A 5-4 decision was released today remanding both the Rapanos and Carabell cases back to the lower courts.

In this opinion, the Supreme Court has appeared to take certain types of “tributaries” out of coverage under the Clean Water Act, Despite if you are in favor of the COE regulating waterways and wetlands or not, the courts reduction of CWA protection may have taken federal protection back to pre-CWA.

Notable excerpts…

---The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary par-lance as “streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

---We need not decide the precise extent to which the qualifiers “navigable” and “of the United States” restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over “waters.” 33 U. S. C. §1362(7).”

---the waters of the United States” include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.”

---But this does not contradict our interpretation, which asserts that relatively continuous flow is a necessary condition for qualification as a “water,” not an adequate condition. Just as ordinary usage does not treat typically dry beds as “waters,”

---In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] . . . oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

So, in my tainted reading, it appears not only has the Court reduced the scope of the Corps regulatory authority, it has stated that all the intermittently or ephemerally flows were not and are not protected under the CWA.

Interestingly enough, they did not say that the lands in both the Rapanos and Carabell cases were not regulated under the CWA, they just sent them back down to the circuit courts to be review under the new definitions of “Waters of the United States” that being “relatively permanent”

Forget the rollback of wetland regulations, all those waterways that are not standing or continuously flowing no longer have protection under the CWA and has brought to us a new regulatory term “relatively permanent”

Let the interpretations ensue!!!!

Par for the course concerning this administration. Maybe it will help their numbers regarding annual loss. Not that unbelievable really. Look at everything else going on!

And I agree Eric, this will re-open the can of confusion that we had worked so hard to close.

Come on people, let's take those two steps back.

FROM the National Association of Home Builders:

In a step forward for affordable housing and the battle against excessive regulation, the U.S. Supreme Court on Monday remanded to the lower courts a decision on whether wetlands connected to actual navigable waters by ditches or drains should be regulated as navigable waters of the United States.

In a plurality decision, the court reversed and remanded Rapanos v. United States, No. 04-1034, and Carabell v. U.S. Army Corps of Engineers, No. 04-1384, back to the 6th U.S. Circuit Court of Appeals, holding that the U.S. Army Corps of Engineers’ often broad interpretation of “waters of the United States” was not based on a permissible construction of the statute.

“To ensure that our nation’s waterways are preserved, the federal government must protect non-navigable rivers and streams with a significant connection to traditionally navigable waters,” said NAHB President David Pressly. “But Congress did not authorize the agencies to control activities in every remote creek, brook or drainage ditch, especially if those features do not support commerce. The court today correctly recognized that there must be limits to how far the federal government can reach upstream.”

NAHB filed a brief of amicus curiae on behalf of the petitioners in the two wetlands cases in December of 2005, prompted by member pleas to help fight the expensive, time consuming and often duplicative regulatory morass they must slog through to get the appropriate permits to build homes. The regulatory morass resulted in higher prices for home buyers and have never been the laudable goal of the Clean Water Act, Pressly noted.

“When Congress first passed the Clean Water Act in 1972, the Cuyahoga River was on fire. Our nation’s waterways were coated with oil and became flammable, and Congress passed the act with those dire circumstances in mind,” Pressly said. "The cases addressed today go far beyond the intent.

“Wetlands are an important part of our natural heritage," added Pressly. "The Florida Everglades and Chesapeake Bay marshlands are just a few of the aquatic resources that must be preserved for future generations. But not every swamp, puddle or roadside ditch rises to that level. We should focus our resources and budget to conserve those wetlands that truly warrant protection.”

http://www.nbnnews.com/NBN/issues/2006-06-19/Front+Page/index.html

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FROM a Wetlands Consulting firm in Virginia:


The long-awaited Supreme Court decision on two cases, Rapanos and Carabell, which could have clearly defined the extent of wetlands and streams that are regulated by the Federal Government as Waters of the U.S. (WOUS), ended in confusion on June 19, 2006. Both Rapanos and Carabell were reversed on a 5-4 decision, and the Court decided that Clean Water Act jurisdiction over wetlands is limited to only certain types of streams and waterbodies but a majority of the court could not decide on how to define such areas.

Thus, at least in the short term, this decision is not likely to change how the U.S. Army Corps of Engineers (COE) deals with land development activities in wetlands, streams, and other WOUS. As Chief Justice Roberts stated, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

It is very likely that this decision will do two things: cause the COE to promulgate new regulations and spawn new lawsuits. In the meantime, the COE and U.S. Environmental Protection Agency will have to issue guidance to field offices for ongoing jurisdictional determinations (JDs) and permits relying on those JDs. But given the historic time frames for the development of regulations and guidance, no changes in wetlands jurisdiction decision methodologies are likely for six to eighteen months.

