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The Realtors® Land Institute Applauds The New WOTUS Rule

January 23, 2020 (Chicago) – The REALTORS® Land Institute applauds the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers for replacing the 2015 Clean Water Act, also known as Waters of The U.S. (WOTUS), with a new Clean Water/WOTUS rule that provides much-needed and long-awaited regulatory certainty for landowners nationwide.

The new rule brings clarity to which level of government – federal or state – oversees land that is usually dry but may take on water depending on weather. The new rule does not change who oversees permanent waterways, such as lakes, rivers, streams and other bodies that always or usually contain water. However, it does make clear that usually dry areas, like Prior Converted Crop (PCC) land, should not be considered federal waters and will remain excluded from their jurisdiction.

The 2020 National President of the REALTORS® Land Institute Kyle Hansen, ALC, responded to the news with the following comment, “The REALTORS® Land Institute and National Association of REALTORS® have long been strong supporters of the review and repeal of the WOTUS rule so that clarifications like this could be made to ensure that both private property rights and clean waterways are protected. This is a big win for landowners across the country, and a perfect reminder of the importance of using a qualified agent to help you navigate both the local and federal regulations that can come with conducting a land transaction.”

About the Realtors® Land Institute
The Realtors® Land Institute, The Voice of Land, continually strives to maintain its status as the acknowledged leader for all matters pertaining to the land real estate profession. The Realtors® Land Institute provides the expertise, camaraderie, and valuable resources that are the foundation for all land real estate professionals to become the best in the business. For more information, visit rliland.com or call 800.441.5263.

For additional information, please contact:
Jessa Friedrich, MBA, Marketing Manager
800-441-5263 | jfriedrich@realtors.org

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Repeal Of WOTUS Rule Finalized

The US Environmental Protection Agency and the Army Corps of Engineers has announced they have finalized the repeal of the controversial WOTUS Rule. This move will provide much-needed and long-awaited regulatory certainty for landowners nationwide. The revocation of the rule was announced via Facebook Live by U.S. Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, and Assistant Secretary of the Army for Civil Works, R.D. James, in Washington, D.C.

“Repealing the rule is a major win for American agriculture,” noted U.S. Secretary of Agriculture Sonny Perdue, in remarks he made at the presentation. “Farmers and ranchers are exceptional stewards of the land, taking great care to preserve it for generations to come. President Trump is making good on his promise to reduce burdensome regulations to free our producers,” he added.

According to the EPA news release, the 2015 rule:

  • Did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress and reflected in Supreme Court cases.
  • Failed to adequately recognize, preserve, and protect the primary responsibilities and rights of states to manage their own land and water resources.
  • Approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress.
  • Suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 Rule’s distance-based limitations.

“With this final repeal, the agencies will implement the pre-2015 regulations, which are currently in place in more than half of the states, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice,” the news release stated.

The REALTORS® Land Institute and National Association of REALTORS® has been a strong supporter of the review and repeal of the WOTUS Rule, as laid out by President Trump’s Executive Order, to ensure that both private property rights and clean waterways are protected.

Related Articles

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WOTUS Rule Sees Revival in Twenty-six States

The controversial Waters of the US (WOTUS) Rule is being re-implemented in 26 states after a federal judge’s ruling that the EPA and Army Corps of Engineers improperly suspended it. “U.S. District Judge David Norton in South Carolina agreed with environmental groups that the agencies failed to follow the public-comment requirements of the Administrative Procedures Act in implementing a suspension rule this year that was intended to delay enforcement of the 2015 rule. The APA requires agencies to take public comment on regulatory actions before implementing them,” stated a recent article on AgWeek.

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 to ensure that both private property rights and clean waterways are protected.

States Under Jurisdiction of WOTUS as of 9.20.2018

This image represents the most current information available as of September 20, 2018.

