Blog Ohio Real Estate Law / 07.13.2015

Final Rule Issued Redefining “Waters of the United States”

The final Clean Water Rule regarding the new definition of “Waters of the U.S.” (WOTUS) was published in the Federal Register on Monday, June 29, 2015. The effective date for the rule is August 28, 2015. The rule redefines what water features will fall under the joint jurisdiction of the U.S. EPA and the U.S. Army Corps of Engineers.

The EPA received more than 1 million public comments regarding this rule and has issues a response to the comments that totals more than 8,000 pages. (Your tax dollars at work people. Has anyone managed to read this response? Lunch is on me if you can prove to my satisfaction that you managed to wade through it all.)

Several legal challenges have already been filed against the new rule by approximately 27 state attorney generals. The reason this rule is such a hot button issue for state and local governments is jurisdictional. If a water features is held to fall under the definition of WOTUS, then it usurps the jurisdiction of state and local governments.

While the federal regulators claim this new definition provides for greater clarity, many others disagree. Links to analyses of the new rule are below.

Understandably, the states and counties are upset that they may be losing control to the federal government.  As a citizen, I’m concerned as well. While state and local governments can trample on our rights as easily as the federal government, they still tend overall to be more responsive to the views and concerns of their constituents than someone sitting in an office in Washington, DC would be. Also, what may work in one state, may not be the best solution in another state. Keeping control more devolved allows for rules to be developed that are more responsive to the needs and issues of that state, as opposed to the one size fits all approach of most federal regulations.

Analysisby The Associated General Contractors of America

Fact Sheet by the National Association of Counties

Articlepublished by the National Association of Realtors

While both the U.S. House of Representatives and the U.S. Senate has either passed or is considering legislation to address the rule and potentially restart the rulemaking process, President Obama has indicated he would veto any such bill.
The end result of this new rule will be increased federal involvement in the regulation of land use.

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