By Ronnie Miles, NGCOA Director of Advocacy
On June 10, 2021, we posted an Accelerate update that the Biden administration had filed papers remanding the 2020 WOTUS Rule. As we noted, this was the first step in the administration’s plans to rescind and replace the rule.
On December 7, 2021, the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers (ACE) released their revised definition of Waters of the United States. They seek to put in place a definition that closely resembles the Obama Rule of 2015, which the United States Supreme Court voided due to its overreach. The 2020 Navigable Waters Protection Rule (NWPR) limited the definition of tributaries, adjacent wetlands, and ditches under federal jurisdiction. In our comments to the original rule, the golf industry stated golf requires a clear and consistent regulatory environment and wants to maintain cooperative federalism.
Unfortunately, the Agency’s actions go further than just repealing the 2020 Navigable Water Protection Rule (NWPR). They are attempting to define WOTUS. Generally, this step is the purpose of the final rule-making process. The proposed rule will include many features on a golf course by creating an overbroad definition of “other waters.” They also introduced two standards for determination: the “relatively permanent standard” and the “significant nexus standard,” which was previously dismissed by the majority of the Supreme Court as part of their Rapanos v. United States decision that ruled the 2015 WOTUS Rule was an overreach and suspended the Rule’s release. Their proposed rule reverts to vague definitions of tributaries and wetlands, making golf courses susceptible to project delays and increased costs.
Another case is before the Supreme Court, Sackett v Environmental Protection Agency, which may significantly influence a new NWPR. Shouldn’t the EPA delay issuing any rule changes until this case is resolved? On February 3, 2022, a letter signed by all Senate Republicans was sent to the EPA and Department of the Army, calling for the suspension of their rule-making process until this case is resolved. In their letter, they stated, “It would be irresponsible for EPA and USACE to proceed down a regulatory path that could be invalidated or significantly altered as early as this summer.” Their letter failed to deter the agencies, so their rule-making process continues.
The public was allowed to submit comments on the proposed rule through February 7, 2022. NGCOA and allied members of the American Golf Industry Coalition (formerly We Are Golf Coalition) submitted our industry comments. While supporting the need for a clear and consistent definition of WOTUS and the proper implementation of the Clean Water Act, we do not support the Agencies’ attempt to short-cut the rulemaking process.
NGCOA will continue working with our allied associations to ensure the golf industry’s voice is heard.
To learn more, please contact Ronnie Miles at email@example.com.