I have lately been mulling over the post-Rapanos landscape and have come up with a possible scenario for the near future. At first it may seem a bit far-flung, but give it some thought, then pick it apart and tell me where I'm wrong.

As we all know, the Rapanos case is headed back to the 6th Circuit for review and reconsideration. It is likely that the 6th will employ Justice Kennedy's "significant nexus" test when deciding the case. But, as the SCOTUS demands, such a nexus must be demonstrable, rather than speculative. My sense is that the Corps' record in this regard is rather weak. They relied almost entirely on the somewhat tenuous hydrological connection between the Rapanos wetland and the nearby man-made ditch to prove a nexus to navigable waters. I believe the SCOTUS has rejected the heretofore much-favored hydrology test as a sole basis for jurisdiction. In the absence of a demonstrable nexus, I suspect that the 6th Circuit will be forced to reverse itself.

As someone said earlier, this process could take as much as two years. What will occur in the meanwhile? The Corps and EPA have announced that they are not working on a new "rule", rather they are writing "guidance" based upon the Rapanos decision. Specifically, they are attempting to flesh out Kennedy's "significant nexus" test, a nearly impossible task.

I suppose their thinking is that a proposed rule would be too contentious, much like the earlier, post-SWANCC, "leaked rule" which the Corps did much to distance itself from. I believe that the Corps leaked the rule in order to test the waters, so to speak. But when they learned of the negative reaction from the coalition of sportsman's groups and environmentalists, they publicly disavowed it. It is no coincidence that the rule was leaked to the LA Times, precisely the city from which the then-new Regulatory Chief had worked prior to his arrival in Washington. This is no criticism; it is perfectly legitimate in DC to leak non-sensitive stuff to your friends in the press.

Currently, a moratorium on Section 404 JD's is in effect nationwide, which suggests that Corps and EPA HQ's are unsure of the direction in which they will ultimately take the program. Furthermore, we have learned that the Philadelphia District, in response to a suit filed by the NAHB, has revoked its ditch policy rather than defend the practice (regulating ditches) in the DC District/Circuit Courts. This move reinforces the notion that the HQ's and DOJ, who are calling the shots, are unsure of themselves; but may also indicate that they are lately very uncomfortable regulating man-made ditches.

The Corps and EPA are in a rather tight spot. Prior to Rapanos, they were happy to let the courts re-define the limits of Waters of the United States. They gambled that the hydrologic connection test would be sufficient; we have since learned that it is not. They must be anxious now to create guidance which would preserve much of their jurisdiction, but to do so would almost certainly cause difficulties. They sense that the sportsman/enviro coalition will oppose any rule change, but on the other hand, any meaningful guidance will be fraught with danger. By filing a lawsuit against the Philadelphia Corps' ditch guidance document, the NAHB has clearly signalled its willingness to challenge any national guidance which protects the Corps' prerogative to regulate man-made ditches. Naturally, any such future suit would be filed in the DC District, a court where bureaucratic expansionism has not fared well in the past.

At issue in all of this is the Corps' practice of writing formal JD letters, but, it occurs to me, they are under no statutory obligation to do so. If the law does not demand written JD's, why should the agency risk lawsuits by continuing a practice which is largely voluntary.

Could it be that the Corps and EPA intend to continue working on their guidance until after the 6th Circuit has made it's decision on Rapanos? Are the agencies hoping that the 6th Circuit will define for them the parameters of a significant nexus test?

Jeff asked:

“…Could it be that the Corps and EPA intend to continue working on their guidance until after the 6th Circuit has made it's decision on Rapanos? Are the agencies hoping that the 6th Circuit will define for them the parameters of a significant nexus test?...”


Dear Jeff,

Thanks for your insightful analysis. It is re-assuring to read the comments of others who are pondering this interesting and complex issue.

You correctly point out that if the 6th circuit applies the “significant nexus” test, then it would probably have to reverse itself. This is one reason why the Corps and EPA are having such a difficult time developing a substantive guidance document. If the agencies adopted the plain language of the Rapanos decision, then they would have to reverse themselves and undo an institutional wetlands regulatory program that has taken 30 years to build.

