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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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If the borders of a definition have changed, the definition has changed.
No. The "borders" issue is about the meaning of "adjacent," not the meaning of "wetlands." As the Court said in its opinion the other day, "at least some wetlands must qualify as “waters of the United States.” . . . But what wetlands does the CWA regulate? . . . because the adjacent wetlands in §1344(g)(1) are “includ[ed]” within “the waters of the United States,” these wetlands must qualify as “waters of the United States” in their own right. In other words, they must be indistinguishably part of a body of water that itself constitutes “waters” under the CWA. This understanding is consistent with §1344(g)(1)’s use of “adjacent.” . . . Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby."
Note that there is no dispute about what "wetlands" means, but rather, which wetlands are included in "waters of the United States. The "borders issue" is hence not about the borders of wetlands, but the borders of "waters of the United States."
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