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Environmental Protection Agency and Army propose a new definition of the WOTUS

 

On December 11, the U.S. Environmental Protection Agency (EPA) and the Army proposed a new definition of the Waters of the United States rule (WOTUS). This proposal is the final step in the process to review and revise the controversial rule following President Trump’s 2017 “Restoring the Rule of Law, Federalism, and Economic Growth by Renewing the ‘Waters of the United States’ Rule” Executive Order.

 

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

wotus proposal epa signing december 11

RLI Past President Bob Turner, ALC, attended the official signing. “We will finally have clarification of the rules, we will be able to easily determine what is Federal waters and what is not without having to hire engineers, consultants and lawyers to get a determination,” said Turner. “This will allow landowners, farmers, developers, home builders, and conservationist to own, improve, develop, maintain and pass on to future generations with a clear, understandable and implementable definition.” Read more.

Land and Congress: Just The Facts

It seems like the more news there is, the harder it is to find out the facts. Important news about land legislative issues, such as tariffs and WOTUS, can get lost in a sea of opinion pieces. Let’s take a look at the simple facts surrounding five of the most pressing issues in the land industry.

Waters of the United States (WOTUS) rule

WOTUS is one of the most controversial land legislative issues in the land industry. This law was written to clarify water resource management but sparked a debate about property rights.

“Many (wetlands) are already covered under the Clean Water Act,” said Russell Riggs, RLI’s Government Affairs Liaison for  the National Association Of REALTORS® (NAR) and Senior Regulatory Representative for NAR, in an interview with REALTOR® magazine. “This expands it beyond navigable waterways to little streams, ditches, and isolated wetlands that were never really intended to be covered by the Clean Water Act. WOTUS would sweep in thousands of smaller water bodies under the authority of the Environmental Protection Agency and now you’re talking about all kinds of different permitting, regulatory burdens, as well as infringements of property rights.”

Many land organizations, including RLI, opposed the rule and have been avid advocates for its repeal and reform. In response to the land industry, the Trump Administration put the rule under review. At time of publication, WOTUS has been revived in 26 states.

Russell Riggs will be speaking on key land legislative issues at the 2019 National Land Conference in Albuquerque, NM, giving an update on the latest legislation affecting the land real estate industry.

Farm Bill

On September 30th, 2018, the 2014 Farm Bill expired. The Farm Bill expired because Congress couldn’t reach an agreement on the many influential land legislative issues that this bill governs, such as:

This bill covers dozens of incredibly important and complex land legislative issues. Changes made to this bill will impact every corner of the land industry. Landowners, investors, and consumers will all be impacted. It’s important that your representatives in D.C. hear what you have to say about the Farm Bill. RLI has a strong voice in D.C., thanks to our member-driven Government Affairs Committee and by keeping members informed on the latest land laws in blog posts, social media, and D.C. Updates.

Tariffs

Tariffs are a tax a country puts on a product made abroad. The intention is to motivate Americans to buy local products at a cheaper price. At the time of publication, there is a ten percent tariff adding up to $200 billion on Chinese imports. President Trump is expected to raise tariffs in the future.

In retaliation, China imposed tariffs on American products, including soybeans, pork, milk, fruit, and many other crops. Soybeans, in particular, have struggled. The Chinese tariffs have driven soybeans prices down and some soybean farmers are struggling to pay the bills.

“Farmers see that pain right now,” said American Soybean Association CEO Ryan Findlay in an interview on CNBC. “You have to have the prices to pay the bill — and the prices aren’t there right now.”

During a record production year, many farmers are storing soybeans in the hopes that the trade war will soon end.  The long-term impacts, good or bad, are unknown right now.

Bailout

To help ease the economic stress of the ongoing tariff war, the USDA authorized a $12 billion bailout plan for farmers.

Farmers who met the criteria would receive incremental payments from USDA programs. The first $6 billion was distributed in late August. Additionally, the USDA’s Agricultural Marketing Service (AMS) set up the Food Purchase and Distribution program to buy $1.2 billion in American goods that were impacted by the tariffs.

Endangered Species Act

In an 8-0 vote, the Supreme Court ruled to limit which habitats can be protected under the Endangered Species Act. The central point of the debate was if lands where endangered species weren’t currently living, but might one day, protected under the law.

“Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat,” the chief justice said highlighting how the scope of the law as written now is limited. “Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the secretary finds the area essential for the conservation of the species, [the law] does not authorize the secretary to designate the area as critical habitat unless it is also habitat for the species.”