I spoke with regulatory staff who earnestly believes that Rapanos is minor, and Headquarters will issue a guidance document that expands jurisdiction, and then everything will be okay. Some regulators lack adequate legal training and do not understand that Headquarters can not issue a document that opposes the US Supreme Court.

The hard part with the substantive guidance is in formulating the right words to adequately express the bad news while trying to hang on to some remnant of Clean Water Act jurisdiction.

Previously, the Corps and EPA used its expansive pre-Rapanos definition of “waters of the United States” to regulate most large (and small) real estate development projects in America. Prior to Rapanos, the Corps regulated both “purpose” and “alternatives” for new development, which are traditional land-use issues reserved for the legal domain of local governments.

The wetlands regulatory program was the primary tool by which the federal government controlled land-use at the local level. This practice appears to be coming to an end because Rapanos states that the Corps and EPA can no longer use “waters of the United States” to intrude into traditional areas of state and local authority, such as land-use regulation. This is another reason why the agencies are having a tough time issuing their substantive guidance, and it is doubtful that the 6th Circuit can help with the land-use problem.

It may be a long time before the Corps and EPA issue substantive guidance. Until then, the regulated public is left with the challenge of developing real estate projects without a Corps permit. Now that the Corps has imposed a moratorium on jurisdictional determinations, a land owner may not know with certainty whether a permit is actually required. It makes no sense to apply for an expensive, difficult, and elusive environmental permit, if the permit is not actually required.

The Corps has offered to perform unofficial preliminary jurisdictional determinations, so that a land owner may proceed through the permit process. This approach may be acceptable to some folks, but it is legally preferable for the Corps to simply to inform the land owner when a wetland is not jurisdictional, and when a permit is not required.

Surely there are other great minds and astute individuals who can decipher Rapanos and inform us if a wetland is jurisdictional. Are the Corps and EPA the only entities capable of such discernment? Must we really wait for the Corps and EPA to issue substantive guidance before we know the meaning of Rapanos?

Presently, many real estate projects in America must stand-still until the Corps and EPA decide to issue substantive guidance. This situation is untenable and unsustainable. To enforce the moratorium, the agencies would have to issue Cease & Desist orders against thousands of land owners from sea to shining sea. Our courts (and possibly our jails) would become clogged with wetland offenders. Our economy would slide into recession and major disruptions would occur in housing, schools, roads, office buildings, hospitals, and other infrastructure projects. This is why we need a reasonable approach such as After-the-Fact permits.

A reasonable compromise would be for land owners to delineate wetlands in accordance with the Corps procedures. If the jurisdictional status is uncertain due to Rapanos, then land owners should be able to proceed with their projects and apply for an After-the-Fact permit, if it becomes necessary after the substantive guidance is issued and the jurisdictional questions are answered. The wetlands delineation would serve as the basis for an After-the-Fact permit application and mitigation requirements.

This approach bypasses the “purpose” and “alternatives” rules which the Corps normally seeks to apply prior to construction, but these are land-use issues that local governments and zoning authorities should properly handle.

In the future, after the wetlands regulatory program re-organizes and adjusts itself, the Corps could resume its permitting process within the legal framework of Rapanos.

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

I love it when folks "ponder" these issues on this board.

Mr. Stevens, your predictions of legal chaos and economic collapse without Corps/EPA Rapanos guidance are a riot. I take it with the grain of salt that I'm sure you intended. However, your assertion that "some regulators lack adequate legal training and do not understand that Headquarters can not issue a document that opposes the Supreme Court" causes me genuine worry. Au Contraire, mon fraire!

First of all, Kennedy so completely and hopelessly muddied the waters in Rapanos that it's gonna be difficult for anyone to successfully argue that anything short of actually and purposefully expanding Corps jurisdiction "opposes" this Supreme Court ruling.

And secondly, Corps "Headquarters" answers to the Executive Branch - one of the three separate and theoretically co-equal branches of our government. The executive enforces the law at its discretion. Would that the executive branch defy the Supreme Court once in a while and simply decline to enforce or recognize some of the silly rulings that issue from the SCOTUS. But alas, that takes some stones.

