Water, Water Everywhere: Experts weigh in on WOTUS

By |  November 13, 2015 0 Comments

But with Waters of the United States, not a clear answer in sight

Last month’s second annual Virginia GCSA Fall Conference offered an impressive list of speakers — well known turf experts like Virginia Tech’s Erik Ervin, Ph.D., GCSAA’s Rafael Barajas, CGCS, and the USGA’s Elliott Dowling.

But the banquet room at Hermitage Country Club in Manakin-Sabot, Va., was at its fullest when a young Washington D.C.-based attorney previously unknown to the group walked up to the podium mid-morning, the second speaker of the day.

Kerry McGrath, an attorney in the office of Hunton & Williams LLP was there to deliver her presentation, “The Final ‘Waters of the United States’ Rule: Implications and Implementation.” For the attendees, this was a chance to get some questions answered: What is the future of Waters of the United States? What permits will I need? Where do I go for these permits?

McGrath answered the questions as best she could. Many were hard to answer — though no fault of her own, but simply because of the current legal morass that is Waters of the United States.

The most frustratingly difficult question to answer: What should superintendents be doing right now?

“The really unsatisfactory answer for right now: What you can do is look at your property and think, ‘What would (the Environmental Protection Agency and U.S. Army Corps of Engineers) say is jurisdictional? And what kind of evidence can I gather to make a case that it isn’t?’” she said.

Fair’s fair — a really unsatisfactory answer for a really unsatisfactory rule.

Defining what is water

Waters of the United States, or WOTUS, is an attempt by the Obama Administration to better define what constitute the “waters of the United States.” The Clean Water Act, implemented in 1972 (see timeline) is the current rule, but has met resistance in the U.S. Supreme Court over the last 30 years.

WOTUS, which many argue was created without properly involving all stakeholders, was issued in June of this year. WOTUS adds significant federal control of land and water resources, and complicates and expands what is considered a body of water.

But this Waters of the United States rule, ironically, doesn’t hold water. How else to describe a rule that declares locations within the 100-year floodplain and within 1,500 feet of water, no matter how dry, bodies of water?

“The way this reads, the definitions are so loose, it sounds like if you have a puddle in the middle of a fairway, that’s theirs now,” says Kevin Hicks, superintendent at Coeur d’Alene (Idaho) Resort Golf Course. “Which is preposterous, but that’s the way it reads if you read it literally.”

Last month the U.S. Court of Appeals for the 6th Circuit temporarily blocked the rule with a stay, making it unenforceable. Organizations across the country applauded that decision, but with the understanding that it is only a temporary victory.

“The judges expressed deep concerns over the basic legality of this rule,” Bob Stallman, president of the American Farm Bureau Federation, said in a statement. “We’re not in the least surprised. This is the worst EPA order we have seen since the agency was established more than 40 years ago. The court clearly understood our arguments. Unfortunately, we also know stays don’t last forever, and cases like this almost always take years to win.”

So while WOTUS is currently adrift, it hasn’t set sail.

“My gut says they’ll let things die down — public memory is short,” Hicks says. “Then they’ll jam it through again.”

“I’d say within the next few months, it’s possible the stay could be lifted,” McGrath told Golfdom. “I think there’s a good chance of the rule getting defeated in litigation later on, but it’ll probably go into effect before that all sorts itself out.”

Could get crazy

For Chava McKeel, GCSAA’s director of government affairs, Waters of the United States caught her eye right away as being a major concern for members of the association.

“When the rule came out, I thought it was a game-changer. I think it ranks really, really high of anything that’s happened in the 17 years I’ve worked (for GCSAA),” McKeel says. “It’s something superintendents need to pay attention to.”

As Kevin Hicks says, the trouble with WOTUS is its broad, enigmatic definition of bodies of water, and therefore what permits a superintendent might need to be in compliance. For a superintendent like Hicks, who has 3,000 feet of shoreline of Lake Coeur d’Alene to deal with along with a floating green, it’s a nightmare. But WOTUS could just as likely keep superintendents up at night in the desert Southwest.

“The rule is aimed at getting the smaller features, that’s what the environmentalists are pushing them to go after,” McGrath told the attendees at the VGCSA meeting. “It’s not the big lakes and ponds, but smaller ephemeral streams. This could get crazy — you might need permits for these smaller features that you previously didn’t need.”

Though WOTUS currently is under the Court’s stay, that doesn’t mean it should be forgotten, McKeel warns.

“My message is that WOTUS has been put on hold, but the Clean Water Act has not,” McKeel says. “Our superintendents need, as a best practice, to assess the water bodies on their courses; they need to determine which water bodies are Waters of the United States… because when you perform activities in, over, around or near them, it might kick in some obligations to get permits to do those activities.”

