Proposal Released to Rescind the WOTUS Rule

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“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.

Washington D.C. land real estate

The Four New Realities of Washington, D.C.

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Usually I give a brief update on land real estate public policy issues of interest to REALTORS® Land Institute (RLI) land professionals and the landowners they serve.

However, the election of Donald Trump to the highest elected political office in the land has scrambled the usual political dynamics of Washington, D.C. – the rule-book has been thrown out and we are in uncharted waters.

Given the unusual political environment we find ourselves in today, I thought it might be helpful to identify some of the factors that now make up the new reality of Washington, D.C., and how these factors might impact land real estate public policy issues that land agents and landowners care about. So here they are, the four new realities of Washington, D.C.:

  1. New Administration. The Trump Administration was elected to achieve several big priorities: immigration reform; comprehensive tax reform; construct a wall on the southern border; and repeal and replace Obamacare. Smaller items on the agenda include reforming existing trade agreements and repealing Dodd-Frank. The Trump Administration is still finding its way on how to achieve its policy priorities, but eventually, they will find their footing. When they do, tax reform could be the issue they turn to for a legislative win.  Of all of these issues, tax reform could pose a threat to RLI’s most important legislative land real estate public policy issue: preserving the 1031 Like-Kind Tax Exchange for landowners and investors.
  2. New Congress. While the Republicans have captured both the House and Senate, they did so with small majorities and increased ideological polarization. Practically speaking, this is a recipe for legislative gridlock as congressional leaders discover it is difficult, if not impossible, to cobble together enough members to pass legislation. However, this could work in RLI’s favor.  While legislative stagnation means that some bills RLI members might support don’t get passed, it also means that other bills, such as tax reform that harm 1031s, might never see the light of day.
  3. Executive Order (EO) Governance. A recent trend for presidents is to issue Executive Orders when they are unable to achieve their policy agenda in Congress. This occurred quite often during both the Clinton and Bush Presidencies, then, accelerated quickly during Obama’s presidency. Trump has used them even more frequently to achieve early momentum on some of his key policy goals. While EOs are limited in scope because they only impact activities of the federal government and not broader corporate or social institutions, they can be used in a targeted way to achieve a specific result.  One recent EO directed the EPA to begin the process to rescind and replace the controversial and damaging Waters of the U.S. (WOTUS) regulation. If Trump does nothing else as President, rescinding WOTUS will help land owners and real estate agents more than anything else.
  4. De-regulatory Environment. President Trump has made it clear to all the federal regulatory agencies that they need to establish a process for reviewing and rescinding unnecessary or antiquated regulations. This has also been the subject of several EOs as well. While deregulation of the private sector is an important goal, this strategy has limitations as well.  First, the process for repealing a regulation is cumbersome and time-consuming.  Second, these only apply to regulations that originated in the federal agencies.  For example, the WOTUS and the Clean Power Plan regulations were initiated by the Environmental Protection Agency (EPA), without any statutory direction from Congress, so they can only be repealed by the EPA.  Regulations implemented under the direction of Dodd-Frank or the Affordable Care Act were initiated under the congressional authority, so they can only be repealed or modified by Congress.  Deregulation will unburden land real estate agents and their clients as well as help spur innovation and economic development.

This article originally appeared in the 2017 Summer Terra Firma Magazine, the official publication of the REALTORS® Land Institute.

Riggs, Russell - NAR Government AffairsAbout 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.

waters of the US (WOTUS)

Repeal of WOTUS Rule Moves Forward

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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.

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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

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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.”

US Army Corps of Engineers Proposes New and Revised Nationwide Permits

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Two new and fifty revised Nationwide Permits have been submitted by the US Army Corps of Engineers under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act. The National Association of REALTORS® stated that “The two new permits authorize impacts related to the removal of low-head dams and construction and maintenance of living shorelines for shore erosion control. The permit revisions affect a variety of activities, including residential, commercial, and industrial development; flood control; storm water management; mining; and agriculture and aquaculture”.  Read more.

Supreme Court upholds landowner rights in Waters of the US Case

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The Supreme Court’s ruling in United States Army Corps of Engineers v. Hawkes Co., Inc., set a precedent that landowners may challenge the Corps’ jurisdictional determination specifying that a piece of property contains a “water of the United States.” Read more.

Why the “Waters of the U.S.” case matters

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Farmers, some whose families have owned and managed their property for generations, are now facing difficulties managing their own land.  The government’s ability to claim a property falls under Waters of the US means the owner may be required to get a federal permit before they can do common tasks like plowing their own field. The looming U.S. Supreme Court decision on U.S. Army Corps of Engineers v. Hawkes Co. will have a big impact on the land owners’ rights regarding WOTUS. Read more.