President Donald Trump issued an executive order Feb. 28 directing the EPA and the Army Corps of Engineers (Corps): to "review" the Clean Water Rule, and "publish for notice and comment" a rule that either revises the pending Clean Water Rule (WOTUS) or replaces it entirely. Placed on hold nationwide since October 2015 by the 6th Circuit Court of Appeals, the Clean Water Rule expanded the Clean Water Act’s federal jurisdiction to include waters previously under state or local control, such as isolated ponds, wetlands, ditches and ephemeral drainages (i.e. those with only an intermittent flow).
Beyond this, the executive order lays out a number of principles for the agency review of the Clean Water Rule. The EPA, Corps -- as well as any other agencies or executive department involved -- must follow the statement of policy laid out in Section 1, i.e. keep navigable waters pollution free while promoting economic growth, avoiding regulatory uncertainty and respecting states’ rights. Further, it narrows the scope of navigable waters in any future rulemaking to those waters Justice Antonin Scalia referenced in his 2006 opinion in the Supreme Court case of Rapanos v. United States. Scalia had argued that the Clean Water Act should only cover those waters with a permanent flow or with a surface water connection to waters with a permanent flow. Finally, the attorney general is instructed to inform any courts where litigation is ongoing of this review and "take such measures as he deems appropriate." This could likely include asking courts to suspend all litigation until a final rulemaking is complete.
GCSAA opposes the Clean Water Rule as written. Under the rule, golf courses could likely be required to obtain costly federal permits for any land management activities or land use decisions in, over or near these waters, such as pesticide and fertilizer applications and stream bank restorations and the moving of dirt. The impact on golf course management could be dramatic.
With the Clean Water Rule tied up in court, the executive order outlines a path forward for its eventual repeal and replacement. It does not change the process or timing required to do so. But it does indicate the importance of this issue to the administration. GCSAA will continue to monitor and review developments on this rule and their impact on golf course management.
Bob Helland, director of congressional and federal affairs