CLE Update: Upcoming CLE Seminars in Ohio


Continuing Education

As we head into the last few months of 2015, many of us in the State of Ohio have to complete by year end our continuing education requirements for our license. Below are some of the real estate related CLEs scheduled between now and year end.

 
Construction Law — 9/17 in Cleveland; 6.00 CLE hours

Title to Real Estate in Ohio video replay — 10/23, 12/7 in Fairfield; 6.00 CLE hours

Residential Real Estate Transactions and video replay — 11/6 in Lisbon, 11/18 in Columbus, Cleveland, Fairfield and Perrysburg, 12/10 in Celine and Gallipolis, and 12/14 in Cleveland, Columbus, Akron and Perrysburg; 6.00 CLE hours

Oil and Gas Update — 11/20 in Columbus, Cleveland, Akron and Wooster; 6.00 CLE hours

Real Property Institute — 12/10 in Columbus and Cleveland; 6.00 CLE hours

 
Commercial & Residential Landlord-Tenant Law — 9/25 in Cleveland and 10/23 in Dayton; 6.00 CLE hours


Retail, Office and Restaurant Leases: Key Provisions and Warranties — 9/1 in Cincinnati and 9/16 in Cleveland; 6.00 CLE hours

BOOT CAMP: Foreclosure and Loan Workout Procedures — 9/2 in Independence and 9/16 in Worthington; 6.00 CLE hours

Land Use Law: Current Issues in Subdivision, Annexation and Zoning — 10/1 in Cincinnati; 6.00 CLE hours

Top Title Defects – Cured — 11/2 in Dayton and 11/3 in Cincinnati; 6.00 CLE hours

Title Law from Start to Finish — 12/3 in Independence; 6.00 CLE hours

Practical Guide to Zoning and Land Use Law — 12/14 in Worthington; 6.00 CLE hours


Prefer to obtain some of your CLE hours online? Try…



Finally, below are links to the continuing education pages for some of the bar associations in Ohio:








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CHECK MUNICIPAL LAW, BEFORE YOU PROCLAIM OHIO LAW PROVIDES NO DUTY TO REMOVE ICE AND SNOW

It is not surprising that in Ohio, we have a lot of “ice and snow cases”, because… we get a lot of ice and snow. I know, the nerve of me to bring this up in August, but the recent Ohio Court of Claims case, Scolaro v Ohio University (Case No. 2015-00304-August 11, 2015) reminds us that: 1) odds are good that it will snow again in a few months; and 2) there are exceptions to the “no duty to remove natural accumulation of ice and snow, general rule.” 

The leading case of the “no duty to remove natural accumulation of ice and snow general rule” is Brinkman v. Ross, 68 Ohio St.3d 82 (1993). In Brinkman, the Ohio Supreme Court held: the “homeowner has no common-law duty to remove or make less hazardous natural accumulation of ice and snow on private sidewalks or walkways on homeowner's premises, or to warn those who enter upon premises of inherent dangers presented by natural accumulations of ice and snow, regardless of whether the entrant is a social guest or business invitee.”

In the Brinkman case, the Brinkmans were invited to the Ross home during the winter. The Rosses knew that the sidewalk into the house was covered by a sheet of ice, which in turn was covered by snow, but never warned the Brinkmans. While walking on the sidewalk between the driveway and the Ross home, Carol Brinkman slipped on the snow-covered ice and fell, sustaining serious injuries. Ms. Brinkman sued and lost at the trial court stage, but appealed that decision. The court of appeals in Brinkman agreed with the plaintiff who admitted the snow/ice had accumulated naturally, but claimed the Rosses had a duty to disclose the dangerous situation that they knew about. The Ohio Supreme Court reversed the decision of the appellate court on the basis of law, and common sense, as if to say: “Who does not know that snow and ice are slippery?”  Actually, the Ohio Supreme Court put it more eloquently, by stating: “As a matter of law, the guest is charged with sufficient knowledge of the hazards to be required to protect herself against falls."

