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OLYMPUS DIGITAL CAMERAThe Environmental Protection Agency (EPA) and the Corps of Engineers (Corps) recently finalized a controversial regulation known as the Waters of the U.S. Clean Water Rule. This Clean Water Rule fundamentally changes what waters of the U.S. are regulated under the Clean Water Act. The rule also has the possibility of sweeping in other waters on a “case-by-case” basis, depending on the determination of federal regulators.

More importantly, property owners still have a lack of clarity about what is needed or required to not be regulated by these expansive changes.

For that reason, NAR continues to pursue legislative opportunities that would require the EPA to withdraw the rule and start from scratch.

The three main areas of the rule include:

• Increase in jurisdiction over ephemeral streams – The tributary definition relies on presence of bed, banks, and ordinary high water mark, which can be seen even in features without ordinary flow. Ephemeral streams, which may flow only for a few hours or days following a rain event, could now be regulated as tributaries.

• New expansive jurisdiction over adjacent waters – The rule allows for jurisdiction over all waters (not just wetlands) based on adjacency. The rule’s expansive definition of “neighboring” also includes FEMA designated floodplains, which allows the agencies to regulate many isolated waters that were not previously regulated.

• Many ditches subject to federal regulation – The broad tributary definition allows for jurisdiction over many ditches as “waters of the U.S.” The ditch exclusions are still narrow, and it will be the responsibility of the property owner to prove that a specific ditch meets the exclusion criteria and should not be regulated.

Legislative Activity

While EPA and the Corps have gone about finalizing the Clean Water Rule, Congress has moved legislation that would require the EPA to withdraw this rule.

  • S. 1140, the Federal Water Quality Protection Act sponsored by Sen. Barrasso (R-WY), passed out of the Senate Environment and Public Works Committee. The bill requires withdrawal of the rule and sets new criteria for what waters should and shouldn’t qualify for Clean Water Act protection.
  • H.R. 1732, the Regulatory Integrity Protection Act sponsored by Rep. Shuster (R-PA), passed out of the House in May. The bill requires the withdrawal of the rule and tells the EPA and the Corps to start from scratch.
  • Congressional Appropriations Committees have passed bills that prohibit the EPA from using any funds in FY 2016 to implement the rule. There is no timeframe yet for moving the Senate bill to the floor. The House bill made it to the floor for a vote, but was withdrawn due to an unrelated controversy.

Advocacy

The Clean Water Rule was one of the August Recess Talking Points for NAR’s Federal Political Coordinators (FPCs). All FPCs scheduled in-district meetings with their Representative or Senator to discuss issues of importance to NAR going into the fall legislative session. This was a great and timely opportunity to make sure Congress knows how important this issue is to NAR members.

Litigation

Several lawsuits have been filed against the EPA and the Clean Water Rule, including one by over 30 state Attorneys General. All the lawsuits seek to have the final rule withdrawn.

NAR, in coalition with other regulated stakeholders, will continue to engage the EPA as they implement and enforce this rule to ensure that federal officials follow the letter of the law and that property rights are protected.

This column is brought to you by the NAR Real Estate Services group.

Russell Riggs is senior policy representative for the National Association of REALTORS®.

For more information, visit www.realtor.org.

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