RLI Joins Coalition to Protect Prior Converted Cropland (PCC)

The RLI Board of Directors recently approved the Governmental Affairs Committee request to participate in a broad industry-based coalition to ensure that prior converted cropland (PCC) exclusions are retained in the revision of WOTUS rules. PCC are areas that were converted from wetland to non-wetlands for the purposes of agricultural commodity prior to December 1985 and should not be subjected to WOTUS rules. RLI is joining the American Farm Bureau Federation, National Cattlemen’s Beef Association, National Corn Growers Association, National Cotton Council, and many others to protect the PCC exclusions.

Repeal & Replace WOTUS: Two Steps Forward, One Step Back

Efforts to repeal and replace the Waters of the US (WOTUS) rule are now complicated by a recent supreme court decision. In a 9-0 unanimous opinion on January 22, “the Supreme Court found that while it may not be the most efficient use of judicial resources, there was no question in the law about where challenges to the Clean Water Rule belong,” reads an article on the subject by E&E News.  The federal government, who argues that the rule should not be interpreted literally but figuratively, is seeing this as setback to their hopes of repealing and replacing the rule at a national level.

The article continues to explain that “The choice of court — district or appeals — is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings. District courts are also more tilted toward overturning government actions.”

“Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts,” Justice Sonia Sotomayor wrote in the opinion.

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.

Read more on this topic here.

RLI Lands Five Legislative Victories in 2017: Inside The Beltway

As the New Year begins, I wanted to use this edition of “Inside the Beltway” to share some successes that RLI had in 2017.

Of, course these victories would not have been possible without the hard work and active engagement of RLI Members with their members of Congress through phone calls, emails, or in-district meetings. These activities make a difference and these five victories are a testament to their civic participation and perseverance.

Greater Awareness on the Value of 1031 

As the battle for tax reform and the possible reform or elimination of 1031s heated up in 2017, RLI members became the trusted source of information for Members of Congress and their staff for data on how 1031s add value to the economy. Turnover in Congress among Members and staff is constant and RLI members did an outstanding job communicating with Congressional offices about how 1031s add value to real estate in their district. While 1031s for real estate are safe as I write this column in November, 2017, it is critical that RLI members continue to reach out to Members of Congress and staff to make sure their voices are heard and 1031s are preserved.

The WOTUS Rule is Rolled Back

The Obama Administration finalized the Clean Water Rule (AKA the Waters of the U.S. Rule) in 2015.  Although the WOTUS rule was never implemented, due to a judicial stay, the damage of this rule would have been far-reaching. This vastly overreaching rule would have hindered economic development in rural and urban areas, tied up farmers, ranchers, and others who work the land in rolls and rolls of red tape and bureaucracy, and would have done unfathomable harm to property rights across the country. RLI and a broad coalition of regulated stakeholders were instrumental in raising alarms about the damage this rule could do to the country’s economy. As a result, one of the first Executive Orders President Trump signed began the process for withdrawing this rule and developing a common-sense and workable definition of “Waters of the U.S.”, one that will provide the clarity needed to encourage economic development and protect our critical water resources.

Drones Take to the Sky

The first call I ever received about using drones for real estate was in 2010 from Florida RLI Member Dean Saunders, ALC, who asked me the seemingly innocent question: “Can I use a drone to take pictures of some land I am selling?” At that time, after doing a little digging on the FAA website, I determined the answer was, unfortunately for Dean, “No.” The drone landscape has changed dramatically since then. Because of consumer desire and market need for innovative technology, RLI Members pushed the FAA to allow the use of drones for commercial purposes. FAA regulations, which were finalized in late 2016, were then implemented and enforced in 2017, unleashing a torrent of market creativity. Now, drones are a regular part of the American “airscape” partly because of RLI Members insistence that this technology can be used safely and can be an important part of selling land, thereby adding value to the real estate economy.

Reforms of the ESA Continue

There was good news on Sage Grouse as well as broader reform of the Endangered Species Act (ESA). While the Obama Administration decided to not list the Sage Grouse as endangered, they did withdraw 10 million acres of public land from being used for any economic activity such as mining or timbering, claiming this land was critical habitat for the Sage Grouse. In July, President Trump reversed this withdrawal through executive order.

On the broader issue of ESA reform, Congress has — for the first time in several years — moved forward with several bills that would enhance transparency, accountability of the ESA and improve the cost/benefit analysis during the listing process. More “rifle shot” legislative reforms are on the way.