While the rule of law in Brinkman seems clear, judicial decisions are no different than the seemingly clear wishes of Aladdin’s genie which came with a few “exceptions, provisos and quid pro quos.” The case in Scolaro reiterates the “statutory law exception” to the “no duty to remove snow and ice general rule” in Ohio. Basically, in cases where a municipality or local government has a law requiring snow and ice removal, there is a statutory duty to remove, failing which will render the offender negligent per se (a basic legal principle basically holding that violation of  a criminal law that assesses penalties = negligence).  

In Scolaro, Hannah Scolaro of Akron sued Ohio University in the Ohio Court of Claims after she fell on the ice (on a campus bus-stop sidewalk) and damaged her front teeth, resulting in root canals, crowns and other dental work totaling approximately $3,000. Scolaro claimed the school was negligent for failing to remove snow and ice on its sidewalks, and asked the court to make the school pay for her dental bill. Apparently, other sidewalks on campus had been salted, but not the bus-stop sidewalk.

The Ohio University claimed Scolaro should have been aware of weather hazards and taken better precautions. Legally, the university relied on the Ross decision. Scolaro argued that the school should have done a better job protecting the safety of its students, especially when there is a law requiring them to do so. The Court of Claims agreed with Scolaro. According to the court, “While Ross remains the law in Ohio, there is an exception. Ross is limited in cases where a municipality or local government has enacted a safety statute requiring snow and ice removal. Athens, where OU is located, is one of these municipalities.”

What is the moral of this story? When it snows again, don’t forget the exceptions, provisos and quid pro quos to the no duty to remove accumulations of ice and snow general rule” of Ross v Brinkman. Basically, they are: 1) the statutory law exception of Scolaro v Ohio University; 2) a lease or other contract may create a duty/obligation to remove ice and snow; 3) if you undertake to remove snow/ice, you can be held liable if you do so negligently, or in a way that makes the area more hazardous than it had been without your efforts at snow removal; and 4) you may be held liable for unnatural accumulations of ice which result, for example from the negligent design of a parking lot (See Cain v. McKee Door Sales, 2013-Ohio-4217).







Ohio Court of Appeals Issues "Prescriptive Easement" Decision Addressing "Tacking" and Continuous Use Requirements

The Ohio Court of Appeals, Ninth Judicial District (C.A. No.14CA0022-M, dated August 3, 2015) reversed and remanded a judgment issued by the Medina County Court of Common Pleas (the County Court) regarding whether or not a prescriptive easement has been established.

The plaintiff in the proceeding is Robert R. Rising, Jr. (Mr. Rising), who brought a quiet title action and injunctive proceedings against the Litchfield Board of Township Trustees (Litchfield).  Mr. Rising’s parents owned certain land in Litchfield Township. While their land had access to the main roads, Mr. Rising and his parents before him, often used a strip of land across a neighboring parcel as a cut through for more convenient access to Avon Lake Road (the Driveway).

Litchfield acquired title to the neighboring parcel in 1999 and in 2010 blocked access to the Driveway. Mr. Rising sued Litchfield claiming he had acquired title to access the Driveway via a prescriptive easement. The County Court initially found in favor of Litchfield, holding that Litchfield, as a township, was not subject to adverse possession claims. Mr. Rising appealed and won on that initial issue under a prior Court of Appeals decision (11CA0079-M). The Court of Appeals in that decision held that if the evidence shows the prescriptive easement arose prior to Litchfield’s ownership of the neighboring land then it would have taken title subject to the prescriptive easement. The Court of Appeals also stated that Mr. Rising and his parents were in privity, allowing Mr. Rising to tack the number of years the Driveway was used by his parents if he could establish his parents used the property in the same or similar manner and that the use was continuous, open, notorious and adverse. The case was remanded back to the County Court to make these factual determinations.

The County Court then held that Mr. Rising failed to meet the 21 year continuous use requirement due to a 1 year period in which he was attending college out of town and a 4 year period in which he lived nearby in Grafton, Ohio. These ‘gaps’ was used to find that the adverse use was ‘abandoned’ and therefore defeat Mr. Rising’s ability to tack his current use onto that of this parents. This determination was made despite unrebutted testimony regarding his regular visits during such time period and use of the Driveway by Mr. Rising and his father during such visits. [If you’re coming to the belief that the County Court really seemed to want to help out the township trustees, I can understand. It’s my thought as well.]