Perhaps Justice Breyer, in a separate dissent, summarized the present situation most precisely, “In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.”

At this point, we will need to wait for either new regulations from the COE or for an Act of Congress to determine precisely which, and to what extent, streams and wetlands should be regulated under the Clean Water Act. In the short term, the Court's decision will have no effect on typical development projects.

WSSI will keep you abreast of the resulting law or regulatory changes.

http://www.wetlandstudies.com/Newsletters/June2006/SupremeCourt.htm

I have read the decision and two points strike me:

1) hydrology connections can no longer be used as a "significant nexus" for the purpose of asserting jurisdiction,

2) for wetlands adjacent to non-naviagable tributaries; a significant nexas must be based on water quality and flood control, and must be established on a case-by-case basis. Furthermore, the significant nexus may not be speculative or unsubstantial.

This is a profound restriction on the reach of wetlands regulations and it curtails jurisdiction far beyond what I previously imagined possible.

I talked to the Corps today and they told me they intend to continue business-as-usual, without any change in procedures, until they receive guidance from Headquarters. Beyond that, there was no comment.

This message has been edited. Last edited by: Johnny Stevens,

Please include a link to the actual decision.

You can download the actual, wordy Supreme Court decision from the main SWS page, www.sws.org

Richard

Does anyone have any guesses as to what the time table is for this? When will it go back to the lower court and how long will it take to get a ruling from it? Then, when would it go back to the supreme court?

Also, do we know when EPA will issue guidance?

Judy asked:

"...Does anyone have any guesses as to what the time table is for this? When will it go back to the lower court and how long will it take to get a ruling from it? Then, when would it go back to the supreme court?..."


Dear Judy,

My guess is that it would take 2-4 years before this case returns to the Sixth Circuit. It could be 5 -10 years before the next Supreme Court wetlands ruling.

While it remains likely that the courts will change the law again in the future, it is my understanding that the basic findings in Rapanos/Carabelle are now controlling case law for purposes of defining "waters of the United States" and determining the geographic boundary of federal Clean Water Act jurisdiction.

As I mentioned in a previous post, the local Corps told me that they would continue business as usual until they receive guidance from Headquarters. If so, then this may mean that the Corps and EPA will continue to assert jurisdiction based on their pre-Repanos policies, until such time as they update their policies.

All of the development projects in America that are potentially subject to wetlands regulation, can not wait indefintely for the Corps to decide how it will operate in light of the Rapanos decision. Yet a quick decision seems unlikely. Project leaders may have to decide on a case-by-case basis whether to proceed with a project without a permit.

This may have little impact in states with their own wetland laws, but most states to not have such laws.

I read somewhere that this case has significant impacts in western States, where the agencies previously asserted jurisdiction over ephemeral waters which included valleys, gullies, swales, and basins with broadly defined high water marks, in the mountains and on hillsides.

This message has been edited. Last edited by: Johnny Stevens,

Pre-CWA, Mr. Johnson? "Pre"-CWA? Are we talking about the CWA of 1972 which rather purposefully and unambiguously authorizes the Corps of Engineers to issue permits for the discharge of dredged or fill material "IN-TO" the "NA-VI-GA-BLE" waters of the United States? Is that the CWA to which you refer?

God Bless Antonin Scalia and his momma too!

This message has been edited. Last edited by: Matt Reed,

Matt: Like you, I note in Mr. Jonson's tone a sense of dispair, desperation and overreaction. In contrast to the response of the enviro-left to the SWANCC decision, we have thankfully seen little of this sort of excitement since the Rapanos decision came down.

It seems to me that the environmental movement is largely unsure how to react to Rapanos for two reasons. First, their Chicken Little, sky-is-falling post-SWANCC rhetoric has exposed their anti-property rights agenda. In the past 5 years we have not witnessed the wholesale destruction of isolated wetlands which the left predicted. Second, the Kennedy concurrence in the Rapanos majority is so muddled that no one is quite sure how later decisions will play out. It may be that the lower courts are free to follow either the Scalia or Kennedy opinion, choosing the option which better suits their independent fancy.

Though Scalia has the virtue of clarity and any court willing to follow him will have an easy time of it, Kennedy leaves much room for interpretation by judges and bureaucrats. Those courts following Kennedy will be less predictable. One thing seems certain; a simple hydrologic connection is not sufficient per se. Such a connection must now be supported by a factual finding of a "significant nexus" to navigable waters.

