In my travels, I have spoken to chapters regarding the proposed expansion of the Clean Waters Act by the EPA and Army Corps of Engineers. I thought this information from GCSAA's government relations department may be helpful to members. It is my hope that after reading this information you will visit the g
overnment relations section of the website (found under the community tab on the home page) where you can request that Congress allows for an additional 90 days for public comment on this issue. The following summary was provided by Chava McKeel, GCSAA associate director, government relations:
Proposed “Waters of
the United States” Rule imposes massive
costs and restrictions on golf course operations
I.
Overview: The Environmental Protection Agency (“EPA”)
and Army Corps of Engineers (“Corps”) have proposed a rule that would bring
nearly every river, stream, creek, wetland, pond, ditch and ephemeral (land
that looks like a small stream during heavy rain but isn’t wet most of the
time) in the United States under the jurisdiction of the Clean Water Act
(“CWA”). Under the rule, all tributaries
and adjacent waters, including adjacent wetlands, would be categorically
subject to federal oversight, with no additional analysis required. Additionally, the EPA is proposing a sweeping
“other waters” category that could include almost everything else. 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 made.
An attempt to clarify vague
congressional language…The
intent of the EPA and the Corps was to end 40 years of debate as to what
Congress meant by the term “waters of the United States” (WOTUS) under Section
502 of the CWA. But to accomplish this,
EPA and the Corp took the non-binding “significant nexus” test proposed by
Justice Kennedy in the case of Rapanos v.
United States and made it the basis of a rule that would add three new
categories of water under the CWA’s jurisdiction.
1. Tributaries of waters traditionally regulated
under the CWA (defined for first time to include ditches and any feature that
carries flow, regardless of volume).
2. Waters
adjacent to the newly-defined tributaries or any water traditionally regulated under the CWA,
including adjacent ponds, ditches and wetlands.
3. So-called
“other waters”, a
catch-all term that’s deliberately vague and uses undefined terms such as
similarly situated and the concept of aggregation.
…goes much further.
For every new body of water to be included under the CWA there has to be
a significant nexus between it and the bodies of waters traditionally regulated
under the CWA. The connection must be so
that the water impacts the “chemical, physical or biological integrity” of the
traditionally regulated water. If
allowed to stand, this would include almost every water body in the U.S.,
except those that are geographically isolated.
If finalized without significant change, the rule will subject more activities on golf courses to additional permitting
requirements, environmental impact analyses, costly mitigation and citizen
lawsuits.
II. Points to raise with federal
decision makers:
A.
Access to water is vital for the health, beauty, and economic viability
of golf courses. Subjecting golf courses
to an expensive and unpredictable permitting process will threaten all of this. According
to GCSAA’s Property Profile and
Environmental Stewardship of Golf Courses – Volume I from the Golf Course
Environmental Profile, an average 18-hole golf course comprises 150 acres. Of those 150 acres, 11 acres are comprised of
streams, ponds, lakes, and/or wetlands for a total footprint of 161,183 acres
nationwide. Golf courses have been designed to take advantage of the
availability of these waters to both enhance the golf experience and provide
much needed water for course activities.
In many instances, golf courses have been designed to collect runoff
from adjacent properties for flood control and pollution prevention. Courses
use this runoff as an irrigation source as well. In many cases, courses use
reclaimed water to help water purveyors handle excess recycled water. The
course irrigates with this water providing filtration and an economical
solution. The proposed rule could limit and possibly end golf course operations
with superintendents required to get costly federal permits that would now
apply to their operations, including:
Sections 402 of the CWA impact golf
courses. Section 402 establishes the National Pollutant
Discharge Elimination (NPDES) permitting program, in which EPA or states (with
EPA oversight) can issue permits for discharges of pollutants into WOTUS. If
almost all water bodies on a golf course are deemed WOTUS, many routine golf
course management activities (such as fertilizer and pesticide applications)
will be deemed to result in a “discharge” to those so-called WOTUS. Activities
that result in a “discharge” cannot legally go forward without a required permit.
Most important, there is no legal right to a permit to “discharge” into WOTUS —or
any deadline on an agency’s process to issue a permit. Permitting may take
months or even years, or permits may simply be unavailable.
Sections 404 of the CWA impact golf
courses. Section 404 allows the Corps to issue permits for
discharges of “dredge and fill” material into WOTUS. This includes discharges
that would result from moving soil, such as planting trees, installing
drainage, dredging ponds/wetlands, and fixing stream alignments or banks below
the ordinary high water mark including rip rap for erosion protection. Under
federal authority, proposed golf course construction or renovation projects
within jurisdictional areas may require an individual, regional or nationwide
permit. The rule would give much greater authority for the federal government
rather than the state to approve or deny these projects.
Costly permits, burdensome paperwork
and citizen action lawsuits are of concern. If permit coverage is obtained, permits often include
paperwork and reporting requirements in addition to any requirements aimed at
protecting water quality. Violations of these paperwork or reporting
obligations carry the same potential penalties as unlawful “discharges”—up to
$37,500 per violation per day —and may be enforced by EPA, the state or even
interested citizens groups. Citizen-suit traps can disrupt operations &
jeopardize businesses.
Drain on state resources. The rule doesn’t address effects on
state-federal resources of permitting, oversight and enforcement. States have
agencies and departments that are in charge of environmental protection and
water quality, and state-led programs that promote BMP implementation should be
strengthened.
B.
Golf course superintendents are environmental stewards who work to
protect the environment.
GCSAA supports water quality protection laws and regulations that are based on
sound science and credible data and promote the values of turfgrass and
professionally managed landscapes. Golf course pesticide applicators
are trained in the safe and proper use of pesticides within an integrated pest
management (IPM) system. Golf course superintendents follow BMPs for proper
pesticide management of the course. IPM is key to healthy turfgrass and is part
of the agronomic and environmental BMPs. Golf courses incorporating physical
(swales, wetlands, etc.), agronomic and environmental BMPs help to ensure water
quality protection. Cultural/agronomic practices (aerification, correct mowing,
etc.), IPM/nutrient management and environmental practices (equipment washing
to chemical storage) provide healthy turf and help golf courses provide healthy
greenspace in the watershed. The ability to provide a healthy turfgrass
stand depends on being able to use the types of BMPs that would be prohibited
if EPA denies a permit for them.
C.
Properly maintained turfgrass provides many community benefits.
This includes critical "greenspaces”, habitat for birds and other
wildlife, recreational opportunities, capture of run-off pollutants in
stormwater, carbon sequestration, and oxygen production. In addition, many
entities both public and private rely on healthy turfgrass as a key component
in maintaining financial revenues. Healthy turfgrass acts to reduce the velocity
of runoff and filters particulates and contaminants from water bodies.
III.
Conclusion: GCSAA does not
support the EPA or the Army Corps of Engineers expanding the jurisdictional
reach of the federal Clean Water Act.
This would be an unprecedented expansion of the regulatory authority of the
federal government. Expanded federal jurisdiction would pre-empt traditional
state and local government authority over land and water use decisions and
alter the balance of federal and state authority.
