Nearly four decades ago, the Federal Water Pollution Control Act was amended to more effectively regulate pollutants discharged into its protected waters. Through those amendments, the law was renamed the Clean Water Act (CWA) and its enforcement agency, the Environmental Protection Agency (EPA), was given the authority to determine what was “covered” water under the law.
Since then, EPA has expanded its regulatory reach over covered water under the CWA. In so doing, questions were raised regarding just how much “water” EPA has the right to regulate. After decades of Supreme Court cases in which the Court tried to clarify what water was covered under the law (and establish the limits of EPA’s authority), the Court indicated the agency would be given much deference in determining what is considered “water of the U.S.” if it actually created a rule to define covered water.
On May 27, EPA did just that by releasing the Waters of the U.S. Rule (WOTUS Rule). This rule alters the definition of covered water under the CWA to include water that is upstream as well as downstream. Additionally, it draws heavily on the Court’s “significant nexus” standard to cover other water. The standard states that there needs to be a “significant nexus” between non-covered water and covered water for there to be protection under the CWA. The WOTUS Rule is scheduled to take effect at the end of July.
Under this rule, private clubs across the country could soon have their ponds, creeks and streams fall under the CWA. Those clubs could be subject to EPA mandates that require permits before chemicals and fertilizers can be used if there could be runoff into this newly covered water. In short, this new rule will likely cost private clubs more time and money as they maintain their golf courses.
The Specifics of the Rule
The WOTUS Rule created eight categories of covered water. The first four categories—Traditional Navigable Waters, Interstate Waters, Territorial Waters and Impoundments of Waters—were already on the books and have remained the same. The next four were newly crafted under this rule. For clubs, these new categories will cause the most problems.
Tributaries—the fifth category of covered water—are defined as waters that have a bed, banks, an ordinary high water mark (OHWM) and a flow that goes (directly or indirectly) to other covered waters. Under this definition, perennial, intermittent and even ephemeral streams could be tributaries. Tributaries can also be natural, man-made or man-altered bodies of water, which could encompass many club water features.
The sixth category, Adjacent Waters, are contiguous to or “neighbor” covered waters. Neighboring water is defined as:
- All waters within 100 feet of the OHWM of the first five categories of covered water;
- All water located within the 100-year floodplain and within 1,500 feet of the OHWM of the first five categories of covered water; and
- All water within 1,500 feet of the high tide line of traditional navigable water, and territorial seas or within 1,500 feet of the OHWM of the Great Lakes.
Under this definition, a club’s brooks, streams, ponds and lakes could all fall under the CWA’s jurisdiction simply by being near other covered water or in its floodplain.
The seventh category is water labeled as “Prairie Potholes,” “Carolina and Delmarva Bays,” “Pocosins Wetlands,” “Western Vernal Pools in California” or “Texas Coastal Prairie Wetlands.” If your club has any of these types of water, EPA will look at them on a case-by-case basis
to see if there is a significant nexus to other covered water.
The eighth category is water located within the 100-year floodplain of the first three categories of covered water and all water located within 4,000 feet of the OHWM of the first five categories of covered water. Again, if a club has this type of water EPA will look at it on a case-by-case basis to determine if it should be labeled as covered water.
Exclusions to the Rule
While the rule established a number of new types of covered water, there are also some exclusions that could provide help for clubs. Those exclusions include:
- Artificially irrigated areas that would revert to dry land if application of water ceases
- Artificial, constructed lakes and ponds created in dry land (including irrigation ponds)
- Erosional features, including gullies and other ephemeral features as long as they do not meet the tributary definition
- Groundwater (including groundwater drained through subsurface drainage systems) and puddles
- Storm water control features made to convey, treat or store storm water and that are created in dry land
As noted, some of these exclusions require the land to have been “dry” before the introduction of the water. Unfortunately, EPA specifically declined to create a definition of dry land in the rule. As such, clubs will need to provide a historical review of their course to EPA to demonstrate that they are entitled to the exclusion.
What the Rule Means for Clubs
Under the CWA, any club discharging pollutants into covered water must first apply for and receive a National Pollutant Discharge Elimination System permit. This permit grants a club the right to discharge a certain amount of pollutant under specific conditions into covered water and to fill-in covered water. If a club has covered water on its property and it is discharging pollutants into that water or tries to fill-in that water without a permit, the club could be in violation of the CWA. Such a violation is punishable by civil and, in rare cases, criminal penalties.
For many clubs, compliance with this rule will mean first conducting an audit of all water on the course: going onto the property, walking it and determining with a measuring roller the exact distance one water is to another. From there, a club will need to determine whether it has any of the eight categories of covered water as outlined above (the last four categories will be the most critical).
To determine “Adjacent Waters,” look at where water is in relation to other water on the club property, determine if that other water is “covered” water, measure the distance from the water to the other covered water, determine the 100-year floodplain from EPA’s records and then, if necessary, get the permit.
To locate “Tributaries,” determine if the water has a bank, beds, OHWM and if the water flows to covered water. Unfortunately, much of this is subjective and filled with possible issues for club superintendents and GMs conducting the audit.
As such, the club staff should perform the preliminary work and then a consultant or EPA representative should officially determine which is covered water. Preliminary jurisdictional determinations (JDs) can be made by EPA, which may help clubs keep costs down compared to full JDs. With the release of the rules, EPA will be overwhelmed with JDs, but that is where a club should go to know for certain.
Once the covered water has been located, the club will have to determine the extent to which pollutants—chemicals and fertilizers—are discharged into that water. Finally, clubs should review the exclusions to see if the club is exempt from these requirements. EPA can assist with both of these. If no exclusions apply, then the club will need to acquire the appropriate permit from EPA.
To contact your local EPA office, please visit http://www2.epa.gov/home/health-and-environmental-agencies-us-states-and-territories.
Conclusion
Under the previous definition of “water,” many club leaders never had to comply with the CWA. The WOTUS Rule now changes that. With the rule’s full implementation, there could be a significant financial and environmental impact on private clubs across the country.
Without doubt, NCA believes EPA has overreached on this rule. Therefore, we will continue to fight for pending bipartisan legislation in Congress that overturns it. However, with a veto of such legislation likely, NCA and our allies have also begun the process of filing litigation to stop the WOTUS Rule from moving forward.
For now, club leaders should expect the rule to begin as planned at the end of July. Unless we succeed in stopping it, the WOTUS Rule will cause club leaders to look at the water on club property in a very different way.