As for answering the question of how the Corps will proceed in the interim, a Corps official told me last week that all jurisdictional determinations for properties containing ephemeral and/or intermittent channels will be placed on hold indefinitely until further notice. In other words, the Corps will no longer process your JD if your property contains anywhere within its boundaries either an ephemeral or an intermittent ditch, swale, gulley, drain or stream. I suppose it would be foolish to infer from this that the Corps is seriously questioning its jurisdiction over such areas, or that they are leaning in favor of the Scalia opinion, but it certainly does open a fruitful field for speculation.

Jeff said:

"...a Corps official told me last week that all jurisdictional determinations for properties containing ephemeral and/or intermittent channels will be placed on hold indefinitely until further notice..."


Dear Jeff,

Thanks for the information. If this is correct, then it means that the Corps will no longer assert jurisdiction over wetlands adjacent to ephemeral and intermittent streams, so there will be no need for a significant nexus.

I am curious whether the Corps will continue to assert jurisdiction over wetlands adjacent to non-navigable tributaries that are perenial and not intermittent. If so, then it may need to develop policies and procedures for determining "significant nexus" on a case-by-case basis.

Perhaps Rapanos will offer new opportunities for ambitious wetland practitioners.

"...I note in Mr. Jonson's tone a sense of despair, desperation and overreaction. In contrast to the response of the enviro-left to the SWANCC decision, we have thankfully seen little of this sort of excitement since the Rapanos decision came down..."

I would not so much say there is despair or an overreaction more of a ponderance of the under reaction of others to a case that leads to the potential for many directions and interpretations to form intermittently before our eyes.

I too have had correspondence with the Corps. The latest word is that if the JD involves non section 10 waters that a three week moratorium is in place on them. This is giving the Corps/EPA/DOJ time to prepare guidance to the field on a uniformed approach to handling this.

I think we should anticipate some type of rule making from the EPA and Corps in light of the ruling. However this will be unlike in the SWANCC aftermath, where the administration stopped rule making at the overwhelming request of the environmental groups who wished for the nature of the Corps loose definitions to stay ambiguous to get the most converge of wetlands.

One thing that is of interesting note, in talking with several of my acquaintances in the legal profession, they all bring up the point that the only thing the 4-1-4 ruling gives us is a remand back down to the lower courts and a “significant nexus” which most Corps regulators have been using any way. In some areas of the country this ruling will have no affect on the daily permitting process in others the Corps may just close up shop since there is nothing left to oversee. For those areas of the country and territories that have no local regulations, they can now fill in all the tribs to stop their water from ever reaching down stream and to others cutting off any flow.

It will be interesting to see how both the “protect all” and the “protect nothing” camps way in on the, what is sure to be a, long court process and rule making …

I am sure my statements may have tipped my hand to which camp I side with…

Mr. Johnson,

Put me in the "common sense and meaning of the plain language of the law" camp. If the Corps finally comes around to focusing on the regulation of filling through permitting (is that what you mean by protecting?)of the "waters of Scalia" (traditional navigable waters plus perennially flowing streams and other "permanent" waters and their CONTIGUOUS wetlands) it will be doing the yeoman CWA work it was intended to do.

Eric said:

"...One thing that is of interesting note, in talking with several of my acquaintances in the legal profession, they all bring up the point that the only thing the 4-1-4 ruling gives us is a remand back down to the lower courts and a “significant nexus” which most Corps regulators have been using any way..."


Dear Eric,

The requirement for establishing a significant nexus on a case-by-case basis should open up new opportunities for wetlands scientists.

To the best of my knowledge, the primary significant nexus that the Corps has used in the past, are hydrology connections. I recall
hearing concerns about pollutants flowing through hydrology connections and contaminating navigable waters.

Rapanos said that a significant nexus must not be speculative or unsubstantial, and specifically referenced water quality and flood control functions as resonable nexi.

Wetland science should inform our understanding and methodology for evaluating, quantifying, and effectively determining where water quality and flood control impacts are significant, and where they are not.

It seems reasonable that a computer program could be developed to determine significant nexus on a case-by-case basis, in a consistent and predictable manner.

This must be exciting times for aspiring young wetland scientists.

"Significant nexus on a case-by-case basis". Them's fightin' words.

"Flood-control"? "Water quality"? That's Justice Kennedy's road map for every teen-aged permit writer to put the Corps right back into any headwater stormwater management basin and vegetated swale on the landscape.

No. What regulators need is objective geographic criteria for the "significant nexus" standard. Justice Scalia has pointed the way out of the dark forest into which the Corps has wandered over the past 30 years. Justice Kennedy has done nothing but splash mud on his map.