The Court of Appeals smacked this down as well. In a previous Ohio Court of Appeals decision (Queen v. Hanna, 4th Dist. Scioto No. 11CA3447, 2012-Ohio-6291, quoting Dunn v. Ransom, 4th Dist. Pike No. 10CA806, 2011-Ohio-4253), the court stated, “The acts of the prescriptive claimant do not need to be daily or constant; rather, occasional use that will fairly indicate an uninterrupted use to the true owner will suffice….Abandonment of the use of the easement may destroy the necessary continuity, but temporary and reasonable breaks in the possession does not have that effect.” Based on the foregoing reasoning, the Court of Appeals found the County Courts decision on the lack of a 21 year continuous use to be in error.

Because the County Court based its decision against Mr. Rising on the lack of 21 years of continuous use, it never addressed the other elements of adverse possession, namely, that the use must be open, notorious and adverse. The Court of Appeals remanded the case back to the County Court to consider whether these additional elements were established by clear and convincing evidence.

Anyone want to take bets on how the County Court decides on these remaining issues? I personally look forward to the next installment of the Court of Appeals decision on this case.
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A Double Bogey for Private Golf Courses in Ohio

The Ohio Golf Course Association’s Policy Statement of Public/Private Competition provides, in pertinent part: “We oppose the development of new, and the expansion of existing government-owned golf facilities that have the potential of displacing business from the private sector”. (See: http://www.buckeyegolf.com/membership).

With golf courses across the country closing at a rate of more than 100 per year, and the recent, “chilly” legislative and judicial climate in Ohio (referred to herein as the “legislative bogey” and the “judicial bogey”), it is easy to understand the association’s opposition.

The “legislative bogey”: A line-item in the 2016-17 Ohio Budget would have given private golf course owners uniform property tax rules, requiring that Ohio’s auditors base golf course tax rates on the income the business generates, period. Currently, such auditors have three ways to evaluate golf courses and other commercial property: compare them with recent sales and similar properties; base the valuation on their highest use; or base the value on the income the property generates. However, the “game changing tax language” was removed from the final budget bill before it left committee.
The “judicial bogey” comes in the form of the recent Ohio Supreme Court decision of Cincinnati v. Testa, Slip Opinion No. 2015-Ohio 1775. The court in Cincinnati v. Testa held that the City of Cincinnati’s contractual arrangement with a for-profit company to manage and operate its public golf courses did not defeat the city’s exemption from property taxes pursuant to Ohio law (OR.C. 5709.08 et seq.); and that such golf courses retain their status as “public property used exclusively for a public purpose”, in spite of such contractual arrangement.

This case was initiated by a complaint from Paul Macke (a private golf-course operator who owns taxable real property in Hamilton County) to the Ohio Tax Commissioner (“Testa”). Macke complained that he had to close one of his courses as a result of increasing expenses (including taxes) and decreasing revenues, based, in part from competition by a nearby city course operated by Golf Management, Inc. (a private, for profit  company). According to Macke, the city-owned course could afford to reduce fees and aggressively compete because they were exempt from taxes, and they should not be exempt because the city course was operated by a private, for-profit entity.

After reviewing Macke’s complaints, the Ohio Tax Commissioner determined that the city’s tax exemption should be revoked and that its golf courses should be subject to real-property tax. The City of Cincinnati appealed to the Board of Tax Appeals (“BTA”), which reversed the commissioner’s determination and allowed the exemption. The tax commissioner then appealed to the Ohio Supreme Court.

The court’s holding in Cincinnati v. Testa was based largely on its interpretation of the statutory provision it deemed most applicable (O.R.C. 5709.121(A)(2)). “Under R.C. 5709.121(A)(2), three elements must be satisfied in order to conclude that the golf courses in this case are used exclusively for a public purpose and are, therefore, entitled to a tax exemption. First, they must be ‘under the direction or control of’ Cincinnati…Second, the property’s use must be ‘in furtherance of or incidental to [Cincinnati’s] public purposes’…Third, the property must be made available to others, not with a view to profit.”

The court deemed the first element satisfied by reiterating the evidence demonstrating extensive direction/control by Cincinnati such as Cincinnati’s authority over rate-setting, approval of marketing, and hours of operation and Cincinnati’s daily to weekly course inspections. The court determined the second element was easily met because the city’s golf courses were used to make golfing available to the general public.

