The EPA and the Army Corps of Engineers released their joint proposal on June 27 to rescind the 2015 Clean Water Rule (i.e., “WOTUS rule”). Following the repeal of the rule, a replacement will be promulgated. GCSAA applauds this first step in the WOTUS rule repeal and replace effort and looks forward to working with EPA and Corps officials to help redefine what a “water of the United States” is under the Clean Water Act to help provide regulatory certainty to golf facilities.  

In February, President Trump signed an executive order that requires the new rule to follow the late Justice Antonin Scalia's opinion in the Supreme Court's Rapanos decision. A blog post from Bob Helland, GCSAA's director of congressional and federal affairs,provides more information on the President's executive order.

Helland recently met with representatives of the Office of Management and Budget and other administration officials to make sure golf's voice has been heard during the rulemaking process.

Below is a copy of the June 27 announcement by EPA:

EPA, U.S. Army Move to Rescind 2015 "Waters of the U.S."

The Environmental Protection Agency, Department of Army, and Army Corps of Engineers (the agencies) are proposing a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" or WOTUS. This action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of "waters of the United States." The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice.

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," said Administrator Scott Pruitt. "This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

This proposed rule follows the February 28, 2017, Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." The February Order states that it is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution. To meet these objectives, the agencies intend to follow an expeditious, two-step process that will provide certainty across the country.

The proposed rule would recodify the identical regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of the U.S. Court of Appeals for the Sixth Circuit's stay of the 2015 rule. Therefore, this action, when final, will not change current practice with respect to how the definition applies.

The agencies have also begun deliberations and outreach on the second step rulemaking involving a re-evaluation and revision of the definition of "waters of the United States" in accordance with the Executive Order.

"The Army, together with the Corps of Engineers, is committed to working closely with and supporting the EPA on these rulemakings.  As we go through the rulemaking process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public, " said Mr. Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works.