A mucky road ahead it is! One first step for the Corps is possibly to regulate the same way around the country and territories. Working in many areas, i find it is very common to see that the corps regulates as the courts have told them too from a CC perspective. This may be the cause of the “Philadelphia Ditch Rule” and why the southwest on regulated contiguous wetlands if a navigable water of its tributary flows directly into it not from it.

What I find interesting is that both of the sites that have got us into this great debacle are hydrological connected to a waters that have “relative permanency” and “significant nexus” to navigability. To bad the CC did not introduce that in to the record so the SC could review it.

Do I think the Corps has gone too far in some cases? yes, and in some, not far enough. There has not been a line in the sand for 30 years and the EPA and Corps have drawn that line in many different ways and forms. Based on the proposed rule making after SWANCC the attempt was made to draw a more definitive line. It is just unfortunate that the rod and guns got to the administration to direct the Corps and EPA to stop the rule making process and the Home Builders have made it so any published guidance or process is now rule making. I am sure if rule making had proceeded that the SC would have shown deference to the Corps as almost all CC have in the past. (right or wrong)

We will see. It is evident that rule making is in order or even a change to the CWA

Can’t say that I ever had a permit application denied… Even for the 200 plus acre fill…

On July 5, 06, Eric Jonson reported:

"...I too have had correspondence with the Corps. The latest word is that if the JD involves non section 10 waters that a three week moratorium is in place on them. This is giving the Corps/EPA/DOJ time to prepare guidance to the field on a uniformed approach to handling this..."


Dear Eric,

I received the same report from my contacts at the Corps. An internal letter was issued by the Corps and EPA on July 5, 2006, directing regulatory staff to suspend Jurisdictional Determinations on projects with non-navigable (Sec 404) waters, for a period of three weeks, while headquarters prepares substantive guidance in light of the Rapanos decision.

Now the three week period is over and I have not seen substantive guidance. Does anyone know the status of the substantive guidance? Is the moratorium on Jurisdictional Determinations still in effect or has it been lifted?

Credible information would be appreciated.

---- EXCERPT ----

Statement of Benjamin Grumbles – EPA, and John Paul Woodley Jr. – Corps
In public hearings in the U.S. Senate on Aug. 1, 2006


Supreme Court Decision in Rapanos and Carabell

The judgment of the Supreme Court was to vacate and remand both cases for further proceedings. In summary, four Justices, in a plurality opinion authored by Justice Scalia, concluded that “the lower courts should determine ... whether the ditches or drains near each wetland are ‘waters’ in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are ‘adjacent’ to these ‘waters’ in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview.” 126 S.Ct. at 2235. Justice Kennedy, who concurred in the judgment of the Court, established a different test, concluding that the cases should be vacated and remanded to determine “whether the specific wetlands at issue possess a significant nexus with navigable waters.” Id. at 2252. Chief Justice Roberts joined in the plurality opinion and also wrote a concurring opinion. Justice Stevens, in a dissenting opinion in which Justices Souter, Ginsburg, and Breyer joined, would have affirmed the decisions by the lower courts. Justice Breyer also wrote a separate dissenting opinion.

The plurality opinion, authored by Justice Scalia, first concluded that the petitioner’s argument that the terms “navigable waters” and “waters of the United States” are limited to waters that are navigable in fact “cannot be applied wholesale to the CWA.” Id. at 2220. Citing CWA Section 502(7) and 404(g)(1), Justice Scalia opined that “the Act’s term ‘navigable waters’ includes something more than traditional navigable waters.” Id. Then, after reviewing the statutory language, the plurality concluded that “waters of the United States,” includes “relatively permanent, standing or flowing bodies of water. The definition refers to water as found in ‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.’” Id. at 2221 (citation omitted). The phrase does not include “ordinarily dry channels through which water occasionally or intermittently flows.” Id. The Corps’ interpretation of the term “the waters of the United States,” the plurality concluded, was not based on a permissible construction of the statute.


Justice Scalia elaborated on this test in footnotes. He stated:

By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months-such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent. . . .

It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that the dissent’s “intermittent” and “ephemeral” streams . . . that is, streams whose flow is “[c]oming and going at intervals...[b]roken, fitful,” . . . or “existing only, or no longer than, a day; diurnal . . . short lived” . . . are not. Id. at 2221 n.5 (citations omitted).

The plurality then examined the factor of the adjacency of the wetlands under review to “waters of United States.” Justice Scalia concluded that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a ‘significant nexus’ in SWANCC.” Id. at 2226 (citation omitted and emphasis in original).

In response to arguments that this opinion would “frustrate enforcement against traditional water polluters [under CWA sections 301 and 402] . . ., ” the plurality concluded: “That is not so.” Id. at 2227. The plurality went on to say that “from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates [section 301], even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.” Id. (citation omitted).

