While waiting for the Biden Administration to announce the replacement to the 2020 Navigable Waters Protection Rule (NWPR), Congress has not been quiet. There have been several bills introduced that would impact the rulemaking process, if passed. In addition, questions about the Administration's next steps have been raised directly with EPA Administrator Michael Regan. Hanging over all of this is a case pending before the Supreme Court in the fall that has the potential to impact rulemaking:  Sackett v. EPA.  In Sackett, the plaintiffs are contesting a jurisdictional decision by the EPA that a wetland adjacent to their property is a Water of the United States (WOTUS). The Court is being asked to determine the test to apply to determining a WOTUS, which would greatly impact the rulemaking process.

Here's the latest:

There are three legislative actions recently that impact WOTUS rulemaking as well as water permitting in general.  While none have chance of immediate passage, they show the interest on the part of members to continue to exercise their oversight authority.:

• H.R. 7771, sponsored by Rep. David Rouzer (R-NC-7), would require the EPA and Army Corps of Engineers to study the cost of an applicant obtaining a CWA Sec. 402 or 404 permit, including permitting time. Problems with the scope, cost and timing of federal water permits have been key arguments made by golf and its allies in their opposition to WOTUS. A mandatory report to Congress can ensure greater accountability. This legislation has been referred to the House Transportation and Infrastructure Committee.
• H.R. 8079, the "Reducing Farm Input Costs and Barriers to Domestic Production Act", sponsored by Rep. Glenn Thompson (R-PA-15), the Ranking Member of the House Agriculture Committee. Section 6 of this bill would reinstate the 2020 Navigable Waters Protection Rule. There is also language that impacts pesticide use on golf courses, allowing golf and other users access to existing stocks of any suspended or cancelled pesticide for five years and preempting efforts to modify the label of glyphosate at the state level. This legislation has been referred to the Agriculture Committee.
• Fiscal Year 2023 Appropriations process, a.k.a. "No WOTUS before SCOTUS". It is anticipated that several Republicans to sponsor an amendment to the upcoming FY 23 Interior Appropriations bill that prohibits the EPA and Army Corps from implementing any replacement rule until the Court decides Sackett. The chance of this getting adopted is low.

On June 16, Republican senators had a closed-door meeting with Regan to discuss WOTUS and the concerns raised by the Sackett case. While no commitments were made by the administrator, this was a clear signal that the senators will also play an oversight role in the coming months. The results of the upcoming midterm elections will indicate the likelihood of even greater action, should Republicans regain control of the House or Senate.

Expect GCSAA to continue to advocate for golf’s interests.