NCA Alert: EPA Releases New Waters of the United States Rule

Published Thursday, December 13, 2018
by Brad D. Steele

On December 12, the Environmental Protection Agency (EPA) released its revised version of the Waters of the U.S. Rule (WOTUS Rule). This new regulation replaces the 2015 WOTUS Rule that altered the definition of protected water under the Clean Water Act (CWA).

NCA and our allies in the Waters Advocacy Coalition have been pushing for substantive changes to the previous WOTUS Rule over the past three years. This new regulation will relieve the pressures clubs have faced under the old rule.

Specially, club golf course water will largely be removed from the categories of water covered under the CWA. As such, clubs will no longer be required to secure EPA permits for the use of certain chemicals and fertilizers on their golf courses.

Under the old rule, these permitting requirements were created to minimize chemical and fertilizer runoff; however, the inclusion of club water under the CWA was never the intent of the law. That fact, coupled with the financial and administrative impact to clubs the old rule posed, were the main reasons NCA worked so hard to change it

Specifically, the new rule establishes straightforward and predictable categories of protected water.

The first is “Traditional Navigable Waters” (TNW). TNW is defined as water used, in use, or susceptible to use in interstate or foreign commerce as well as territorial seas and tidal waters. That water rarely includes golf course waters.

“Tributary” water is water that flows to TNW. Under the old rule it included a very broad definition of waters, including rivers streams, creeks and brooks as well as intermittent and ephemeral waterways. The new rule adds more specificity and removes ephemeral waterways (those from rain storms and the like).

Rivers, streams or naturally occurring water that contributes to perennial (year-round) or intermittent (continuously during certain times of a typical year) flow into a TNW is now the standard for Tributary waters. The rule highlights the fact that Tributary water must be continuous and not caused by precipitation and that it must end up in a TNW.

“Lakes and Ponds” are also covered. Lakes and ponds are protected under the CWA only if they are TNW or contribute perennial or intermittent flow to a TNW or if they are flooded by TNW or Tributary water in a typical year. Additionally, artificial lakes and ponds (like water storage ponds) constructed in a non-wetland area are not protected water under the CWA.

Finally, the new rule provides far greater guidance regarding wetlands adjacent to other protected water. “Adjacent Wetlands” must be adjacent (touch at least one point or side) or have direct hydrological surface connection (through flooding or perennial or intermittent flow) to other CWA protected water. As such, golf course wetlands that are separated from other protected water AND lack direct hydrological surface connection are not “adjacent wetlands” and not covered under the CWA.

This new rule also removes definitions of protected water that encompassed things like a “bed, banks, an ordinary high-water mark” under the old Tributary definition as well as the perplexing requirement that protected water could be water that is within 100 feet of other water or 1,500 feet and within a 100-year floodplain of more water. It also removed the chance that puddles could be classified as protected water.

In short, this new WOTUS Rule outlines that water likely to lead to a source of drinking water shall be protected rather than the old rule’s mandate that almost any category of water is to be protected. With this rule, we believe EPA has established something that better compiles with Congressional intent as outlined in the CWA and will better serve the club industry.

EPA has given the public until mid-February to provide comments on this proposed rule, which NCA and our golf allies will do. After reviewing those comments, EPA will issue its final rule in late spring or early summer. This final rule will likely go into effect 60 days following its release. As such, the new Waters of the United States Rule should be applicable to all clubs by June or July of 2019.

While the administrative process moves forward, there is a strong likelihood that environmental groups will initiate litigation to stop the rule. As such, the coming court battle may further delay the effective date of the rule. EPA is ready for this eventuality and we will keep you updated as events unfold. For now, our voice has been heard and a new WOTUS Rule has finally been proposed.

NCA will keep you up to date regarding when the rule starts. Should you have any questions about the rule or its impact on your club, please contact NCA's Vice President of Government Relations and General Counsel, Brad D. Steele, at steele@nationalclub.org.

Thank you for being a part of NCA.

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