Revised WOTUS Rule Ignores SCOTUS Ruling Leaving Landowners with Uncertainty
On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a final rule that amends the January 2023 definition of "waters of the United States" (WOTUS). The amendments conform the January 2023 definition to the U.S. Supreme Court's decision in Sackett, as interpretated by the EPA, and will take effect immediately upon publishing in the Federal Register (likely within two weeks).
The revised final rule (1) removes the significant nexus test as a basis for finding tributaries or other waters are WOTUS; (2) revises the adjacency test for when a wetland is adjacent and therefore WOTUS; (3) clarifies that interstate wetlands do not fall within the interstate category of WOTUS; and (4) clarifies the types of features that can be considered under the "additional waters" category. The revised final rule does not change the exclusions from the definition of WOTUS or the activity-based permitting exemptions.
Read a full summary of the rule revisions
Our Coalition released a statement that reads, in part: "This revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act. Even worse, the agencies did not allow public input and engagement in the revision process."
We are working with our Coalition partners to scope out a legal/litigation approach to these issues.
Read the Water Advocacy Coalition's full statement
Read the Water Advocacy Coalition's recommendations on revisions
NAR Joins Reform Coalition to Address Cost of Proposed Endangered Species Act (ESA) Revisions
The Department of Interior has proposed regulations to revise the ESA (sections 4, 4(d) and 7) that address various aspects of how a species is declared endangered, how critical habitat is designated, and how other agencies use the ESA in fulfilling their agency goals and missions.
The revisions are concerning for property owners. They make it easier to declare a species endangered and designate critical habitat, under-emphasize the costs of these regs to landowners, and do not take into account the adverse economic ramifications to regulated stakeholders that these regs will create.
Here's what would change with revisions to the current act:
- The requirement that economic impacts not be considered in listing decisions;
- The framework for determining the “foreseeable future” as applied to the listing of threatened species;
- The circumstances when the Services may find that is it not prudent to designate critical habitat;
- The process and requirements regarding the designation of areas as unoccupied critical habitat;
- Revise the process for consultation between the Services and a federal agency on whether a proposed federal action will jeopardize the continued existence of a threatened or endangered species or result in the destruction of critical habitat.
NAR is working with NESARC (National Endangered Species Act Reform Coalition) to create a robust set of comments on behalf of the regulated community. Check back here for future developments on this issue.
Waters Advocacy Coalition (WAC) Urges U.S. Army Corps of Engineers (Corps) to Lift Moratorium on Determining Jurisdiction Over Wetlands
Despite a unanimous rejection by the Supreme Court of the “significant nexus test” used by the U.S. Army Corps of Engineers (Corps) and the EPA to determine jurisdiction over certain wetlands, the Corps has issued a moratorium on approved jurisdictional determinations (AJDs). The Corps' decision to stop making AJDs has resulted in uncertainty for job creators, food producers, housing developers and other important sectors of the national economy.
Read the full Waters Advocacy Coalition Letter to the Corps.
Waters Advocacy Coalition Backed by NAR Applauds Supreme Court's Pro-Property Rights Ruling in WOTUS Case
The Waters Advocacy Coalition, made up of 17 industry organizations including the National Association of REALTORS, applauds the U.S. Supreme Court's May 25 ruling that only wetlands adjoined to larger bodies of water are regulated by the Clean Water Act.
“The Supreme Court’s historic decision to define the limits of EPA authority under the Clean Water Act is a victory for private property owners across the country,” said Courtney Briggs, Waters Advocacy Coalition chair. “The ruling preserves protections for our nation’s valuable water resources while delivering much-needed clarity to the process of determining federal jurisdiction over wetlands."
Read the full release here.
U.S. Supreme Court rules in favor of private property rights in two significant cases.
On Thursday, May 25, 2023 the Supreme Court issued two favorable decisions on cases related to private property rights, one of which NAR directly supported (Tyler) and the other which directly impacts a rulemaking that NAR has been litigating that should also turn out favorably based on the Court’s decision (Sackett).
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The first is Tyler v. Hennepin County, where an elderly homeowner who lost her condo to foreclosure alleged that the county violated the ban on takings without just compensation when it kept not only the $15,000 that she owed, but the excess profit from the sale of the condo as a windfall. NAR, along with the American Property Owners Alliance and the Minnesota REALTORS®, filed an amicus brief in support of the property owner’s entitlement to the surplus equity, arguing the state statute effectuates an unconstitutional taking of private property under the Fifth Amendment.
The court unanimously held today that Tyler has plausibly alleged a violation of the Takings Clause. “History and precedent dictate that, while the County had the power to sell Tyler’s home to recover the unpaid property taxes, it could not use the tax debt to confiscate more property than was due. Doing so effected a “classic taking in which the government directly appropriates private property for its own use.””
Today, most States and the Federal Government require excess value to be returned to the taxpayer whose property is sold to satisfy outstanding tax debt, but there are a number of states with laws like MN that should be changed as a result of this ruling. We are available to work with states to enact favorable statutes to prohibit home equity theft, which should be easier in light of this decision.
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The second, is Sackett v. EPA, where two Idaho homeowners fought to develop a lot near a lake, but the EPA prohibited them from moving forward, stating the land was protected wetlands under the Clean Water Act (CWA). The “significant nexus” test was applied, which looks at whether there is a “significant nexus” between the wetlands and waters that are covered by the CWA, and whether the wetlands “significantly affect” the quality of those waters. NAR is part of ongoing litigation related to an EPA rule defining WOTUS, which will be impacted by this decision.
