An internal EPA memorandum from the Office for Enforcement and Compliance Assurance reveals that Rapanos, in combination with the EPA’s June 2007 Guidance, has, in the memo’s wording, "negatively affected approximately 500 enforcement cases," by making the jurisdictional assessment more burdensome, resource-intensive, and time-consuming. The memo suggests three changes to the Guidance to improve post-Rapanos enforcement:
1. Do away with the concept "relevant reach" to delimit the segment of a nonnavigable tributary to which EPA must look for a significant nexus, and instead look to the entire tributary.
2. Rely upon Justice Kennedy’s "aggregation" principle to assert wetlands jurisdiction on a watershed-wide basis.
3. Adopt an "ordinary high water mark" standard to determine categorically whether nonnavigable tributaries bear a significant nexus with navigable waters.
Of course, each of these recommendations merely serves to expand federal control to all the Nation’s waters; and EPA seems to operate under the assumption that regulatory streamlining achieved by increasing agency power is just as much a benefit to the public as regulatory streamlining achieved by reducing agency power. At bottom, the memo reveals EPA’s desire to do an endrun around the significant nexus requirement by creating classes of wetlands and tributaries that are presumptively jurisdictional.