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It's a bit worse than that; Sackett (2012) asked whether an agency's final ruling with penalties counted if the agency might change its mind about enforcement, but it also had to decide that "The Clean Water Act is not a statute that “preclude[s] judicial review” under the APA, 5 U. S. C. §701(a)(1)." And SCOTUS had to make that conclusion because the government argued such preclusion seriously. Indeed, the lower court decision references cases that accepted that explicitly.
The poster is probably referring to various rulemakings and interpretations around that rule, which has been repeatedly modified: the 2023 final rule actually starts with a relatively complete (if not exactly unbiased) summary of the recent history, but also see the 2014 NPR, 2020 final rule, timeline 2001-2016 here.
The definition of "wetlands" in the CFR was not changed, but not all wetlands were covered by the Clean Water Act's past interpretations. I can't find the 1980 version from a quick search, but the 1986 guideline is here (cw: large pdf): it explicitly only covered "interstate wetlands" and "wetlands adjacent to waters (other than waters that themselves are wetlands)", where adjacency required "means bordering, contiguous, or neighboring", with some exceptions for manmade structures and beach dunes. By contrast, Obama- and Biden-area rules do not require adjacency, but merely a "significant nexus", pulling the term directly from Kennedy's concurrence in Rapanos (ie, and thus a term that was not used before 2006).
Estimates on exactly how many acres this covered are hard to come by, not least of all because every expansive WoTUS rule also advocated a case-by-case analysis, and probably didn't include literally every place to ever have standing water, but the claim that it didn't expand the area or coverage significantly doesn't pass the sniff test.
How far is "neighboring", they're 300 feet away from the lake.
This case is weird because the objectionable part doesn't seem to be the idea that the ditch on their land has some relation to the water quality of the lake, but the treatment of gravel and sand as pollutants. If they had been dumping highly toxic waste on marshy land next to a ditch that flowed into Priest Lake we wouldn't care whether it's technically adjacent or not, we'd understand that some amount of the water-soluble pollutants are going to make it into the lake. The maddening part is treating construction sand like toxic waste.
Having had to secure an erosion and sedimentation permit, there's good reason for treating sand and gravel as waste. It may not kill fish the way a more traditional toxin will, but it can seriously gum up an ecosystem enough to have the same effect on the health of a stream or lake. There is a whole host of Federal regulations concerning how much fill you can dump into a lake.
Right, but nobody was planning to dump fill in the lake as a part of this homebuilding process I shouldn't think?
If the Sacketts were to dump a bunch of diesel on their property, it's plausible that this could pollute the lake -- but sand and gravel to not travel in the water table this way, and should be regulated separately if the EPA is going to take an expansive enough definition of "waterway" to cover groundwater pollution.
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There's a lot of good policy arguments in favor of more specific and expansive regulations for more specifically dangerous materials. There are even good policy arguments in favor of regulating large changes to water runoff, including those done by the safest construction sand and gravel -- you can fuck up a lot of ecology with a giant dam, after all, and even without a basement the typical house is a large dam.
Some of these regulations exist, either at the federal level in other laws, or in some or all states. But it is easier to redefine things.
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So…is the OP a partisan hack or not?
A bit. At the very least, there's a ton of history here crossing 50 years across multiple political allegiances and a lot of 'non-political' regulation well before the Biden or Obama administrations. But not as much as gdanning's response suggests.
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That helps clarify part of what I saw about the case (the Reason video from six months ago) where the EPA also demanded they plant wetland plants on the land where none such plants grew. Ridiculous.
To be fair, a lot of wetlands plants are pretty hardy, if only because the definition is so expansive. You're probably thinking cattails or mangroves that require regular inundation to thrive, but the EPA and Army Corps of Engineers includes a broader framework of plants that merely require highly hydrated soils, including some dogwoods and willows.
That frame of logic was part of the reasoning some previous short-lived attempts at very expansive definitions of 'wetlands' (eg, in the late 1980s, must have seven consecutive days water no more than 18 inches underground).
That would definitely make my entire town wetlands
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That reminds me that I need to uproot the "wetland grasses" on my land that are growing in the middle of all the other stuff.
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And, if that had been OP's claim, there would have been no need to correct it. Similarly, had OP discussed the "adjacency" issue, as you do, and which was the actual point of disagreement between the justices in the recent decision, there would have been little reason to comment. But instead OP made a specific claim, i.e., that "wetlands" includes "any land on which there is any standing water at any time of the year," which is clearly not true.