The Court held unanimously in favor of the property owners, rejecting the “significant nexus test” and narrowing the definition of what constitutes a wetland under the CWA. The Court rejected the broader view held by the EPA, stating that the CWA applies only to wetlands that are "as a practical matter indistinguishable from waters of the United States." Therefore, the party that wants the CWA to apply to adjacent wetlands must show that the adjacent body of water is a "water of the United States" -- that is, "a relatively permeable body of water connected to traditional interstate navigable waters" -- and that the wetland "has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." “By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.”
WOTUS rule now preliminarily halted across half the U.S.
Twenty-eight states are enjoined with preliminary injunctions to stop implementation of the Biden administration's new Waters of the U.S. rule. Here's a look at which states have stopped the rule:
A litigation coalition, made up of NAR and 17 other associations and councils, will continue legal efforts after a Congressional Resolution Act to overturn the rule was vetoed by Biden and failed to get a majority vote in the House to override the veto. Stay tuned for more WOTUS updates in the coming weeks.
WOTUS rule receives preliminary stop in TX & ID but will move forward national wide.
On March 19, 2023, a judge in Galveston, Texas, issued a preliminary injunction (PI) on the WOTUS Rule in Texas and Idaho, stopping the implementation and enforcement of the rule in those two states. The rule is slated to go into effect today.
In the same ruling, a nationwide PI requested by NAR and 16 other trade associations was denied. While the nationwide PI was denied, the broader lawsuit moves forward, with the first hearing scheduled for later in March. This is one of several cases pending on this rulemaking.
Click here for more details on other related cases.
Read the preminary injunction filed in Galveston, TX court.
We will keep you updated as the legal battles continue.
Friend of the Court Brief Filed on Behalf of RLI, NAR and TAR in Appeals Case Regarding Warrantless Government Property Search
The case, Rainwaters v. TWRA, is currently before the Tennessee Court of Appeals. The case involves claims that agents of the Tennessee Wildlife Resources Agency violated rights protected under the Tennessee Constitution by entering private land without a warrant or exigent circumstances.
As counsel for the National Association of REALTORS®, REALTORS® Land Institute, and Tennessee Association of REALTORS®, Nate Kinard at Chambliss Law recently filed an amicus curiae brief in the Tennessee Court of Appeals. The filing of the brief is an important next step before oral arguments are heard by the court.
To better understand the Open Fields issue & what’s at stake for landowners, read an interview recently published in the Winter 2023 issue of Terra Firma.
Coalition Files Preliminary Injunction to Stop Costly WOTUS Rule From Moving Forward
A WOTUS Litigation Coalition, which is comprised of the National Association of REALTORS® and 17 other associations and councils, filed a Preliminary Injunction on February 8, 2023 to stop the WOTUS Rule from moving forward prior to its effective date of March 20, 2023. You can read the motion here.
The new WOTUS rule expands Federal jurisdiction over dry land and isolated waters beyond the status quo. The rule's vague language and lack of definitions for key terms will result in significant costs to ranchers, farmers, small businesses, and communities.
Get a quick understanding of why the new rule presents a burden to landowners with a WOTUS "Fact v. Myth" breakdown from the Waters Advocacy Coalitions
Coalition Files Suit to Stop WOTUS Rule
The National Association of REALTORS®, along with 13 other organizations, have filed suit against the Environmental Protection Agency and the Army Corps of Engineers over the legality of a new Waters of the U.S. rule that creates uncertainty for property owners due to vague and unpredictable standards for navigable waters.
Read the full statement from NAR.
New Water Rule Increases Confusion, Lacks Clarity
The REALTORS® Land Institute and the National Association of REALTORS® are deeply concerned with the Environmental Protection Agency’s and Army Corps of Engineers’ final Waters of the United States (WOTUS) rule, announced on December 30, 2022. This definition of WOTUS adds uncertainty and confusion to the regulatory process, raises housing costs and increases federal overreach in the permitting process. The rule will take effect 60 days after publication in the Federal Register.
RLI Advocates Against Tax Changes Detrimental to Family Farmers and Ranchers
Increasing estate taxes and eliminating the step-up basis would have serious consequences for American family farmers and ranchers. More Information
- Statement for the Record – Hearing on Funding and Financing Options to Bolster American Infrastructure, Senate Finance Committee
RLI Builds the Case for the Value of Like Kind Exchanges
President Biden has proposed eliminating 1031 like-kind exchanges for gains over $500,000 to help fund his American Families Plan. The REALTORS® Land Institute and the National Association of REALTORS® oppose any reform to this provision and have been working to educate Congress about the value these exchanges bring to the real estate sector and the economy as a whole. More Information
Articles by RLI Member Dan Wagner, Inland Real Estate:
Use this form to tell NAR about how you used 1031 to bring development and economic benefit to your community. Your stories will help put a human face on a critical issue for commercial real estate.
RLI Seeks Clarity on Final WOTUS rule
The REALTORS® Land Institute and National Association of REALTORS® support the review of the WOTUS rule as laid out by President Trump’s Executive Order last year to ensure that both private property rights and clean waterways are protected. More information.
Using Drones for Commercial Purposes is a Reality
The FAA small drone rule became effective August 29, 2016 and regulates how drones are integrated into the national airspace. The rule is a positive step forward in helping RLI members use drones in their businesses. More information.
RLI Looks for Broad Reform of the ESA
The definition and interpretation of the Waters of the US rule has been changed significantly by the last two administrations, creating confusion in which waters are under federal regulation. As President Biden has ordered all federal agencies to review all federal regulations, the likelihood that the EPA will review the current WOTUS rule is high. RLI believes that any rule should make clear federal and state jurisdiction, should protect waterways, and should be able to implemented clearly and without confusion. More information.