27-05-2025
What is the waters rule and why should you care?
The final listening session focusing on a controversial water rule will be held Thursday in Salt Lake City to give Utah residents a chance to weigh in.
Called the Waters of the United States, or WOTUS, the hotly contested issue has wrangled its way up to the U.S. Supreme Court.
It has been batted around among various presidential administrations that have never been able to agree on its extent and reach.
The EPA and the Department of the Army will be conducting a hybrid listening session for the public on Zoom and in-person at the Utah Department of Environmental Quality Multi-Agency State Office Building.
The consecutive sessions will be offered at 2–4 p.m. and 4–6 p.m. Participants for this session will include: EPA Office of Water Acting Assistant Administrator Peggy Browne, EPA Region 8 Administrator Cyrus M. Western, and colleagues from the Department of the Army.
An Obama-era rule issued in 2015 as an outgrowth of a Supreme Court decision was lauded by environmental activists and conservation groups as the most significant and impressive overhaul of the Clean Water Act in 42 years.
Groups like the Theodore Roosevelt Conservation Partnership said the Obama rule clarified federal jurisdiction over seasonal streams — which involves 60% of the stream miles in the United States — and was critical for the Prairie Pothole region hosting 70% of the ducks in North America.
Supporters of WOTUS say it is meant to protect the benefits of water for all people of the United States to enjoy, not just individual property owners.
The rule, however, was derided by states, private property owners and ranchers as regulatory overreach that stretched the meaning of words like navigable, near or adjacent.
The case of the Sacketts is one example.
Mike and Chantell Sackett bought a vacant lot to build their dream home on in a mostly built-out subdivision in northern Idaho only to be told by the federal government their property was a wetland and subject to the authority of the Clean Water Act.
'The Sacketts' vacant lot is adjacent to Priest Lake, which is 300 feet away and behind two rows of houses,' said Tony Francois, an attorney with the Pacific Legal Foundation, which sued on behalf of the couple in 2008.
Francois said the U.S. Environmental Protection Agency and Army Corps of Engineers have construed WOTUS to expansively extend their authority beyond what is reasonable due to an earlier 2006 Supreme Court decision (Rapanos v. United States) that gave little to no clarity on the issue.
In that case, the Supreme Court was trying to answer the question of how closely connected to a navigable river or lake a body of water has to be for Clean Water Act regulations to kick in and how permanent must that water be.
The Sacketts prevailed at the U.S. Supreme Court.
A majority of the justices held to a plurality opinion in the 2006 case that the Clean Water Act applies to only those 'wetlands' or water which must be relatively permanent and connected to traditional interstate navigable waters.
Justice Samuel Alito, who authored the concurring opinion, warned that under the EPA's interpretation of the Clean Water Act, 'nearly all waters and wetlands are potentially susceptible to regulation under this (significant nexus) test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.'
Utah was among an 11-state coalition that successfully got the rule put on hold with a federal injunction issued in 2018, and Utah's state Legislature has weighed in with a resolution opposing the WOTUS rule.
It still remains a contentious issue, however, as the federal government tries to reach a compromise.
The listening session Thursday in Salt Lake City is designed to gather more information.
