On June 5, 2007, the EPA and the Corps issued their much-awaited "guidance" on how the agencies intend to implement the Rapanos decision. Unfortunately for the regulated public, it's same-old same-old. The agencies declare that they will not assert jurisdiction over (1) swales and erosional features, and (2) ditches lying wholely in upland areas. Besides these very minor exceptions, the agencies intend to assert their authority to the fullest, using as broad an interpretation as possible for both the tests set forth in the Rapanos plurality and Justice Kennedy concurring opinions.
The agencies state that they will continue to assert jurisdiction over wetlands "adjacent" to nonnavigable tributaries, as well as those directly abutting navigable waters, without establishing a significant nexus between those wetlands and the waterway. The italicized point is critical, because it reveals the agencies' interpretation of the Rapanos plurality opinion.
The plurality opinion sets forth (at least) two conditions to the assertion of jurisdiction over wetlands (and these apply whether or not the adjacent waterway is navigable). First, the wetland must be hydrologically connected to the waterway. Second, the connection between the wetland and the waterway must be such as to make it impossible to distinguish where the wetland begins and the water ends. The agencies ignore both requirements: they state that a hydrological connection is unnecessary for wetlands abutting a traditional navigable waterway, and that only a "surface water connection" is necessary to establish jurisdiction over wetlands "adjacent" to nonnavigable tributaries.
Although one might plausibly argue that under Justice Kennedy's view, wetlands directly abutting navigable waterways are conclusively presumed to bear the requisite significant nexus, the same cannot be said (at least in the absence of new regulations that make categorical determinations for wetlands adjacent to various types of tributaries) for wetlands adjacent to nonnavigable waterways (such as the ditch at issue in Carabell, the Rapanos companion case). Therefore, because the agencies cannot assert jurisdiction over wetlands "adjacent" to nonnavigable tributaries under the Rapanos plurality without a finding of "indistinguishability" (for lack of a better word), the agencies must establish a significant nexus, on a case-by-case basis. That, however, they disclaim any intent to do.
Thus, the new guidance is really anything but, and the agencies' continued failure to clarify the rules under which the regulated public must operate just underscores the need for the Supreme Court to step into the fray again.