WHOA UNTO US
Under WOTUS, the following categories of waters are subject to federal jurisdiction:
1. Traditional navigable waters
2. Interstate waters
3. Territorial seas
4. Impoundments or 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 U.S. with a significant nexus

 

Gray areas

The WOTUS rule adds four new categories of water that the EPA and Corps of Engineers can monitor (see sidebar, “Whoa Unto Us.”) The verbiage is complicated (“a significant nexus”) and throws into the mix man-made ditches, dried-out creek beds and areas that have “historically” seen water.

“I think you’d be hard-pressed to find a spot on the landscape where you’re not, let’s say, within 1,500 feet from one of these small features,” McGrath says. “I think the fear is, depending on the way the agencies interpret and apply (WOTUS), it can be very expansive.”

For superintendents, it’s very frustrating.

“There’s such a gray area, and we don’t know how it’s going to be enforced,” says Brian Palmer, superintendent at Shoreacres in Lake Bluff, Ill. “My course is right on Lake Michigan, and I feel like whomever would be enforcing the rule would be blocking my projects.”

“I hate it, I absolutely hate it,” Hicks says. “To me this seems really rushed. The permitting process isn’t defined at all — they don’t know if it’s going to cost us $50,000 or $250,000. I’m not sure what the goal was, but it’s unfortunate that it got this far before someone said, ‘Wait a minute, let’s see what this is actually doing.’”

Palmer has hired an environmental consultant to make sure everything remains copacetic. “He’s up on all the legislation, the necessary forms and when to submit them,” he says.

Hicks, meanwhile, wonders how WOTUS would even be enforced.

“There aren’t enough resources to enforce this,” Hicks says. “If they’re going to make a rule and have it this important, and then not have the resources to back it up… I don’t see what the point is.”

Hicks’ biggest concern with Waters of the U.S. isn’t the definitions or the money; it’s the lack of resources to enforce the rule. That’s because part of WOTUS calls for third-party whistleblowers to help enforce it.

“That is the scariest piece of the puzzle,” Hicks says. “We’ve all had neighbors that have an axe to grind with us. That should scare all of us in the golf industry.”

Like-minded industries

GCSAA is being proactive in the WOTUS battle. When Golfdom interviewed McKeel, she was in D.C., attending meetings of the Water Advocacy Coalition (WAC) and speaking with federal policy makers.

And she wasn’t alone.

Robert Helland, the GCSAA’s new “boots on the ground” advocate, was with her. Helland worked for the law firm of Reed Smith LLC and was the association’s federal lobbyist for 10 years. Now the association’s director of congressional and federal affairs, the GCSAA has dissolved its relationship with Reed Smith and hired one of their former aces full-time.

When Helland is speaking against WOTUS he’s not alone, he says. WAC isn’t dominated by any one group, but includes such powerhouse industries as agriculture, transportation and home builders.

“I’m working hard with like-minded industries that are impacted by this rule to make an effort to basically go back and say, ‘Start over,’” Helland says. “Our current efforts are to defund the rule and ask Congress to not put any money toward it until we’ve had an opportunity to involve all the stakeholders and bring them to the table for a better alternative.”

Helland says that on the litigation side, which the GCSAA is not directly involved with, the courts are currently trying to decide which court is the best one to handle the case.

“It’s a bit complicated because the underlying act is complicated,” Helland says. “The dust hasn’t settled on that yet. I think it could go all the way to the Supreme Court.”

McKeel stresses that the GCSAA and its partners in WAC aren’t looking for freedom from water regulations, but simply a seat at the table.

“There’s a need for stakeholders to be a part of the process of developing the rule with EPA and the Corps,” McKeel says, “rather than developing something behind closed doors.”

Lunch break

The Virginia GCSA Fall Conference has broken for lunch, and following an interview with GolfdomTV, McGrath sits down to lunch with Virginia GCSA Executive Director David Norman and a handful of his members.

Idle lunchtime chitchat quickly flies out the door. McGrath might as well be behind the podium again, because she’s once again taking questions on the topic of WOTUS and what it means for golf courses. She shares superintendents’ frustration with the rule, she says.

“It’s frustrating, because we’ll show these photos of dry creek beds to the policymakers, and ask them, ‘Did you mean for this to be included when you wrote this?’ And they’ll say, ‘No, of course not.’ And we’ll say, ‘But you did.’” McGrath says. “The problem is, the people making these policies are so disconnected from what they’re trying to regulate… we have to open their eyes for them.”

An assistant superintendent raises an eyebrow and says, without even a hint of sarcasm, “Isn’t that politics?”

The table falls silent. For the first time, WOTUS makes sense.

Golfdom Associate Editor Grant B. Gannon contributed to this story.

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