EPA Finalizes the Clean Water Act (WOTUS) Rule
The U.S. Environmental Protection Agency and the Army Corps of Engineers have released a final Clean Water Rule (WOTUS rule) that includes expanded jurisdiction for the agency. It will take effect 60 days after publication in the Federal Register, which is anticipated in early June.
Under this final rule, many golf course water bodies may now come under federal jurisdiction including rivers, streams, creeks, wetlands, ponds, ditches and ephemeral drainages (land that looks like a small stream during heavy rain but isn’t wet most of the time). Golf courses that have these waters on them or near them will likely be required to obtain costly, federal permits for any land management activities or land use decisions in, over or near them such as pesticide and fertilizer applications and stream bank restorations and the moving of dirt.
GCSAA and the Waters Advocacy Coalition believe this final Clean Water Rule represents a significant expansion of federal jurisdiction beyond current practices and the limitations affirmed by the Supreme Court. Under the final rule, any water that might impact another water appears to be protected under the CWA.
GCSAA remains concerned the new Clean Water Rule will have a negative impact on golf course properties across the country. We are going to continue to support legislation in Congress that would have the agencies withdraw the rule and go back to the drawing board with impacted stakeholders to come up with a new rule that would create more clarity and consistency and bright lines. Make no mistake, the road ahead is challenging as it’s likely the President would not sign any legislation passed by Congress and it may be difficult to secure enough votes to override a Presidential veto. It is likely this rule will end up being addressed through the filing of litigation.
Eight categories of surface waters will be regulated moving forward:
(1) traditional navigable waters (TNWs);
(2) interstate waters;
(3) territorial seas;
(6) adjacent waters;
(7) enumerated regional features with a significant nexus; and
(8) waters in the 100-year floodplain/4,000 feet of a water of the U.S. with a significant nexus.
The first four categories have always been jurisdictional by rule. The next two categories (tributaries and adjacent waters) are jurisdictional by rule where features meet the definition. The final two categories (enumerated regional features and waters in the 100-year floodplain/4,000 feet of a water of the U.S.) are jurisdictional where the agencies find, after a case-specific analysis, they have a significant nexus to TNWs, interstate waters, or territorial seas. The agencies have removed the proposed rule’s “other waters” category and replaced it in the final rule with these two case-specific types of jurisdictional waters.
Tributaries - Tributaries are defined as waters that have a bed, bank, an ordinary high water mark (OHWM) and a flow that goes, directly or indirectly, to other protected waters. Under this definition, perennial, intermittent and ephemeral streams can be deemed tributaries. Tributaries can also be natural, man-made or man-altered bodies of water, which could encompass many golf course water features. The rule allows for jurisdiction over ephemeral drainages that may flow for only a few hours or days following a rain event. The final rule suggests the use of aerial photography to delineate OHWM.
Adjacent waters - The final rule modifies the “adjacent waters” category by including a definition of “neighboring” that differs from the proposed definition. Under the final rule, neighboring means:
1) All waters located within 100 feet of the OHWM of the first five water categories;
2) All waters located within the 100-year floodplain of the first five water categories and not more than 1,500 feet from the OHWM of such water; and;
3) All waters located within 1,500 feet of the high tide line of the first three water categories.
Under the adjacent waters definition, brooks, streams, ponds, and lakes at a golf course can all fall under the CWA’s jurisdiction simply by being near other protected water. The final rule states that even if water is outside the scope of these “neighboring” distance thresholds, it can still be jurisdictional through a case-by-case significant nexus analysis.
Enumerated regional features with a significant nexus - Five subcategories of waters (prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands) are jurisdictional where they are determined, on a case-specific basis, to have a significant nexus to TNWs, interstate waters or territorial seas. If you have these types of water features, the EPA and Corps will conduct a case-by-case review to see if there is an appropriate connection to other protected water.
Waters in the 100-year floodplain/4,000 feet of a water of the U.S. with a significant nexus – This category includes water within the 100-year floodplain of the first three categories of protected water and all water located within 4,000 feet of the OHWA for the first five categories of protected water. If you have these types of water features, the EPA and Corps will conduct a case-by-case review to see if there is an appropriate connection to other protected water.
Exclusions - The final rule excludes:
-- Waste treatment systems, including ponds or lagoons designed to meet the requirements of the CWA;
-- Prior converted cropland;
-- Certain ditches: (i) ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; (ii) ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; (iii) ditches that do not flow, either directly or through another water, into a (1) through (3) water;
-- Artificially irrigated areas that would revert to dry land if application of water ceases;
-- Artificial, constructed lakes and ponds created in dry land (e.g., farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds);
-- Artificial reflecting pools or swimming pools created in dry land;
-- Small ornamental waters created in dry land;
-- Water filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
-- Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetlands swales, and lawfully constructed grassed waterways;
-- Groundwater, including groundwater drained through subsurface drainage systems;
-- Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land; and
-- Wastewater recycling structures constructed in dryland; detention and retention basins built for wastewater recycling; and water distributary structures built for wastewater recycling.
There is not a definition of “dry land” in the regulation because the agencies “determined that there was no agreed upon definition given geographic and regional variability.” However, the rule preamble states that “dry land” “refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds, and the like.” Many features will not qualify for exclusions because they were not created in dry land. Erosional features (gullies, rills, etc.) are not excluded where they exhibit bed, banks and OHWM. Stormwater control measures exclusion only applies where features were built on dry land, which must be shown by the applicant.
What should you be doing now?
It is important to start reviewing the water bodies on your property to determine whether they fall into any of the new categories mentioned above. If they do, then your course may need to comply with new future permitting requirements if you perform actions in, over or near them. The final rule should go into effect at the end of July so now is a good time to start assessing your water bodies. GCSAA is here to help. We will be posting additional information and compliance resources on our website as they are developed. For questions, please contact Chava McKeel, director, government relations, at (800) 472-7878.