Aug 3, 2021

The Biden Administration announced the next steps for another attempt at defining WOTUS in the Clean Water Act.

We’ve seen this movie before: Last week, the Biden Administration announced the next steps for another attempt at defining the "Waters of the United States" in the Clean Water Act. While we don’t know the direction a new rule will take in defining the water features that are on, over and near golf courses, it is looking more and more likely that the new rule will be sweeping. Expect GCSAA to fight vigorously for golf’s interests in the writing of this rule and its implementation.

The key takeaways from last week’s briefing by EPA and Army Corps officials are:

1. A two-part rule-making process is envisioned. The first rule would repeal the 2020 Navigable Waters Protection Rule (NWPR). This would bring things back to the regulatory scheme in place before the 2015 Clean Water Rule (WOTUS), which has also been repealed. This is not a positive place to be, from golf’s perspective. It returns us to the lack of certainty over what is a “tributary” or “adjacent wetland” – an uncertainty that led to problems in the first place. So, the Biden Administration would follow this with a new rule with updated definitions. Officials on the briefing call indicated that the first rule would be published before the end of the year. No word on the timing of the second rule.
2. How far will the new rule go? Officials on the call would not discuss the details or scope of a new rule, but it cannot copy the (repealed) WOTUS rule because that rule was struck down in federal court, and it would not copy the NWPR. Between these two rules lie several questions: Could a ditch with a concrete bed be considered a “tributary”? Could a wetland be considered “adjacent” to a federal water if the only connection was underground? And what about isolated waters? This is going to be a tricky needle for the Biden Administration to thread.
3. A public comment period has begun. Even without a proposed rule, the administration has begun to take comment on a re-write of the NWPR. This includes a schedule of virtual comments and regional roundtables, as well as the expected written comment period. GCSAA will participate in every stage of commenting as well as through direct and grassroots lobbying to ensure golf’s voice is heard.

What should I do?

First, don’t panic. The NWPR remains the law of the land so the permitting requirements for the movement of dirt and application of pesticides on, over or near federal waters remain the same today as they did yesterday (and will do so tomorrow). The federal rule-making process is designed to be slow so that the public will be heard. There won’t be a change until the end of the year, at the earliest, and the administration will have a large hurdle to clear when it comes to writing a rule that is clear and meets judicial scrutiny. We do not know any details yet and will make sure that regulators know why it is important to get this right.