The court reasoned that the third element of the statute was satisfied because Golf Management’s revenues were incidental compared to the fees the city earns from golf operations (including greens fees and cart rental fees, which the city reinvests into its golf facilities). Golf Management’s fees which were largely management fees (totaling $165,000/yr) and a food/beverage minimum (approx. $220,000) paled in comparison to the city’s nearly $6.2 million a year from 2007 to 2012 for golf course operations. The court also pointed out that “over the long haul, the municipal golf fund can fairly be characterized as operating on a close-to-break-even basis.” While the city’s revenues averaged nearly $6.2 million a year, the average expenses were over $6.3 million a year, for an average loss of approximately $150,000 per year for the same six-year period.

The Supreme Court of Ohio in Cincinnati v. Testa bolstered its reasoning by precedent (prior court decisions on point), such as: Carney v. Ohio Turnpike Comm., 167 Ohio St. 273 (1958); whereby a private corporation selling food, drink, gasoline, and other goods at a state owned turnpike plaza did not defeat an exemption for public property operated exclusively for a public purpose. As stated by the court in Testa v Cincinnati, “The focus in those cases was not on the revenue realized as a result of the challenged uses, but on the incidental character of the private use in relation to the public purpose.”


Understandably, private golf course owners are not happy. As claimed by the tax commissioner in Cincinnati v Testa, “The city has used the ‘competitive advantage’ of the tax exemption to harm private competition.” On the other hand, perhaps this is a case of effect vs. intent.  While the effect of the tax exemption is harmful to private golf course owners, is that effect truly what the public entities intend to achieve? The evidence does not seem to support such intent. The testimony in this case established that Cincinnati refused a request by Golf Management to increase greens fees concluding that a rate increase would harm Cincinnati’s public mission. Exemption from taxes means lower costs, the ability to charge lower greens fees, and accordingly, the ability to secure a greater access to everyone. These actions, according to the court “constitute a part of [the city’s] public mission not a refutation of it.” 

LEED Remains the Standard in Green Building

The following article was written by Alex Jones, a summer associate with Kohrman Jackson and Krantz.

Green building has been a growing industry for the past few decades, and the Leadership in Energy and Environmental Design, also known as LEED, remains a dominant force. As of the beginning of 2015, there were more than 3.6 billion square feet of building space that were LEED certified and more than 69,000 LEED building projects in 150 countries. All federal buildings are required to be LEED certified, and LEED is referenced in project specifications for 71% of projects valued at $50 million and over.  Even with its dominance though, many in the industry are questioning LEED’s efficacy and eager for an alternative.

Builders and contractors are, at times, frustrated with LEED’s rigid standards. For example, LEED emphasizes air tight buildings to enhance energy efficiency, but achieving that when building a new warehouse, for example, does not make much sense when most such facilities have dock doors that are open all day.  Critics of LEED also complain it does not take into consideration innovative building designs, but instead, awards points for minor low-cost steps that have little environmental impact, such as adding a bike rack. LEED projects also require highly specialized consultants that increase the upfront costs of new building projects. It is estimated LEED consulting fees can increase the price of a project by 4-13%.

These pitfalls have led many in the construction industry to look for an alternative, such as Green Globes. Green Globes is a relatively newer green building certification, and the U.S. General Services Administration recently approved the Green Globes’ certification as an alternative to LEED. Green Globes bills itself as a more streamlined and affordable alternative to LEED. It uses an online system that purports to be cheaper, faster, and much more user-friendly as compared to LEED, which is notorious for being overly complicated. A significant advantage of Green Globes is it automatically sends out an assessor to each Green Globes building site to work with the project teams and owners, which allows for a fluid and efficient building process.  LEED requires builders to actually seek out a LEED consultant in order to get certified.

However, Green Globes is not without its critics. Environmentalists disfavor Green Globes because they consider its standards to be less stringent and disapprove of its greater leniency when it comes to building materials. LEED only gives credit for wood products certified by the Forest Stewardship Council, while Green Globes gives equal credit to the timber industry’s Sustainable Forest Initiative, which permits larger clear cuts, as well as the use of herbicides.  Generally speaking, Green Globes is considered to be more industry friendly. Many of its members and board of directors are connected with the plastic, chemical, and timber industry, which has given rise to accusations that some standards are meant to benefit those industries rather than the environment.

