A controversial water rule is being revamped by the EPA

SALT LAKE CITY — The U.S. Environmental Protection Agency once again will revisit a controversial rule to define streams and wetlands protected by the Clean Water Act.

Administrator Lee Zeldin announced this month that EPA will work with the United States Army Corps of Engineers to review the definition of "waters of the United States."

Called WOTUS, the rule has been batted back and forth amid controversy entrenched in wetlands protection versus private property rights.

"We want clean water for all Americans supported by clear and consistent rules for all states, farmers, and small businesses," said Zeldin. "The previous administration's definition of 'waters of the United States' placed unfair burdens on the American people and drove up the cost of doing business. Our goal is to protect America's water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs, and families to help Power the Great American Comeback."

The EPA said it will move quickly in coordination with the Army Corps of Engineers to streamline the definition of what constitutes "water" to protect clean water standards and also provide farmers, landowners, businesses, and states with clear and simplified direction.

What is the fuss about?

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 was near 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 Environmental Protection Agency and Army Corps of Engineers have construed the rule to expansively extend their authority beyond what is reasonable due to an earlier 2006 Supreme Court decision 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 and won their case, to the dismay of conservation organizations.

The fight continues

"This will be the fourth rule attempting to define the Waters of the United States in a decade. We need to stop playing political pingpong with this vital issue," said Jim Murphy, the National Wildlife Federation's director of legal advocacy. "A 2023 Supreme Court decision greatly narrowed the scope of streams and wetlands that can be protected by the law, and that narrowing is already reflected in the current rule. With the likelihood of a skeletal workforce at EPA, this move will put even more pressure and expense on states and localities to ensure our water is safe."

"All of our waters are connected. This rule should not put drinking water unnecessarily at risk nor should it increase flood risks for communities in a time when insurance costs are already skyrocketing. We encourage the administration to include downstream communities and water suppliers in their conversations about this rule," Murphy added.

But advocates of revisiting the rule said it has nothing to do with clean water but protecting property rights and taking a balanced approach.

In 2017, EPA Administrator Scott Pruitt visited Utah as part of a multistate tour to get input on how the agency can be more responsive to states' needs in general and in specific how the controversial Waters of the United States rule should be retooled.

During his tour of Utah, Pruitt stopped off at the Bitner Ranch and Conservatory in Park City to get a firsthand look at a small pool of water that falls under federal regulation due to the rule, as well as a subdivision development hampered by permitting requirements.

EPA's review will be guided by the Supreme Court's Sackett decision, which stated that the Clean Water Act's use of "waters" encompasses only those relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers and lakes. The Sackett decision also clarified that wetlands would only be covered when having a continuous surface connection to waterbodies that are "waters of the United States" in their own right.

But EarthJustice says there are dire consequences in this matter of what is subject to federal jurisdiction.

The group said in these states, more than 75% of their streams are classified as ephemeral or intermittent streams by the U.S. Geological Survey. After Sackett, ephemeral and intermittent streams are likely more vulnerable to being targeted for development and pollution without strong state protections. That includes Utah.

Related topics