Justice Kennedy did not join the plurality's opinion, but instead authored an opinion concurring in the judgment. He agreed with the plurality that the statutory term "waters of the United States" extended beyond water bodies that are navigable-in-fact. Justice Kennedy, however, concluded that wetlands are "waters of the United States" where “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'" Id. at 2248. The concurrence by Justice Kennedy stated, in relevant part, that "[a]s applied to wetlands adjacent to navigable-in-fact waters, the Corps' conclusive standard for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone." Id. With respect to wetlands adjacent to nonnavigable tributaries, Justice Kennedy explained that: "[a]bsent more specific regulations, . . . the Corps must establish a significant nexus on a case-by-case basis[.]" Id. at 2249.

Justice Kennedy did not agree with the plurality’s interpretation of "waters of the United States" and agreed with the dissent “that an intermittent flow can constitute a stream. . . . It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams." Id. at 2243 (citation omitted). In his concurring opinion, Chief Justice Roberts wrote that “[i]t is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U.S. 306, 325 . . . (2003) (discussing Marks v United States, 430 U.S. 188. . . (1977)).” 126 S.Ct. at 2236.

The four dissenting Justices would have affirmed the lower courts’ opinions and upheld the Corps’ exercise of jurisdiction in these cases as reasonable. Justice Stevens also concluded: “In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases - and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied - on remand each of the judgments should be reinstated if either of those tests is met.” Id. at 2265.
The Department of Justice testimony will elaborate further on the effect of the Supreme Court Decision.


Steps to Clarify CWA Jurisdiction after the Rapanos and Carabell Decision

The Rapanos and Carabell decision has important implications for administration of the CWA.

The United States will fully implement the CWA consistent with the Rapanos and Carabell decision. The Agencies are working closely with the U.S. Department of Justice to interpret the decision and its impacts on the scope of “waters of the United States” protected under the CWA. In particular, we are working on joint EPA/Corps guidance clarifying CWA jurisdiction in light of the Rapanos and Carabell decision. It is our hope that the guidance moves us beyond disagreement over how widely we assert jurisdiction, and toward an agreement on how effective we are in protecting wetlands that provide ecological and social benefits. The development of guidance should not be about bigger or smaller jurisdiction but about better results.

In the meantime, our field staff continues to administer CWA programs. To ensure consistent interpretation of the scope of ”waters of the U.S.” in light of Rapanos and Carabell, EPA and the Corps issued immediate guidance to field staff shortly after the decision, indicating that: the field staff should continue to process permit authorizations; to the extent circumstances permit, the field staff should temporarily delay making jurisdictional calls beyond the limits of the traditional section 10 navigable waters; and where delays are not possible and permit actions require taking a position on CWA jurisdictional scope, such determinations should be deferred, where possible, until further guidance is provided by Headquarters of both agencies.

In summary, EPA and the Corps are working quickly to develop interim guidance regarding the tests defined by the Supreme Court in the Rapanos/Carabell decision, in order to provide clarity for the public and to ensure consistency among CWA jurisdictional determinations nationwide.

Conclusion

The agencies remain fully committed to protecting all CWA jurisdictional waters as was intended by Congress. Safeguarding these waters is a critical federal function because it ensures that the chemical, physical, and biological integrity of these waters is maintained and preserved for future generations. Our goal in moving forward is to clarify what waters are properly subject to CWA jurisdiction in light of the Rapanos/Carabell decision and afford them full protection through an appropriate focus of Federal and State resources in a manner consistent with the Act. Working collaboratively and in cooperation with the Department of Justice, EPA and the Corps will continue to assess CWA jurisdiction in light of Rapanos/Carabell issuing additional guidance and refinements as appropriate. We also wish to emphasize that although the Rapanos /Carabell decision and our testimony today focus on federal jurisdiction pursuant to the CWA, other federal or State laws and programs continue to protect waters and wetlands that may no longer be jurisdictional under the CWA following these decisions.

Thank you for providing us with this opportunity to present this testimony to you. We appreciate your interest in these important national issues that are of mutual concern.

Here is a publication with the "gist" of the memo: http://www.aswm.org/wbn/epa_rapanos_memo.pdf

I can find that no official copy of the memo exists. The link on this site appears to direct you to the memo, however it is only for EPA staff.

Any of you EPA folks want to help us out?

Here is another analysis released to day by the ASWM.

http://www.aswm.org/fwp/rapanos_state2006.htm

Go down the page a little way to

ASWM Analysis of Supreme Court Decision in Carabell/Rapanos (added 8-21-06)