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Chava McKeel, GCSAA
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;
(4)
impoundments;
(5) tributaries;
(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;
-- Puddles;
-- 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.
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