Recently, I spoke with a regulator who informed me they are using both the Scalia and Kennedy definition of Clean Water Act jurisdiction to assert jurisdiction over intermittent and ephemeral streams, and wetlands adjacent to non-navigable tributaries. I inquired as to whether this is the official regulatory policy in light of the Rapanos decision. The short answer was that the substantive guidance has been leaked and some regulators have seen it and are now applying it on a case-by-case basis.

I would like to know if this practice is occurring in other parts of America.

Please post credible reports of projects and circumstances where either the Corps or EPA, or another government agency, has asserted jurisdiction or taken enforcement action based on an un-official and premature interpretation of the Rapanos decision, using either the Scalia or Kennedy definition of Clean Water Act jurisdiction.

Likewise, if anyone has an unofficial version of the “substantive guidance” then please post it.

This is what it's come to? Leaked guidance?

About a year ago, I was told that there was "Top Secret" guidance that was being used but it was not being released to the consultant/client. Yes, I was told it was top secret and the public was not able to view it; however, was regulated by it ...