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Notes -
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.
No, that is NOT my claim. My claim is that the definition of wetlands has not changed, because that was the definition to which OP was referring, even if OP is too ignorant to understand that. As I stated in my initial response, navigable waters includes, but is not limited to, "wetlands", and the definition of "wetlands" has not changed. And if "wetlands" does not include "any land on which there is any standing water at any time of the year," then what part does?
Show me precisely where the rule you quote applies to "any land on which there is any standing water at any time of the year." Because the Supreme Court stated almost 20 years ago that "the Act's use of the traditional phrase "navigable waters" (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water." Rapanos v. United States, 547 US 715 (2006)
Finally, your reference to the 2015 rule is nice, but it certainly does not support OP's claim about "Biden's EPA" promulgating new definitions. And, btw, what part of that 2015 reg is new, as opposed to a repeat of language that has been around for 40 years (such as, yes, the definition of "wetlands" on p. 37106)?
So you were stuffing words in his mouth while being wrong yourself?
No, again, "navigable waters" does not include all "wetlands" as an full set, and to my knowledge has never done so across 50 years of regulatory interpretation despite the best efforts of the EPA. And "navigable waters" (or "waters of the United States") is the relevant term that describes the limits of the EPA's jurisdiction for Clean Water Act purposes. The law and regulation prohibits discharge of pollutants on "navigable waters" of the United States, and these only include those defined in 40 CFR 120. You know, the thing that you've been quoting repeatedly for the definition of "wetlands"? Except it does not have, under its definitions of the "waters of the United States", a simple line of just "a) wetlands (all of them, really)".
It includes some wetlands, whose borders have been subject to 50 years of nazel-gazing argument. It does not include every wetland, nor does it in practice often act as the primary constraint on whether specific lands fall under the CWA.
Well, for the 2015 version and for the very specific question of the Sacketts, "all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section", given that the Sacketts were within 4000 feet of Priest Lake.
For the 2022 one: "Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section: (i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section; or (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section."
For the 2023 one:
There's a fair criticism that this is not literally any land with any standing water at any time of the year. There is not a fair criticism that the relevant parts of the regulation have stayed static, just because one part of one term has not been redefined. Wetlands (and in some versions, ponds) have had massive revisions in how connected they must be to other waters before they fall under the EPA (and Army Corp of Engineers) jurisdiction for CWA purposes, separate from whether they were literally wetlands (or, for some rules, ponds, and playas, and yada yada).
Literally the entire section I quoted. That's why I was quoting them, to contrast the differences. You can see the big sections I'm quoting, right? Not being obliterated by CSS issues or bad screen contrast? I tried leaving some as inline quotes in this post in case it helps.
No, as I have shown repeatedly, the definition of wetlands has not changed. Yes, the "borders have been subject to 50 years of nazel-gazing argument" but the definition has not. Regardless of whether land is "adjacent" to a lake or "contiguous" to it, it does become a wetland unless it is "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," and that has not changed for 45 years.
No one ever said they did.
Yes, but the question is, what, according to the EPA, makes the Sacketts property "waters"? The answer is that the EPA claims that property contains "wetlands." So, I ask again, if the definition of "wetlands" does not include "any land on which there is any standing water at any time of the year," then what part does.
No, that does not seem to be the case. The first parts you quote seem identical, either literally or in substance, to the regs quoted in 1980 in People of State of Ill. v. Outboard Marine Corp., 619 F. 2d 623 (7th Cir. 1980), though I have not hunted down the subreference in the section on tributaries. But I am not going to research the whole thing, because you are the one who claimed it is new. I do note that although the language you italicize re "All waters adjacent to a water identified in paragraphs (1)(i) through (v)" is not literally the same as it was in 1980, it does not appear to be substantively different, because in 1980 the regs said that waters of the US include "Wetlands adjacent to waters identified in paragraphs (t)(1)-(5) of this section." So the change appear to reflect renumbering. So, I ask again, what part of that 2015 reg is new, as opposed to a repeat of language that has been around for 40 years (though tbh I don't even know why the 2015 reg is relevant, esp since the EPA has been making the same argument in court since the dispute began, which was long before 2015.
The definition of wetlands has never been the relevant prong, and the OP you're stuffing words into never used the term and may not even have been aware of it. The borders of "navigable waters of the United States" is what determines the EPA's regulatory authority here, as made clear by the literal first lines of the decision.
No, because simply having "wetlands" or "waters" is (allegedly) not sufficient for coverage under the EPA's CWA claims. From the opinion:
wetlands had “a significant nexus to a traditional navigable water.”6 A “significant nexus” was said to exist when “ ‘wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity’ ” of those waters. 2007 Guidance 8 (emphasis added). In looking for evidence of a “significant nexus,” field agents were told to consider a wide range of open-ended hydrological and ecological factors.
The EPA claims that these lands counted as "navigable waters of the United States" for CWA jurisdictional purposes because they were both wetlands and had a "significant nexus" to "non-navigable tributaries". And, notably, the court opinion here assumes that they are "wetlands" for CWA purposes. But even the relevance of a "significant nexus" is pulled directly from Rapanos, well after the 1980s, nor is it the sole change to definitions of "navigable waters of the United States".
((Nor is "wetlands" necessary: see the 2003 Guidance's [Tributaries of Tributaries] rule.))
In this case, the EPA's position required "navigable waters" to commute across several steps. To take the summary from the opinion:
EPA evaluation of the Sackett property's CWA status depends not just on the lot being a wetlands, but also that it is "adjacent" to a tributary despite the presence of a wide road in the middle, and that it matters that the tributary feeds a non-navigable creek. A lot of these rules had changed, and that doesn't just matter for the Sacketts.
Trivially "all waters adjacent to a water" and "wetlands adjacent to waters" is actually a pretty big difference!
Beyond that, the definition of "adjacent" changed, too, and remember that adjacency was required. Both definitions use "bordering, contiguous, or neighboring", but the 2015 version specifically said adjacency did not require they be "located laterally", and defined "neighboring" to include being within 100 feet of a high water marker (1500 feet in 100-year floodplains); these components were totally absent from the 1986 version. And that's just that one prong.
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