On Tuesday, February 28, President Donald Trump issued an Executive Order (EO) directing the Environmental Protection Agency to proceed with rescinding or revising the Waters of the US (WOTUS) rule through the regulatory process. In the EO, the President directs that the new rule should respect the roles of Congress and the states, and cites the previous 2006 legal opinion of Justice Antonin Scalia in Rapanos v. United States as a starting point.
The Waters of the US (WOTUS) final rule dramatically expand federal jurisdiction over waters and wet areas in the US, including most water bodies on golf courses. The final rule was published in the Federal Register on June 29, 2015, and was slated to become enforceable 60 days later.
The rule has been legally challenged by 32 states, numerous industry groups and environmentalist groups on both procedural and substantive grounds. In October 2015, a nationwide injunction was issued by the Sixth Circuit of the US Court of Appeals which stayed the rule from enforcement. That injunction is ongoing.
The expansion of the WOTUS rule would have significantly impacted club operations and budgets as clubs will be required to obtain costly, federal permits for any land management activities or land use decisions in, over or near these additional regulated waters.
Today’s action is significant for landowners. Now, the EPA will restart the rulemaking process with this directive in mind and it is imperative that any new rule must be clear, well founded in law and science, and strike a necessary balance between protecting the environment and allowing businesses to thrive.