Waters of the United States

[Ed Brzezowski]

Went to a conference recently and heard some differing opinions as to the effect of this upon courses. What do you Supers think?  Is it as broad as to make rerouting a small creek impossible? How do you folks see this law?

[Steve Lang]

  Good question, but are Super's takes on the nexus of impacts on navigable waters stuff informed on the legal status of things and what it all means?

From:
Case 4:15-cv-00386-CVE-PJC Document 46 Filed in USDC ND/OK on 11/11/15 Page 10 of 11
Case 3:15-cv-00059-RRE-ARS Document 98 Filed 11/10/15 Page 6 of 7

{Note that Defendants are EPA & COE}

Plaintiffs’ Request for Scheduling Order
In light of denial of a stay, it is necessary to establish a schedule for progress of the
litigation. The court therefore orders:
(1) By November 20, 2015, defendants shall file a certified index of the
administrative record. As to any documents over which privilege is
asserted, defendants shall identify the nature of each document in a
manner that, without revealing information itself privileged or protected,
will enable plaintiffs to assess the claim of privilege.
(2) Any motions to supplement the administrative record shall be filed by
December 4, 2015.
(3) Plaintiffs shall file a motion for summary judgment on or before January 4,
2016.
(4) Defendants shall file a combined motion for summary judgment, and
opposition to plaintiffs’ motion for summary judgment, on or before
February 15, 2016.
(5) Plaintiffs shall file a combined response to defendants’ motion for summary
judgment and reply to defendants’ opposition to plaintiffs’ motion for
summary judgment on or before February 29, 2016.
(6) Defendants shall file any reply brief on or before March 21, 2016.
(7) The parties must jointly prepare and file an appendix, containing those
portions of the administrative record that are cited or otherwise relied upon
in any memorandum in support of or opposition to the motions for
summary judgment, on or before April 1, 2016.

The court recognizes that, in the event motions to supplement the administrative
record are filed, it may be necessary to amend this scheduling order.
Conclusion

For the reasons discussed above, defendants’ motion for a stay, (Doc. #90), is
DENIED, and plaintiffs’ motion for entry of a scheduling order, (Doc. #82), is
GRANTED.
IT IS SO ORDERED.
Dated this 10th day of November, 2015.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge7

[BCrosby]

The law of riparian rights, waters of the state, Corps of Engineer rules and related regs are complicated and comprehensive. They have been around for many, many years. Most, but not all, are local rules.

I am no expert, but you should consult one if you are altering how water flows across your property or how much water you are taking from ponds and reservoirs. It is easy to back into legal problems, some of which can be hard to fix ex post.

In ATL no one paid much attention to all that until we had back to back drought summers and water became scarce.



Bob

[Tom_Doak]

Went to a conference recently and heard some differing opinions as to the effect of this upon courses. What do you Supers think?  Is it as broad as to make rerouting a small creek impossible? How do you folks see this law?

It's been difficult to reroute a small creek for many years.  I don't know if this law changes that much, or not.  Basically, to do so you will have to come up with a plan to IMPROVE the creek and if you can convince the powers that be of that, you may be allowed to do it.


The big scare from the new law that I heard was that it will substantially increase the acreage around a creek that is subject to regulations on the use of fertilizers and pesticides.  These repercussions remain to be verified, and it's also unclear whether anyone intends to enforce the law in that way.

[Garland Bayley]

...
It's been difficult to reroute a small creek for many years.  I don't know if this law changes that much, or not.  Basically, to do so you will have to come up with a plan to IMPROVE the creek and if you can convince the powers that be of that, you may be allowed to do it.
...

And thank goodness for that. We had a green chairman that was set on rerouting a creek so his ball wouldn't end up in it all the time. His well thought out plan included getting land to drain uphill to the new creek routing. Sort of reminds me of when my wife complained to the ranger on Skyline Drive in Shenandoah NP that you couldn't drive to the base of the waterfalls for view, who's response was I don't know where you are from, but around here water flows downhill.

[Jeff_Brauer]

It has been difficult to reroute and/or pipe to take out of play (a la Augusta 6 many years ago).  In general, I don't think you should touch creeks in any, either doing a remodel or as a maintenance practice.  At least, not without going through the time consuming (and sometimes expensive) permitting process.

There are Fed laws, and there are state laws, which usually match up, but sometimes state laws are on top.  For example, in MN, the DNR labels certain streams as trout streams, and even make golf courses remove lakes that impound such streams to off stream locations. Nothing, apparently, is grandfathered in.  Superintendents didn't used to be affected by much after construction, but that seems to be slowly changing.

[RDecker]

The law's implementation and enforcement seem to be very uncertain.  The lawmakers wanted it to be on the books as it were but don't seem to be particularly motivated or clear about funding it's enforcement.  If a third party wants to use it to make trouble for a particular property owner or club in the case of golf it could be a potentially dangerous weapon in their arsenal.

[Steve Lang]

   don't confuse the WOTUS regulation from EPA published in the Federal Register with a law such as the Clean Water Act and its amendments in the US Code enacted by Congress.


It's most frustrating that EPA and the states haven't really developed their powers and activities authorized under Section 303(d) of the Clean Water act to further clean up impaired WOTUS in over 40 years.  No real will to act.. just paper chase activities and now this new regulation seeks to enlarge regulatory dominion to areas which clearly aren't even "navigable waters" (which used to mean you could float a popsicle stick down the flow path) in the name of some higher protection purposes.  IF you can't do the easy stuff right in front of you, how're you gonna do the complex?


GO LOOK UP YOUR regional impaired waters starting from http://www.epa.gov/tmdl  and see the hundreds of impaired waters listed... now imagine this listing growing to thousands of farms, golf courses, etc..  I know some beavers that are gonna be in trouble!

[Dave McCollum]

The EPA is not in the business of cleaning up or fixing anything.  They are in the business of enforcement of existing rules, policies, regulations, compliance procedures, and so on.  If you don’t think they are correct in how they do this, sue them.  Taxpayers pay for their lawyers.  Anyone wishing to fight must pay for their own.  Not many can.

[Bruce Katona]

Out-of-the-box ways of solving the rerouting issue is to build new or restore.  In many states (NJ is a leading candidate), it would be virtually impossible to reroute a moving waterway. 
 
Now, stream restoration & habitat enhancement - builing or renovating an existing stream bed, is a separate matter and sometimes is even a condition of issuing a permit.  Since stram restoration isn't an exact science or like building a swiss watch, field adjustments can be made.
 
By building new, I mean exactly that.  Virtually no permits are required to dig a hole in the ground to store water (you may need one if the dam wall is too high above existing grade as state agencies don't want dams to fail and flood downstream) or dig a ditch for water to flow down.  Once a hole holds water it's now a pond/lake and a ditch with flowing water could be a swale or erosiion feature - all of which may now be regulated. 
 
Again, as will always be poined out, what do I know.