Proposed “Waters of the United States” Rule imposes massive costs and restrictions on golf course operations

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 government 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.