Jun 22, 2020

The Navigable Water Protection Rule’s new definition of “Waters of the United States” (WOTUS) is now in effect in 49 states.

The Navigable Waters Protection Rule’s new definition of “Waters of the United States” (WOTUS) is now in effect in 49 states. In all states besides Colorado, the new definition of "Waters of the United States" limits the scope of federal reach on wetlands, streams and ditches. Colorado’s exclusion is due to a district order, issued June 19, which granted a stay of the Navigable Waters Protection Rule in the state. GCSAA will continue to monitor the state of the rule as litigation continues.

GCSAA has consistently opposed the 2015 Clean Water Rule and its sweeping scope over rivers, streams, wetlands and ditches, which resulted in expensive and unpredictable permitting processes for golf courses across the country. GCSAA has led the industry’s response to this rule through coalition work, grassroots advocacy efforts, and filing comments with the EPA.

The long-awaited repeal of the 2015 Clean Water Rule came in the fall of 2019, which was the first step in a two-part repeal and replace effort by the current Administration. EPA Administrator Andrew Wheeler acknowledged GCSAA’s support in his remarks and thanked the association for its efforts during a Sept. 12, 2019, press conference where he and Army for Civil Works Assistant Secretary R.D. James signed the repeal rule.

On Jan. 23, 2020, the EPA and Army Corps of Engineers released the final 2020 Navigable Waters Protection Rule. Among other things, the new rule:

• Limits tributaries to surface water conveyances that contribute perennial or intermittent flow during the year.
• Limits adjacent waters to those wetlands that either touch or have a hydrological connection to a water covered by the CWA.
• Limits ditches to those that: 1. fall into the category of traditional navigable waters; 2. are constructed in tributaries or relocate or alter tributaries; or 3. are constructed in adjacent wetland and meet the tributary definition.

The final rule also details 12 categories of exclusions (features that are not “Waters of the United States”) such as features that only contain water in direct response to rainfall (e.g., ephemeral features), groundwater, many ditches, prior converted cropland and waste treatment systems. The Waters Advocacy Coalition developed an explainer of the new rule.

GCSAA has dedicated advocacy efforts to advancing the golf industry’s opposition to the 2015 Clean Water Rule since it was first proposed in 2014. GCSAA, working in collaboration with the golf industry, worked with the EPA to ensure a replacement rule would return to cooperative federalism, a proper and sustainable balance between federal and state regulatory authority of surface waters.

The 2020 Navigable Waters Protection Rule reflects the results of meetings with federal regulators, members of Congress and their staffs and other impacted industries to make sure golf’s voice was heard. GCSAA has plans to organize a compliance webinar for its members in the near future.