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Culture War Roundup for the week of May 29, 2023

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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.

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.

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."

No, because simply having "wetlands" or "waters" is (allegedly) not sufficient for coverage under the EPA's CWA claims. From the opinion:

At the time, the EPA interpreted “the waters of the United States” to include “[a]ll . . . waters” that “could affect interstate or foreign commerce,” as well as “[w]etlands adjacent” to those waters. 40 CFR §§230.3(s)(3), (7) (2008). “[A]djacent” was defined to mean not just “bordering” or “contiguous,” but also “neighboring.” §230.3(b). Agency guidance instructed officials to assert jurisdiction over wetlands “adjacent” to non-navigable tributaries when those

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:

According to the EPA, the “wetlands” on the Sacketts’ lot are “adjacent to” (in the sense that they are in the same neighborhood as) what it described as an “unnamed tributary” on the other side of a 30-foot road. App. 33. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as “similarly situated.” According to the EPA, these properties, taken together, “significantly affect” the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto “the waters of the United States.”

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.

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."

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.