WHAT GOLF COURSES CAN EXPECT FROM Congress and Regulators

BY JOE TRAUGER

It’s taken some time for Congress to get organized due to the five days it took to elect Rep. Kevin McCarthy (R-Calif.) Speaker of the House. Because McCarthy was not able to shore up his vote prior to Congress convening on January 3, rather mundane things like naming committee chairs, committee assignments and hiring staff got way behind schedule, which means hearings and markups to get legislation to the floor of the House was going to be slow in coming. Things began to pick up in March after both parties held their annual policy retreats to map out their strategies for the year ahead. With a Republican House and a Democratic Senate, we’re not likely to see significant legislation beyond what Congress absolutely must do this year such as lifting the federal debt ceiling, funding the government and reauthorizing national defense programs.

Waters of the United States (WOTUS)

Meanwhile, the Biden Administration kept plodding along with regulatory actions that have raised concerns among the business community, including private clubs. The Environmental Protection Agency (EPA) released the final rule redefining federal jurisdiction over waters of the United States (WOTUS)—the third such redefinition in eight years. The first WOTUS redefinition occurred in 2015 with the Obama administration’s version of WOTUS, which was challenged successfully in the courts and invalidated. The Trump administration provided a definition in its Navigable Waters Protection Rule in 2020 that was largely applauded by the business community due to its clarity, and the National Club Association (NCA) joined in support of the rule because it recognized that things like ditches and ornamental bodies of water were not subject to federal jurisdiction. The Biden administration repealed that rule and replaced it with what was claimed as a compromise between the two previous versions. Notwithstanding the characterization, the WOTUS rule recently finalized is effectively the 2015 rule on a longer timeline with just as much uncertainty over who has jurisdiction between federal, state and local authorities.

The Biden WOTUS rule has been challenged in federal courts by several interested groups, perhaps most notably the U.S. Chamber of Commerce and more than 20 states as an overreach by the EPA and Army Corps of Engineers. All this is happening under the specter of a pending decision from the U.S. Supreme Court in Sackett v. EPA, which could severely limit the breadth of the EPA’s authority under the Clean Water Act. If the Supreme Court sides with Sackett, it will undoubtedly throw the Biden administration’s WOTUS rule into a state of limbo at best and potentially vitiate the rule entirely at worst (or best depending on your perspective). NCA will monitor the moving pieces, but it would be fair to say that resolution to this policy ping-pong match would be in everyone’s interest.

Overtime

In addition to the EPA, the Department of Labor (DOL) is expected to release a proposed rule to increase the threshold under which employees are required to be paid overtime from the current level of just more than $35,000. The department was scheduled to release the proposed rule last fall, but we’ve not heard why there is a delay or what timeframe we can expect to see it. NCA met with officials at DOL to share our concerns with raising the level too high and urged them to reconsider the cap on commissions that can count toward the threshold from 10% to some higher level considering its potential impact on both employees and employers.

Independent Contractors

Another issue at DOL relevant to private clubs is the classification of individuals as either employees or independent contractors. The Department has proposed a rule that would make it more difficult to classify someone as an independent contractor by shifting the decision toward a “totality of circumstances” with equal weight given to all factors rather than focus on the worker’s degree of control over their work as it was under the Trump rule. NCA and the Club Management Association of America (CMAA) filed comments with the DOL in December opposing the change.

With two years remaining in President Biden’s term, a Republican House and a Democratic Senate, it’s very likely agencies will increase their regulatory output leading into 2024. If this is indeed the case, NCA stands ready to work with allies in the club community and business sector to push back on an overly aggressive regulatory agenda.

Joe Trauger is NCA’s vice president of government relations. He can be reached at trauger@nationalclub.org.