Becasue the Administration has yet to propose new regulations implementing the Rapanos decision, Pacific Legal Foundation has submitted its own regulations to the Corps and EPA for action. Read the petition here.
In its remand order, apparently written by Judge Posner, the original panel in U.S. v. Gerke directs that the case be sent to the trial court and decided using the Kennedy "significnt nexus" test. With logic that can only be described as backwards, the panel concluded that the Kennedy test is "narrower" than the Scalia plurality. The Pacific Legal Foundation will be filing a petition for rehearing en banc on this order.
We continue to see articles promising the promulgation of internal guidelines for implementing Rapanos. The tip off as to where these guidelines are heading can be found in Administration statements to the effect that the objective of the guidelines will be "to continue to protect wetlands under the Clean Water Act to the maximum extent allowable" and the assertion that the Kennedy opinion is controlling in the case. From what we have seen so far in post Rapanos enforcement, it is doubtful the agencies will acknowledge any significant curtailment in authority under the Clean Water Act.
Last month the Ninth Circuit Court of Appeals decided Northern California River Watch v. City of Healdsburg. This was the first appellate case applying the Rapanos decision. The court summarily determined that the Kennedy approach was controlling and purported to find a "significant nexus" between a municipal waste pit and the nearby Russian River. The decision raises more questions than it answers. So, now, both parties and the Department of Justice (as amicus curiae) are asking for en banc review or clarification. Other amici, including the Pacific Legal Foundation, are also asking the court to rehear the case.