Like a golfer, who keeps hitting the ball off the tee into a water hazard, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) had hoped to find the fairway and see “the Clean Water Rule” passed under the umbrella of the Clean Water Act (CWA). Never mind that the U.S. Supreme Court had rebuffed similar efforts in 2001 and 2006.
But just like before, a court would have none of it. Last week, a federal judge in North Dakota dealt the EPA and Corps its latest setback when the court blocked passage of the rule, which attempts to clarify which “Waters of the United States” (WOTUS) are overseen by the federal government, from taking effect in 13 states.
This was good news as far as the Golf Course Superintendents Association of America (GCSAA) is concerned, which “continues to have concerns that the rule will add additional permitting and regulatory requirements and hurdles that could adversely impact golf course design and management,” according to a press release.
An environmental attorney, who spoke the Sports Litigation Alert on the condition that his name not be used, suggested that the golf course industry is concerned that ponds and remote wetlands could be lumped in the more navigable bodies of water as being under the purview of the EPA and Corps.
“If a golf course superintendent needs to fill a small pond or a wetland, he or she does not want to have to go to a mitigation bank and buy credits at $5,000 to $10,000 a pop,” said the attorney. “They just want to fill the pond.”
This was a victory for the GCSAA, which believes work remains.
“As an association, we were not pleased with how this rule was developed, and we will continue to support legislation to withdraw the rule, including Senate Bill 1140, which aims to get impacted stakeholders a seat at the table to develop a new rule that creates more certainty and bright lines” said Chava McKeel, GCSAA director of government relations.
Introduced in April, Senate Bill 1140 would require the EPA and the Corps to immediately withdraw the WOTUS rule, complete economic analyses and adhere to a certain principles when introducing any new rule. H.R. 1732 is the companion to S.B. 1140 and has already passed the full House.
McKeel said the golf industry supports clean water and that permits have always been required when activities were performed impacting “Waters of the U.S.” But now the definition of what is federally regulated water has been expanded to potentially include man-made lakes, water hazards on golf courses and ditches. There is also confusion as to what is and is not covered by and exempted by the new rule and there could be fines.
While the GCSAA was pleased with the ruling, Ducks Unlimited is concerned. The new rule has the fervent support of the organization, which seeks to preserve habitat for waterfowl.
“The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands,” Ducks Unlimited CEO Dale Hall said in 2014. “We are also pleased with the open process EPA has adopted, which invites the public, Congress and all interested parties to participate in the discussion. EPA’s draft science report last year showed many categories of wetlands, including prairie potholes, may be geographically isolated but are still connected to, and have a significant impact on, downstream waters.”
Ducks Unlimited went on to note that “the nation lost approximately 550,000 acres of the wetlands most important to waterfowl and other fish and wildlife each year from the mid-1950s to mid-1970s. Enacted in 1972, the Clean Water Act played a significant role in slowing the rate of wetland loss to about 80,000 acres per year by 1998. However, U.S. Supreme Court cases in 2001 and 2006 resulted in the withdrawal of Clean Water Act protections from more than 20 million acres of vital wetlands.”
