA of America, WE ARE GOLF is a broad-based coalition aimed at maximizing the industry's synergy and reducing redundancy. Its growing membership includes participation from association members, multi-course owners, manufacturers and golf facilities. First and foremost, the goal of WE ARE GOLF is to get members of Congress to understand golf's contributions to communities across the country when they're developing and advancing important legislation - just as all small businesses want.

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