The Deregulatory Steamroller Continues 

According to the Chamber of Commerce, President Trump has issued 29 executive actions to reduce regulatory requirements. In response, executive-branch agencies have issued 100 additional directives that either knock down regulations or begin a process to eliminate or shrink them.

The chamber’s count also lists almost 50 pieces of legislation that have been introduced or begun moving through Congress. And that count doesn’t include perhaps the most aggressive step the Republican Congress has taken: It has pioneered the use of a little-known 1996 law, the Congressional Review Act, which allows lawmakers to repeal executive-branch regulations within 60 days after they are finalized. Using that law, Congress has passed, and Mr. Trump has signed, legislation overturning 14 regulations promulgated by President Obama’s administration in its final days.

While unwinding regulations takes time, these are very consequential actions with huge benefits for the private sector and private development, and I expect these actions to continue.

This article originally appeared in the 2018 Winter Terra Firma Magazine, the official publication of the REALTORS® Land Institute.

 

About the author: In his position with the National Association of REALTORS®, Russell Riggs serves as the RLI’s Government Affairs Liaison in Washington, D.C., conducting advocacy on a variety of federal issues related to land.

Two-Year Delay on WOTUS Rule Proposed

November 21 – In an effort to further ensure the implementation of the 2015 Clean Water Act, also known as Waters of the US (WOTUS Rule), the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) have proposed delaying the rule until 2020. “Contrary to prior Supreme Court decisions, the Environmental Protection Agency (EPA) has proposed to “clarify” which water bodies are ‘U.S. waters’ and therefore subject to Clean Water Act regulations,” reads the National Association of REALTORS® website.

According to the agencies, postponing the WOTUS Rule will provide regulatory certainty while the agencies finish the process of repealing and replacing the WOTUS rule, which is currently underway. See our July 27, 2017 blog post for a more detailed explanation of the repeal and replacement process. The EPA and Corps will accept comments for up to 21 days after publication in the Federal Register. Read more.

See what other legislative issues are on the REALTORS® Land Institute’s radar on their Advocacy page.

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EPA and the Corps Announce Opportunities for Public Input on WOTUS

On August 25, the US EPA and the Corps today announced a series of teleconferences, one in-person meeting, and other opportunities for public input on Waters of the US (WOTUS) this fall. “The Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) will hold ten teleconferences to hear from stakeholders their recommendations to revise the definition of “Waters of the United States” under the Clean Water Act (CWA),” the announcement starts. “Both EPA and the Corps are aware that the scope of [Clean Water Act] jurisdiction is of intense interest to a broad array of stakeholders and therefore want to provide time for broad pre-proposal input,” the notice states. View the full announcement here.

The Realtors® Land Institute (RLI) stands behind the US EPA’s decision yesterday to move forward repealing the controversial Clean Water rule which was put in place in 2015. RLI has long advocated that withdrawing WOTUS would have a beneficial impact on the real estate sector, especially land real estate. The organization hopes to see the review of the rule eliminate the need for costly and time-consuming permits on waters that were previously unregulated by the federal government.

RLI encourages its members and landowners across the country to participate in the comment period during phase one, which is implementing a rule to re-codify the regulation that was in place prior to 2015. This comment period is currently open through September 27, 2017.

RLI also encourages participation in the series of teleconferences that will be held to better define the scope of CWA jurisdiction. The teleconferences will be held on a weekly basis beginning September 19, 2017. For a full schedule of webinars and ways to participate, please see the full announcement.

Proposal Released to Rescind the WOTUS Rule

“Fulfilling a portion of an executive order by President Donald Trump, the EPA and U.S. Army Corps of Engineers have released a proposal to rescind the Waters of the United States (WOTUS) rule that expanded federal jurisdiction under the Clean Water Act.

The proposal published in the Federal Register on Thursday, July 28 would nix the 2015 WOTUS rule and reinstate the definition of the streams and wetlands subject to federal oversight under the act that existed prior to its finalization.” Read more from the NAR article.