Staying up to date on land news is tricky, especially when so many key land legislative issues are always being updated or debated. We hope this article offered a no-nonsense look at the current state of several pressing land laws. If you’d like to get more involved with the Advocacy side of RLI, consider applying for our Governmental Affairs Committee and make sure to check back regularly to our DC Updates page for the latest news about the latest legislative issues affecting the land industry. Remember – your voice deserves to be heard in Congress!

About the Author: Laura Barker is the Membership and Communications Specialist for the REALTORS® Land Institute. She graduated from Clark University in May 2017 and has been with RLI since October 2017.

wotus

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.

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.

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.

waters of the US (WOTUS)

Repeal of WOTUS Rule Moves Forward

June 28, 2017 (Chicago, Ill.) – The Realtors Land Institute (RLI) stands behind the U.S. EPA’s decision yesterday to move forward repealing the controversial Clean Water rule, also known as Waters of the U.S. (WOTUS), which was put in place in 2015. The move would take the legislation back to what it was prior to 2015 while the agencies involved reevaluate the definition of what constitutes as ‘Waters of the U.S’.

All of this follows President Donald Trump’s executive order on February 28, 2017, which called upon the EPA to review the rule. EPA Administrator Scott Pruitt stated that the intent of the review is to “[Take] significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses.”

The Realtors Land Institute 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 looks forward to working with the Administration, EPA Administrator Scott Pruitt and the Assistant Secretary of the Army for Civil Works, as they move forward to develop common-sense solutions to protecting our nation’s water resources while balancing the interests of land real estate and communities nationwide,” said Brandon Rogillio, ALC, 2017 Realtors Land Institute National President.

Learn more about this issue and other legislative issues important to land real estate owners and agents on the Realtors Land Institute’s Advocacy page.

REALTORS Land Institute Logo

 

 

 

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. RLI endeavors to remain the essential membership organization for the extraordinary real estate professionals who broker, lease, sell, develop, and manage our most precious resource: the land. 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.

Senate GOP seeks swift action against ‘ominous’ regulation

Republicans on the Senate Environment and Public Works Committee today released a 38-page report accusing U.S. EPA and the Army Corps of Engineers of advancing “very broad claims of jurisdiction” in Clean Water Act disputes.  The report also warned that a recent Supreme Court win for landowners in a case about who can challenge certain decisions about water permits in court could become “moot” if Congress does not act to withdraw the Clean Water Rule.

The Obama administration’s rule, also known as Waters of the United States, defines which waterways and wetlands receive automatic protections under the Clean Water Act. In October, the 6th U.S. Circuit Court of Appeals put the rule on hold nationwide while litigation plays out .  Republican members on the EPW Committee and foes of the rule have previously accused EPA and the corps of flouting the court’s order by asserting broad jurisdiction over the nation’s waterways.

The report argues that the agencies are taking a narrow view of exemptions for farming, highlighting several case studies of jurisdictional battles taking place across the country.

“The reach of federal authority claimed by EPA and the Corps is, in the words of Justice Kennedy, ‘ominous,'” the majority’s report says. “That ominous authority would be codified in the WOTUS rule. As a result, if that rule goes into effect, the hard-won right to challenge Corps jurisdictional determinations will become meaningless.”

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Obama Administration Loses Major Supreme Court Water Case

Supreme Court justices today handed the Obama administration a big loss in a high-stakes clean water case. The court ruled unanimously against the government in a case deciding when landowners can challenge certain decisions about water permits in court.

The case, Army Corps of Engineers v. Hawkes Co. Inc., centers on a North Dakota peat mining company that wants to challenge a government determination that its mining plans would require costly Clean Water Act permits. The broader issue in the case was whether the Army Corps of Engineers’ “jurisdictional determinations” about whether permits are required represent “final agency actions” that can be challenged in court. Property rights advocates and industry contend that landowners should be able to contest those decisions in court; the government disagrees. 

Chief Justice John Roberts wrote the court’s opinion, finding that a jurisdictional determination approved by the corps is indeed a “final agency action” that is subject to judicial review. Justice Anthony Kennedy filed a concurring opinion, joined by Justices Clarence Thomas and Samuel Alito. Justice Elena Kagan filed a concurring opinion, and Justice Ruth Bader Ginsburg filed an opinion concurring in part and concurring with the judgment. The justices seemed skeptical of the government’s position when they heard oral arguments in the case in March.

It’s the latest wetlands case, the Obama administration has lost in recent years. In 2012, the high court ruled 9-0 against the government in another important case where property owners sought to challenge U.S. EPA enforcement actions in court.

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