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EPA Case Is Owner Rights Opportunity

The EPA wetlands case before the U.S. Supreme Court this week involves a narrow due process issue but for NAR the case provides an opportunity for real estate interests to press their property-rights effort on behalf of property owners.

In the wetlands case, EPA stopped a couple from building their home in an already developed subdivision out of a concern that the property contains a wetlands. The couple wants to have that question reviewed—that is, is there or isn’t there a wetlands on the property? But EPA says that question can’t even be looked at until the couple first restores the land to the way it was before try started to build and then monitor the property for three years.

For the couple, that directive amounts to a violation of their due process rights. NAR agrees.

But NAR also sees an opportunity in the case, because from its point of view, EPA’s action is an example of the kind of regulatory overreach that’s been a problem with the agency since the Clean Water Act was enacted in 1972. That law very clearly says EPA and the U.S. Corps of Engineers have Clean Water Act jurisdiction over navigable waters. But for years, the agencies have been using guidance documents to expand that definition to include other types of water. In the case before the Supreme Court this week, the property doesn’t even contain water except for periodically throughout the year. For NAR, should EPA even be regulating this piece of property?

In the video above, NAR analyst Russell Riggs explains what’s at stake in the case.

January 10 update. Read the Washington Post’s report on the Supreme Court’s hearing, called “Justices are skeptical of EPA actions in land case.”

Read the brief filed by NAR and other groups.

Robert Freedman

Robert Freedman is manager of multimedia communications for the NATIONAL ASSOCIATION OF REALTORS®. He can be reached at rfreedman@realtors.org.

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Comments
  1. Steve

    The problem is constructive notice. I would guess the buyers likely did not have any constructive notice in there title documents that this situation existed. This restriction is placed by the EPA and should be disclosed in a title report. After all it does affect the use and value of the property like a CCR or other restriction. The agency and I should say any agency that places a restriction of this sort should be required to record that notification as a property restriction against the legal in the county where the property resides and not just on a state map somewhere.

    The long accepted normal method of notifying a buyer of a restriction is his on his title policy. In our state of Washington title reports only cover the county they are issued in.
    So we have a lack of communication problem.

    I have experienced a similar problem on a property which I bought for doing a housing development. After much expense in engineering I filed an application for my project with the city only to be notified the day before approval by a State agency (Department of Archeology and Historic preservation) that to my surprise there was a supposed historic cemetery on the site. This of course stopped the project in its tracks.

    My contention is this. If the state agency knows where these sites are and can file a report when a SEPA request is made then they also have the data on hand and the ability to record that information, and should be compelled by the states or federal law to record it in the local Counties where a normal title report would pick up the information and effectively give constructive notice to a buyer. Its basic consumer protection.

    Much effort has been extended to do seller disclosure statements in our state. These are not the place for this type of information as sometimes the sellers don’t know about any restrictions. If it is recorded against the property it would be picked up on the policy and everyone will have a heads up.

    As a real estate agent I would think it would be in the best interest for Realtors to get behind a national title notification policy requirement for these agencies. After all you know who is going to be sued if you happen to sell a piece of land to someone and this situation shows up.

    Steve

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