The EPA and U.S. Army Corps of Engineers are redefining the definition of "Waters of the United States" (WOTUS) within the Clean Water Act and this change will impact all CWA programs. GCSAA members need to pay attention to this important change, which will impact golf course design, construction and management. They are changing what surface waters come under federal regulation vs. state regulation. This could mean more permits and increased costs or delays. In addition, courses could be subject to citizen action lawsuits.

The EPA and Army Corps jointly released a final rule to clarify protection under the CWA for streams and wetlands that form the foundation of the nation’s water resources on June 29, 2015. The WOTUs rule was supposed to be effective Aug. 8, 2015. However, the 6th Circuit Cout of Appeals put the rule on hold nationwide on Oct. 9, 2015. It is likely that the case will be resolved in 2016.

GCSAA does not provide legal advice and in some cases limits technical advice such as actual jurisdictional determinations of WOTUS.

The WOTUS rule is technical and does not provide the bright lines needed for ease of compliance. Recent conversations on Capitol Hill have revealed the two agencies are not on the same page about the rule. GCSAA does not have all the answers as to how the rule will be implemented and the agencies have not provided guidance on implementation yet. Below are some general guidelines provided for compliance assistance.

  1. Watch the webcast "The Final 'Waters of the United States' Rule: Implications and Implementation" presented by Waters Advocacy Coalition attorney Deidre Duncan.
  2. Determine if you jurisdictional waters as best you can. Conduct an assessment of your water features, flood plains, wetland and operational/proposed activities that may impact WOTUS. Assess your golf course for water features that connect to other offsite waters of downstream waters. Options:
    • Get a better understanding of the watershed your course is situated in.
    • Walk the golf course.
    • Use Google maps, aeriel photographs, USGS official topographic maps, soil maps to help with your assessment. On the USGS official topographic maps "blue line" streams strongly indicate perennial or intermittent jurisdictional streams. Do the ponds/wetlands have connections (inlets, outlets)?
    • Are you in a floodplain? What is the distance of your ponds/wetlands from other WOTUS in the floodplain? Use the Flood Risk Information System (FRIS) maps for classified flood plain classified area.
    • Rule exclusions -- Assess whether your water features were created in "dry land". Look at the existing floodplain maps. Were your water features developed in prior wetland areas? Review NRCS soil maps.
  3. If things are unclear, seek help from a local environmental consultant to work with you on any jurisdictional determinations, environmental assessments, stream impacts and flood plain impacts. You can do this before talking to the EPA and/or Corps directly. Find a qualified environmental consultant that may be associated with an engineering firm for plan approvals. Ensure they have experience with threatened/endangered species, stream restoration, and regional COE stream assessments.
  4. Seek an official jurisdictional determination if necessary and inquire about any associated permits. Determine whether permits (nationwide, individual, or general) are required for discharges of "fill" or other "pollutants".

Permits to consider will include:

  1. Army Corps of Engineers 404/individual permits (regulates the discharge of dredged or fill material into WOTUS)
  2. 402 NPDES permits for pesticide applications (point source discharges of biological pesticides, and chemical pesticides that leave a residue into a WOTUS)
  3. FEMA floodplain management permits (generally administered through your state)
  4. Any state stream/water quality/flood plain permit

Fill and dredge permits:

  • The Army Corps of Engineers and EPA administer the 404 fill and dredge permit program. The Corps administers the day-to-day program, including individual and general permit decisions. They conduct and verify jurisdictional determinations. States also have a role in Section 404 decisions, through state program general permits, water quality certification, or program assumption.
  • Learn more about the 404 permitting process.
  • Find your local 404 permitting contact.

402 NPDES permits:

  • EPA has oversight over the 402 NPDES permitting program. A 402 permit may be needed for spraying activities in, over or near WOTUS. The agency that issues an NPDES permit for discharges from pesticide applications depends on the location of those applications. In most cases, the state environmental protection regulatory agency (e.g., the Department of Environmental Quality or Department of Natural Resources) is the NPDES permitting authority and issues the NPDES permits for activities in their state. The EPA only issues NPDES permits in areas where and activities for which the states are not authorized to issue NPDES permits. The EPA is the NPDES permitting authority for pesticide discharges in ID, MA, NH, NM, AK, and OK. All other states have NPDES program authority.
  • Learn more about the NPDES pesticide program.
  • Find NPDES contacts.