Since Inauguration Day, the Biden Administration has made it clear that it wants to repeal and replace the 2020 Navigable Waters Protection Rule (WOTUS). This was expected to be a two-step process, with the first step being repeal of the NWPR and the second being a replacement rule. What the EPA chose to do instead for the first step is something akin to “repeal…plus”. It issued a rule the week before Thanksgiving that repeals NWPR and resets federal jurisdiction of water to those regulations issued prior. But it also expands that jurisdiction to incorporate Supreme Court opinions, including Justice Kennedy’s opinion in the Rapanos case. If that sounds ominous, it should. The Kennedy opinion, which is not law because it was not adopted by a court majority, includes language that would broaden federal jurisdiction to water features that had a “significant nexus” to navigable waters.  The Obama Administration used this language to craft the 2015 Clean Water Rule and the resulting uncertainty threatened golf operations across the country, until that rule was repealed in 2019.

Since the beginning, GCSAA has argued in comments to three administrations and countless members of Congress that golf requires clarity when operating on, over or near potential waters of federal jurisdiction. Unfortunately, it will not come with this rule. The rule would repeal the NWPR and take regulations back to the last prior rule in effect, issued more than 30 years ago. The rule included traditional navigable waters, interstate waters, territorial seas and their tributaries and adjacent wetlands. The latter two categories are particularly troublesome. Does a tributary include ephemeral waters i.e., land that is only sometimes wet? Do adjacent wetlands include wetlands with no surface connection to a navigable water and therefore no clear way to determine their coverage under federal law? This can impact whether a superintendent is able to apply pesticide or move dirt. And it launched several subsequent rules and guidance as well as quite a few lawsuits.

The EPA offers two standards to determine these waters, borrowed from Rapanos and other court cases: the relatively permanent standard and the significant nexus standard. According to the rule’s preamble, the relatively permanent standard “means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters”. This provides some clarity however the other standard is much more troublesome. The significant nexus standard “means waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas”. The “significant nexus” is seen within Justice Kennedy’s decision and the Clean Water Rule. It is as unclear now as it was then.

So, the EPA has decided to move forward with a rule that not only takes the industry back to uncertainty but creates even more of it. Expect GCSAA to vigorously lobby federal decision-makers to let them know how this would impact golf. GCSAA will work directly with them and leverage our efforts by working with coalition partners. The 60-day clock on the rule starts as soon as it is published in the Federal Register.

There will be more to come.;