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Issue link: http://gcmdigital.gcsaa.org/i/319440
36 GOLF COURSE MANAGEMENT 06.14 On April 21, after years of study, litigation, controversy and mayhem, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) jointly published, for comment, a new defnition of "waters of the United States" under the Federal Water Pol - lution Control Act, commonly known as the Clean Water Act (CWA). The purpose of this rule is to settle 40 years of debate as to what constitutes waters of the United States. But, in fact, the new pol - icy presents an aggressive direction for EPA and the Corps, appearing to place broad areas of wetlands, streams — including intermit - tent streams — and so-called "other waters" under federal scrutiny. If your golf course is either part of or adjacent to one of these bod - ies of water, you could be facing a host of new permitting requirements for any decision you make that impacts them. Under Section 502 of the CWA, jurisdic - tion frst applies to "navigable waters." Early environmental laws were structured to pro - mote and improve interstate navigation. Sec- tion 502 also applies to interstate navigable waters. The CWA also went further than its predecessors by defning navigable water to in - clude "waters of the United States" and what are known as the "territorial seas" — the wa - ters located within 3 miles of the U.S. coast- line. No further defnition was provided for "waters of the United States," so we have 40 years of court cases and federal rulemakings trying to do what Congress either could not or would not. As a result, we have a patchwork defnition of "waters of the United States" that focuses on interstate and navigable nature but also includes some lesser bodies of water that are connected to these types of waters. T ink "signifcant nexus." As we go fur - ther away from the term navigable, things get murky. With every push to go even fur - ther, the matter gets kicked to the courts, to decide the intent of Congress. In Rapanos v. United States, the Supreme Court had to de - cide whether the CWA applied to non-naviga- ble tributaries of traditional navigable waters. In 547 U.S. 715 (2006), the court decided it did, but was split as how to defne the connec - tion between them. Justice Kennedy ruled in a concurring opinion that any waters that share a "signifcant nexus" to navigable waters can be regulated under the CWA. This was not a ma - jority opinion, so the matter was not settled. With the split as to how far to go, the EPA and the Corps — perhaps not surprisingly — took Kennedy's "signifcant nexus" language and used it to formulate a rule today that defnes "waters of the United States." Land grab. Under the proposed rule, all tributaries (including perennial, ephemeral and intermittent streams) and adjacent waters (including adjacent wetlands) would be cate - gorically subject to federal oversight, with no additional analysis required. Additionally, a so- called "other waters" category would be added to include other bodies of water that do not fall into any other category. These would be eval - uated on a case-by-case basis. For every body of water, though, there has to be a "signifcant nexus," using Justice Kennedy's language, to the bodies of waters traditionally regulated under the CWA mentioned above. The con - nection must be so that the water impacts the "chemical, physical or biological integrity" of the traditionally regulated water. But the scope of these rules, and the uncertainty that remains behind them, indicates this is not a rule just af - fecting water decisions, but land use decisions as well. W at about ponds or dit es? Some of the uncertainty affects two types of water bodies found on golf courses: ponds and ditches. A tributary can be water "physically character - ized by the presence of a bed and banks and ordinary high water mark." But it can also be "wetlands, lakes, and ponds" that do not have a bed or bank or high water mark, as long as in either case the waters "contribute fow, either directly or through another water" to tradi - tionally regulated waters. The tributary can be Land grab (Advocacy) Bob Helland and Christopher Rissetto "natural, man-altered or man-made." The last words raise the possibility that tributaries could be expanded to include either man-made bodies of water such as ditches used for drainage purposes or ponds. While the rule specifcally excludes "ditches that are excavated wholly in uplands, and have less than perennial fow," no exclusion is provided for those that drain water downland. Further, while ponds are also excluded, they are only excluded if they are excavated from "dry land." So if an ornamental pond is connected to a larger water table (as most are), it is included. Me anics and strategies. It is not easy to overestimate the reach of this proposed rule on golf. Adoption of the proposed rule on "waters of the U.S." could have far-reaching conse - quences for the design, construction and man- agement of golf courses in the future. The rule is broad in scope, inconsistent with Supreme Court precedent, fails to provide reasonable clarity, and could adversely affect jobs and economic growth. GCSAA is working with a golf industry stakeholder team to develop comments by the July 21 deadline. Any com - ments raised must be addressed by the EPA and the Corps. Bob Helland is government services advisor with Reed Smith LLP, the Washington, D.C.-based frm that helps GCSAA advance its federal advocacy agenda. Christopher Rissetto's legislation practice with Reed Smith emphasizes the Clean Water Act, government contracts and other envi - ronmental law. 036-037_June14_Adocacy.indd 36 5/16/14 3:24 PM