I'm not sure it is clearly not true; there's a reason I wrote and emphasized probably, here, and the Sackett's property is already a pretty far outlier from the common read.
Is is clearly not true because the regulation clearly doesn't say what OP says it does. OP said it says one thing, when it says something else. Whether the Sackett's property falls within the (actual) regulatory definition is an entirely different issue.
PS: Again, not that it matters to the issue of OP's misstatement, but see the photos at the end of the Ninth Circuit opinion here. That does not look like " a pretty far outlier from the common read."
The site's google maps location is available here. The statute's definition to directly quote the opinion "the CWA prohibits the discharge of pollutants into only “navigable waters,” which it defines as “the waters of the United States, including the territorial seas,” 33 U. S. C. §§1311(a), 1362(7), (12)(A) (2018 ed.)".
The EPA's ability to literally ever find standing water ever seem more an example of the problem rather than a defense, unless you think the Congress of 1972 meant to include happy meal toys in their concept of navigable, and not care whether it'd have to teleport through dirt to go anywhere.
Now you seem to be making a different claim, i.e., that the regulatory definition of "wetlands" is inconsistent with the statutory defintion of "waters of the United States." That may be, but what does that have to with OP's erroneous claim?
The OP's claim was that :
Ignoring for now the nitpick that what the Biden (and Obama) EPA attempted and what made it into the final rule don't have to be the same thing, the Sackett property pictures in the lower court opinion seems to be a literal case of an environment where areas that had standing water only for a part of the year.
EDIT: to be clear, I think pushing back about it being certainly including any land which had any standing water for any time would be somewhat reasonable, but your implication that the current rule either a) had no modifications since the 1980s, or b) depended solely on the term wetlands, is not reasonable.
Well, the definition that I cited is exactly the same now as it was in 1980, and is exactly the same as what the Court says it was a few years later. So unless they changed it, then changed it back to the exact original language, my inference that the definition had no modifications since the 1980s is perfectly reasonable.
OP made a claim that "Biden's EPA . . . attempted to define the navigable waters of the united states to mean any land on which there is any standing water at any time of the year." What can that possibly mean, other than a claim about what constitutes "wetlands," given that, as I said, 40 CFR 120.2 (ie., EPA regulations) defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." How could OP's claim about how Biden's EPA defines navigable waters possibly be anything other than a misstatement of that regulation, which is the current EPA regulation that defines navigable waters?
The rule is not the simple definition of "wetlands", and the regulation you've quoted but not linked makes that clear when read in full:
(with some later exceptions)
These regulations do not require merely whether the land is a "wetland" under the CWA's definition, because not all wetlands are covered; if they are not adjacent to (a)(1) waters (aka territorial, interstate, or interstate commerce), adjacent to relatively permanent waters with a continuous surface connection, or wetlands "significantly affect"ing (a)(1) waters.
More importantly, this component has changed: see 2020, where "adjacent wetlands" has its own separate definition section, or 1986 where the "waters of the United States" rule had a section for intrastate wetlands where "the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters" until they were largely invalidated by SWANCC v Army Corps) (focusing directly on the Migratory Bird Rule as a particular extension of the "affect interstate or foreign commerce" interpretation) and Rapanos.
The 2015 rule was... a bit of a clusterfuck, even in its final form (ed: with irrelevant sections excised):
wwwweeeeee, that's a fun read. But for a tl;dr, it required only that "wetlands" be used in interstate commerce, be interstate, be adjacent to interstate waters or those subject to the flow of the tide, or have a significant nexus to one of the above waters and be in either a 100-year floodplain or 400 feet of a high-water mark or be within certain geographic types (Idaho, mostly prarie potholes). (Some exceptions not relevant here.)
This isn't literally every place that has standing water, fair! There's a specific exception for puddles! (Slightly snarky of one.) But this very clearly isn't the 1986 rule, or the pre-1986 rule, not least of all it's specifically written to respond to Rapanos.
Well, at the risk of stating the obvious, a claim about what is defined as a navigable water, emphasis added by you. Again, if your claim was that the definition of the navigable waters used against the Sacketts in 2007 predated the Biden administration, you're quite right! If you want to say that the term navigable is a bit of an afterthought that remains due to the history of 33 USC 1344, and the various rules really modified the definition of "waters" that navigable waters then used, sure, if perhaps procedural enough to be boring. But if your claim is that the definition of the navigable waters has not changed or that we care solely on the definition of "wetlands" no further limitations, than there's literally dozens of pages of NPM and Final Rule showing your error. And these definitions are at the crux of the case here.
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