EPA and Army Corps of Engineers' final Clean Water Rule effective Aug. 28; 6th Circuit Court of Appeals Puts Rule on Hold Nationwide

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) jointly released a final rule to clarify protection under the Clean Water Act (CWA) for streams and wetlands that form the foundation of the nation’s water resources on June 29, 2015. THE RULE WAS SUPPOSED TO BECOME EFFECTIVE ON AUG. 28, 2015. HOWEVER, THE 6TH CIRCUIT COURT OF APPEALS PUT THE RULE ON HOLD NATIONWIDE ON OCTOBER 9, 2015.

GCSAA members need to pay attention to this important change, which will impact golf course design, construction and management. The agencies are redefining the definition of "Waters of the United States" within the CWA and this change will impact all CWA programs. 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.

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

Next Steps

The new 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 JULY 28 WOTUS WEBCAST TO LEARN MORE ABOUT THE FINAL RULE:

July 28, 2015 The Final "Waters of the United States" Rule: Implications and Implementation webinar presented by Waters Advocacy Coalition attorney Deidre Duncan.

2) DETERMINE IF YOU HAVE 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.

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 Floor 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 QUESTIONABLE OR UNCLEAR, CONSIDER SEEKING OUT A LOCAL ENVIRONMENTAL CONSULTANT FOR HELP

You may consider finding an 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".

Permit Considerations

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); and

4) any state stream/water quality/flood plain permit.

404 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.

To learn more about the 404 permitting process, click here.
To find your local 404 permitting contact, click here. Look for the "How Do I' box on the page.

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.

To learn more about the NDPES pestice program, click here.
For a list of state NPDES contacts, click here.