Furthermore, Green Globes suffers from the same problem as LEED by focusing on a pre-set list of designs that earn points, while awarding no points for innovative designs that could be just as, if not more, environmentally friendly.

There is also some dispute as to whether Green Globes truly is cheaper than LEED. A 2011 study by Drexel University ran a hypothetical implementation of both LEED and Green Globes and found that attaining a Green Globes certification would be less expensive and faster. However, a different study looked at attaining LEED’s and Green Globes’ minimum certifications, and it found that Green Globes’ certification would cost almost twice as much as LEED’s.

As it stands, LEED remains the main player in green building certification. There are 37 times more LEED certified project than Green Globes, and LEED has 200,000 accredited professionals compared to Green Globes’ 1,000. Nevertheless, Green Globes is growing and offering an alternative to LEED in green building. Whether you should choose LEED or Green Globes for your project is a fact specific question. While LEED is still the industry leader, for certain projects Green Globes might offer a more user friendly and less expensive alternative.
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Grain Storage Bins as Property Tax-Exempt

A Legal Update

By: Luther L. Liggett, Jr., Kohrman Jackson & Krantz PLL

Introduction
Across Ohio, county auditors improperly classify Portable Grain Bins installed by the agricultural industry as incorporated into real estate, and therefore taxable for property tax valuation.
In a case of first-impression, the Ohio Supreme Court upheld the Board of Tax Appeals in declaring that a “grain storage bin” is a “business fixture,” and therefore not part of the real estate valuation. 
Therefore, farmers and agricultural businesses should not pay property tax on their farm equipment including Grain Storage Bins.
Factual Background
Among the county auditor’s duties is the appraisal of real estate for valuation, against which the county levies Property Taxes.  Typically the auditor will include any improvement incorporated into the real estate. 
Farm operations typically include barns, permanent silos, elevators, and grain storage bins.  The county auditor may not distinguish among these different facilities, as all are relatively “permanent” and add value to the tax duplicate, increasing the property tax base.
Yet agriculture is a business, no different than any manufacturing concern that installs heavy equipment in unique business facilities.  Those manufacturing facilities are exempt from property tax, because the land cannot be sold for the higher value to an ordinary buyer not in the same business.
The Metamora Elevator Company owns and operates eight acres of land containing silos, storage bins, tanks, and buildings used to process and to store grain.
Metamora filed complaints with the Fulton County Board of Revision, alleging that its “grain storage bins” on the premises should be classified as personal property not subject to property taxes.  This would reduce the “land” value subject to annual property taxes by over $500,000.00.
In other factual examples, similar agricultural businesses depreciate such grain storage bins as personal property.
Typical Grain Storage Bins are modular, corrugated units bolted to a concrete foundation, which can be dissembled and moved.  In contrast, silos are considered permanent and constitute realty.
On appeal to the Ohio Board of Tax Appeals determined that the storage bins were temporary structures and therefore personal property, exempt from property taxes which apply only to real property.
The Ohio Supreme Court declared the Grain Storage Bins to be “business fixtures” without the need to determine whether they also constitute personal property.
Legal Analysis
In determining whether a land owner’s real estate should increase in value for property tax purposes, the county auditor must look to the definitions in law.  R.C. 5701.02 defines real property:
As used in Title LVII of the Revised Code:
(A) 'Real property,' 'realty,' and 'land' include land itself . . . with all things contained therein, and, unless otherwise specified in this section or 5701.03 of the Revised Code, all buildings, structures, improvements, and fixtures of whatever kind on the land…
A practical test is whether the land owner might sell the property for a higher value as a result of the improvement.  Starting with bare land, building a new home on it would result in an increase in valuation for property tax purposes.
In contrast, the Ohio legislature does not treat “personal property” that happens to be located on the real estate as adding to the value.  A simple example is whether the “improvement” is not permanently affixed but can be removed.  This is often referred to as “the Jolly Green Giant” test: if the building is picked upside down and shaken, anything not affixed is not real estate for purposes of valuation.
