Five things to know about WOTUS

If you were on Twitter yesterday you might have seen the discouraging news about the EPA and U.S. Army Corp of Engineers’ new WOTUS (Waters of the United States) rule that will start on Aug. 28. Golfdom sat in on the recent GCSAA-hosted webcast to learn as much as possible and how this will change superintendents’ jobs.

There was so much information from the webinar, and we did our best to condense some of the important parts. We came up with a list of five things to know about WOTUS.

1.) Where is the term WOTUS from, and what does it mean?

Deidre G. Duncan, a partner at the D.C. law firm Hunton & Williams, who practices environmental, energy and administrative law, explained the WOTUS rule during a recent webcast.

WOTUS is defined in the Clean Water Act (CWA) which says the federal government has control over “navigable waters,” also known as “the waters of the United States.” That federal control prohibits pollutants, like chemicals used on golf courses, from being put into “the waters of the United States” without a permit.

So, the new WOTUS rule is just an expansion of the term “waters of the United States” and “navigable waters” from the original CWA. 

2.) What does the new WOTUS rule affect?

Starting Aug. 28 eight categories of waters could fall under federal jurisdiction and if one is on or, in certain cases, near your course you will need a permit from the EPA, a state government or U.S. Army Corp of Engineers.

1. Traditional navigable waters (TNWs)

2. Interstate waters

3. Territorial seas

4. Impoundments of otherwise jurisdictional waters

5. Tributaries

6. Adjacent waters

7. Enumerated regional features with a significant nexus

8. Waters in the 100-year floodplain or within 4,000 feet of a water of the United States with a significant nexus

Categories five through eight are the new water features that are going to effect certain golf courses across the United States.

With these expanded definitions under Section 402 of the CWA, superintendents may be required to obtain a permit to apply fertilizers and pesticides. If a course is found to be in violation it could result in civil and criminal penalties. Section 404 of the CWA requires a permit on golf course construction or renovation projects like installing drainage, planting trees, dredging ponds/wetlands and fixing streams in areas under federal jurisdiction.

3.) What is a superintendent to do at a time like this to prevent any penalties or civil law suits?

Duncan suggests superintendents should:

• assess your golf course for water features that connect to other offsite waters;
• assess whether the water features were constructed in “dry land”;
• determine whether a permit is required to spray pesticides or fertilizers;
• and seek a jurisdictional determination if you are not sure where the water feature stands.

4.) Will there be a grace period after Aug. 28 to become compliant with the new WOTUS rule?

Plain and simple: no. Immediately on Aug. 28 a golf course will be in or out of compliance under the new rules.

5.) What is the EPA saying about the new rules?

If all of this worries you, the EPA has released a list on its website of things the CWA will not do. The CWA will not:

• protect any types of waters that have not historically been covered by the Clean Water Act;
• add any new requirements for agriculture;
• interfere with or change private property rights;
• regulate most ditches;
• change policy on irrigation or water transfers;
• address land use;
• cover erosional features such as gullies, rills and non-wetland swales;
• or include groundwater, shallow subsurface flow and tile drains.

You can download the slideshow that went along with Duncan’s presentation from Dropbox, and the entire webcast is available OnDemand on the GCSAA‘s website.