Free Speech For People and the New Jersey-based Raritan Headwaters Association filed a comment arguing that the Environmental Protection Agency and U.S. Army Corps of Engineers are constitutionally prohibited from relaxing a Clean Water Act protection so as to benefit presidentially-owned golf courses.
The process for this rule has been somewhat complex. In 2015, EPA and the Army Corps finalized a new definition of “waters of the United States” clarifying the agencies’ view of the reach of the Clean Water Act. Industry groups, including in the golf industry, objected because it would protect some waters that might not have been protected before. In 2017, after an executive order from President Trump, EPA and the Army Corps laid out a two-step plan to repeal and replace the 2015 rule. In the first step, EPA and the Army Corps simply proposed to withdraw the 2015 rule. We submitted a formal public comment in this “step one” rulemaking. In the second step, EPA and the Army Corps would replace the 2015 rule with a new rule. As it happened, EPA and the Army Corps never finalized the first step; rather than respond to comments, they simply moved on to the second step proposal.
Trump Golf, Clean Water, and Domestic Emoluments
As we explained when this rulemaking was first announced, the benefits that Trump’s golf courses stand to gain from his order to rescind the rule run afoul of the Domestic Emoluments Clause of the U.S. Constitution. The clause provides:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The Domestic Emoluments Clause explicitly prohibits the U.S. government from conferring additional benefits upon the President, and there can be no doubt that this proposed rule would constitute a huge hand-out to Trump’s golf courses at the expense of the health and safety of the nation. Under the current rule, Trump’s golf courses would be required to take actions to preserve and protect water quality under Sections 402 and 404 of the Clean Water Act. That could range from applying for permits when planning to develop new areas or re-develop existing sites to taking actions to ensure that applications of pesticides and fertilizers don’t jeopardize water quality. It would also open up new avenues for citizens to hold Trump’s golf courses accountable in court for violations of the Clean Water Act. All of those actions add up to significant financial commitments to protect clean water that would be zeroed out by the proposed rule.
Our comment letter, which builds upon our previous comment in the earlier rulemaking proceeding that was never finalized, explains how the new rule would benefit the Trump golf courses including: opening the door for preferential treatment in permitting decisions; limiting obligations to obtain federal permits to protect water quality and prevent pollution; reducing the ability to halt operations without permits; exempting them from studying the potential impacts and costs of the development, modification, and operation of new and existing courses; the need to obtain permits for routine maintenance such as the use of pesticides and fertilizer; and increased liability for managing property, and urges the EPA and Army Corps of Engineers to provide a full analysis of the impact and to withdraw the rule.
Over 7,000 people have already submitted public comments urging the EPA and Army Corps of Engineers to provide a full analysis of the impact on Trump’s properties, and either exclude presidentially-owned properties or withdraw the rule.
Members of the public can comment until April 15, 2019.
Read our comment letter.
Submit your own comments via the government’s public comments web site.