Another example is whether the “improvement” is related only to a business, and would be of no value to an ordinary purchaser of the land unless in the same business.  In a typical building, water plumbing pipes add value to the building.  But in a beer brewery, the process piping through which the beer runs is a business fixture, and does not count toward raising the value of the real estate.
Applying these considerations to a Grain Storage Bin, even the concrete pad beneath the Portable Grain Bin and elevator equipment is considered a “business fixture” even though it cannot be moved.  If sold to an ordinary buyer, the new owner may consider the unusable concrete pad even to detract from the value of the land. 
In 1992, the Ohio General Assembly amended the definition of “personal property” to include “business fixtures.” The test is whether the equipment “primarily benefits” the business or the realty. R.C. 5701.03 defines personal property:
As used in Title LVII of the Revised Code:
(A) “Personal property” includes every tangible thing that is the subject of ownership . . . including a business fixture, and that does not constitute real property as defined in section 5701.02 of the Revised Code.
(B) “Business fixture” means an item of tangible personal property that has become permanently attached or affixed to the land or to a building, structure, or improvement, and that primarily benefits the business conducted by the occupant on the premises and not the realty. 'Business fixture' includes, but is not limited to, machinery, equipment, signs, storage bins and tanks, whether above or below ground, ****
Consistently, Ohio sales tax law treats Grain Storage Bins as personal property.  When an agricultural business purchases a Portable Grain Bin, the owner/purchaser must pay (and the seller/contractor must collect and remit,) Ohio sales tax, because R.C. 5739.01(B)(5)(b) expressly declares the Portable Grain Bin to be personal property, not incorporated into the real estate, and therefore constitutes a taxable sale.  Thus, Ohio law expressly defines a Portable Grain Bin as personal property for purposes of sales tax in construction:
Ohio Administrative Code 5703-9-14:
(C) The sale and installation of the following items is never a construction contract and such transactions are to be treated as the sale and installation of tangible personal property for sales tax purposes:
* * *
(3) Portable grain bins as defined in division (B)(5)(b) of section 5739.01 of the Revised Code;
R.C. 5739.01(B)(5)(b) is conclusive of legislative intent: 
"Portable grain bin" means a structure that is used or to be used by a person engaged in farming or agriculture to shelter the person's grain and that is designed to be disassembled without significant damage to its component parts.
Therefore, state law requires that an agricultural business pay sales tax on installation of Portable Grain Bins at the time of purchase.  It is unfair first to charge Sales Tax to an agricultural business such as Metamora, treating the assembly of a Portable Grain Bin as personal property, then turn around and charge Property Tax as though the same facility is a permanent improvement to the real estate.  Accordingly, Portable Grain Bins taxed as personal property for sales tax should not be taxed a second time as real property.
Court Decision
The Ohio Supreme Court upheld the Ohio Board of Tax Appeals, declaring that an agricultural Grain Storage Bin should be classified as a “business fixture” not subject to real estate tax.  Given the value of such large facilities, the reduction in property tax to an agricultural owner can be significant.
The Supreme Court streamlined consideration of whether the item is a “business fixture” without having to consider whether it is “real property.”  The Court found that the legislature declared storage bins to be business fixtures, and that will suffice to exempt them from property taxes.
Conclusion
The Supreme Court decision removes any doubt that Grain Storage Bins are considered “business fixtures” and exempt from property taxes.  This should result in significant savings across the agricultural industry in Ohio.
With this court precedent, farmers and agricultural businesses now can file a complaint with the county board of revision, asking that the valuation of their land be reduced by the value of any grain storage bin.
Editor’s Note: Luther L. Liggett, Jr. and David M. Scott (of Kohrman Jackson & Krantz) filed a brief in this case with the Ohio Supreme Court urging affirmance for amicus curiae (friend of the Court) Central Ohio Farmers Co-Op.

Mr. Liggett focuses his practice in government contracting, administrative procedure, state licensure, construction law, property tax revision, mortgage banking, legislative lobbying, government policy formation, and litigation.  For more information, contact:  

Luther L. Liggett, Jr., Kohrman Jackson & Krantz-10 W. Broad Street, 19th Floor Columbus OH 43215-(614) 427-5742 - LLL@kjk.com.


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.

Analysis by The Associated General Contractors of America

Fact Sheet by the National Association of Counties
Article published 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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