Anyway, in this muddy case, make no mistake, "Headquarters" can and will do as the executive branch pleases. And if it pleases to appease the entrenched environmental bureaucracy and its activist constituency, appease they shall.

Johnny and Matt: Thanks for responding to my ramblings. I am happy to see that at least a few wetlands watchers are interested in Rapanos and what it means for the future of wetlands protection.

"Ponder" is indeed a good word to describe this exercise. I admit I have no inside track and don't wish to convey a sense that I know more than I am saying. My speculations are just that; an intuitive ordering of disparate facts within the limited confines of my head. I enjoy gathering little threads of data and piecing them together to create a flimsy clothe of wooly theory.

I agree with Matt that it is naive to assume that the government's lawyers and regulators will not challenge Justice Scalia's views of the appropriate extent of waters of the US. Thanks to Justice Kennedy, the Rapanos decision is a muddled concoction in search of a boiling pot.

It is now the Corps' lot to sort out and decypher the new "Significant Nexus" (SN) test. This task cannot be completed by consultants and property owners. Only the Corps and EPA are authorized to determine the extent of waters of the US - within the confines of the CWA. My point is that the Corps is likely to minimize the effect of Rapanos, if they respond at all.

Apparently it is not necessary to wait until the Corps/EPA HQ's prepare their guidance, because the government is acting almost as if it is "business as usual". The Corps is indeed continuing to review permit applications without the initial, and apparently unecessary, step of first issuing a formal JD. I do not believe that real estate projects are at a stand-still, at least not yet. There is some confusion at the moment, but once the public adapts to the moratorium, and as long as they are getting their permits on time, I do not foresee a permanent state of disarray.

At the risk of repeating myself, I suspect that the Corps/EPA is betting that the current quiescence will hold, and that there will be no loud clamor for written guidance. In any case, we are in the final run of an election season, so we shouldn't expect guidance until after November seventh.

I too have recently had discussions with mid-level Corps and EPA regulators. My impression is that they are either quite confused or misinformed about the situation. They seem to think that the Rapanos quandry is a technical question, rather than a legal one. Apparently, the folks I spoke with haven't actually read the decision; a situation I find inscrutible. I suppose they feel as though their personal knowledge of Rapanos would have little effect on their day to day operations, so why bother to ponder it. There seems to be an institutional determination to ignore Rapanos. On the other hand, it may be that they suspect the truth would be too painful to accept.

Let's face it, it turns out that the kooky, old "Vast-Rock-Wing Conspiracy" was right about Corps jurisdiction, and that is a tough pill for the expansionistas to swallow.

As far as the Corps' ability to regulate "purpose" and "alternatives," their actions in this regard are entirely legitimate. They are clearly authorized to review purpose and alternatives under NEPA and 404 provided they do not expand their geographic scope of review to include waters not specified in the CWA or Rivers and Harbors Act.

The Executive Branch is run primarily by the bureaucrats, not the elected officials. I suspect that the extent of involvement of the White House in all of this is limited to instructing the bureaucrats to wait until after the election and don't upset the organized sportsmen/environmentalist coalition. The best way to accomplish this is to simply sit on it and do nothing.

Jeff said:

"...Apparently it is not necessary to wait until the Corps/EPA HQ's prepare their guidance, because the government is acting almost as if it is "business as usual". The Corps is indeed continuing to review permit applications without the initial, and apparently unecessary, step of first issuing a formal JD. I do not believe that real estate projects are at a stand-still, at least not yet..."

Without a formal jurisditional determination, any permitting activity by the Corps is unofficial.

I heard reports that the Corp has declined to take enforcement action against some projects that are proceeding with construction without first obtaining a permit.

The best indication regarding the substantive guidance is to consider the guidance document that was issued following the SWANCC decision. This is the EPA/Corp Joint Memorandum of Jan. 2003, and it required regulatory staff to consider relevant court decision before asserting jurisdiction or taking enforcement action. This guidance is still in effect and is applicable to Rapanos.

I once asked a regulatory staffer about the Joint Memorandum and they were not aware of its existence. They claimed that no guidance was ever issued following the SWANCC decision. One should not expect to receive accurate legal information from regulatory staff.

