February 26, 2024
States' Summary Judgement in WOTUS Case Argues New Rule is Procedurally Defective and Violates the Tenth Amendment
The Waters Coalition's summary judgment brief in a Waters of the U.S. case asks the North Dakota federal court to hold the new WOTUS Rule — which extends to all water that is even remotely connected to navigable waters — to be unlawful under the Clean Water Act and Constitution.
The States’ summary judgement makes additional arguments that the Rule is:
- Procedurally defective (inadequate notice and comment, and violates the Regulatory Flexibility Act)
- Its cost-benefit analysis and use of environmental justice criteria are improper, and that it violates the Tenth Amendment.
The Coalition asks the court to send the rule back to EPA and the Corps for a rewrite that would narrow the scope of federal permitting jurisdiction over water and wetlands.
Next Steps: The EPA and its intervenors will file their cross-motion for Summary Judgement and response on April 26. The Coalition will respond by June 25. In the meantime the new rule will remain in place.
December 12, 2023
WOTUS Case Moves Forward in North Dakota Court, REALTORS® Land Institute Joins as Plaintiff
A North Dakota judge granted the motion to intervene as plaintiffs in a Waters of the United States (WOTUS) case before the court. The REALTORS® Land Institute is a named plaintiff in the case along with several other organizations. We will now file the intervenors’ complaint.
Read the Order Granting Motion to Intervene.
Schedule: The parties have agreed to propose to the courts that the Coalition and State plaintiffs’ 30-page summary judgment motions will be due on February 12. If the proposed schedule holds, briefing will be complete on July 11. We expect oral arguments over the summer with a decision by the fall.
RLI Member Action: As plaintiffs we have the opportunity to file additional declarations with our summary judgment motions in early February. If you hear of instances of overreach by the Corps or EPA between now and then, affecting a member willing to file a declaration, or of member projects being affected by uncertainty over the scope of jurisdiction, please contact Kat Szymanski at kszymanski@rliland.com or Aubrie Kobernus at akobernus@rliland.com.
August 2023
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
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.
May 2023
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.
March 2023
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.
February 2023
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.
December 2022
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.