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Check in regularly as GCSAA's government affairs department keeps you informed about important compliance deadlines that impact golf facilities. Hot topics – some that fall within the 2019 Priority Issues Agenda are critical to golf facilities.

Decision Muddies Waters On WOTUS

by Government Affairs Team | Jan 29, 2018

In a unanimous decision this week, the Supreme Court held that lawsuits challenging the legality of WOTUS must be filed at the district court level, not at the circuit court level. While this was purely a jurisdictional case and not a decision on the merits of WOTUS, it does have the potential to alter WOTUS’s impact on golf course facilities – if only for a short time. 

Normally, a lawsuit challenging a federal regulation would be brought before a federal district court. The Clean Water Act, however, contains statutory language that bypasses the district court for certain regulations and let the lawsuit begin at the next (higher) level, the court of appeals. When WOTUS was finalized, there was a question as to which court had jurisdiction, resulting in multiple lawsuits filed at both the district and circuit court levels. Much of the litigation challenging WOTUS was consolidated before the 6th Circuit Court of Appeals. However, the Supreme Court rejected this. It held in the case of National Association of Manufacturers v. Department of Defense that WOTUS lawsuits must be filed in federal district courts, instead of courts of appeal.

The 6th Circuit was responsible for the nationwide stay of WOTUS that is currently in place. Because it no longer has jurisdiction over WOTUS, that stay will go away. This has the potential for confusion and even possibly the brief reinstatement of WOTUS.  Before anyone panics, please note:

  1. The Trump Administration is moving forward on a rule delaying the start date of WOTUS by two years.  When final, this rule would ensure that WOTUS would not go into effect during the time to develop a replacement rule.
  2. There are a number of pending lawsuits at the district court level that could still result in a nationwide stay.  Further, as a result of lawsuits filed, WOTUS has been stayed in 13 states and this will continue after the nationwide stay is lifted.  Those states are:
    • Alaska
    • Arizona
    • Arkansas
    • Colorado
    • Idaho
    • Missouri
    • Montana
    • Nebraska
    • New Mexico
    • Nevada
    • North Dakota
    • South Dakota
    • Wyoming
  3. Work continues on a replacement rule within the Trump Administration and Congress is considering measures to help fast track this process.

While there is uncertainty, the fundamentals on WOTUS have not changed despite the Court’s decision this week. GCSAA will continue to monitor developments and provide updates as more is known.