Since Rapanos, there have been Clean Water Act cases in the 5th, 7th, and 9th Circuit Courts of Appeal (federal). Each of these cases have interpreted Rapanos in different ways. Relevant court decisions carry far greater legal weight than any guidance document. Land owners have the option of relying on relevant court decision to determine CWA jurisdiction on their property.

Federal courts now have the lead role in formulating wetlands policy. Any guidance document that the Corps issues must comply with relevant court decisions, and this is why it would be difficult for the agencies to expand jurisdiction via a guidance document. The Corps and EPA did not expand jurisdiction when it issued guidance on SWANCC (Joint Memorandum).

If no guidance is issued, then land owners will be forced to rely on the plain language of Rapanos and determine for themselves if CWA jurisdiction exists on their property. Apparently, this is why the Corps is allowing some projects to proceed without a permit.

Anyone seeking a permit for wetlands that Rapanos de-regulated, is in for a difficult, expensive, and frustrating experience.

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

Below is a link to petition from the Pacific Legal Foundation to the EPA, requesting that EPA/Corps implement rule making instead of a guidance document, to codify Clean Water Act jurisdiction in light of the Rapanos decision.



http://environmentalnewsstand.com/secure/data_extra/dir_06/epa2006_1632a.pdf

Johnny: Thanks for providing your timely update. Your link to the Pacific Legal Foundation reinforces my earlier assertion that the Rapanos "guidance" will almost certainly be challenged in the federal courts. Those who represent the regulated public are pushing hard for a rule change, subject to public notice and comment. Internal guidance does not permit the public involvement so much desired by the "Limited Government" faction. Their cause is bolstered by the clear comments of the Rapanos plurality and minority -- both of whom called for a rule change and chastised the Corps for not doing so after SWANCC.

You also stated that the Corps has recently declined to take enforcement action against some unpermitted activities, presumably in 404 waters. Following Rapanos, the Corps HQ issued a moratorium not only on JD's, but also on new 404 enforcement activities as well. In the context of potential 404 violations, it is most difficult to establish the extent of a violation if you cannot first establish the extent of jurisdiction. Hence the stop order on new violations.

However, I must say that your bold assertion that "without a formal jurisdictional determination, any permitting activity by the Corps is unofficial" is without basis. Corps regulations do not require that such a JD be performed prior to permit issuance. In practice, the Corps has been issuing Section 10 permits for over 100 years without formal JD's, and 404 permits for over 30.

By the way, it has been recently confirmed that the Rapanos guidance is being delayed until after the November elections (no surprise there).

I have read the decision of the federal court for the Northern District of Texas in US v. Chevron, but I'm unfamiliar with the other cases to which you allude (i.e., 7th and 9th Circuits). Can you give us a quick synopsis of the outcomes of those cases?

In US v. Chevron, the Lubbock Court ruled that an unpermitted discharge of a pollutant into an intermittent waterway did not constitute a discharge into a navigable water, nor was there a "significant nexus" present between the intermittent waterway and a navigable water. This particular court proceeded to, in Chief Justice Roberts' words, "feel its way" to a decision by following both the Scalia test and the Kennedy test. The government's argument that a discharge into an intermittent stream COULD affect downstream navigable-in-fact waters failed both tests. Had they shown that it DID affect navigable waters, the US would surely have won.

Jeff said:

“Corps regulations do not require that such a JD (Jurisdictional Determination) be performed prior to permit issuance. In practice, the Corps has been issuing Section 10 permits for over 100 years without formal JD's, and 404 permits for over 30 years.”

Dear Jeff,

I stand corrected. Presently, if a land owner concedes to pre-Rapanos jurisdiction then a formal Jurisdictional Determination may not be required. However, if one relies on relevant court decisions then a JD becomes necessary and the land owner is subject to the moratorium. This policy disrespects the authority of the Supreme Court.

The Corps should not penalize land owners who rely in good faith on the plain language of the courts to determine jurisdiction on their property. It is very difficult for an ordinary citizen to understand the tortured logic of Clean Water Act jurisdiction.

Your prediction that the guidance would be litigated may be another reason (besides the 06 election) for the delay. The Rapanos guidance could be postponed much longer, possibly until after the 2008 election.

Since the Corps must comply with relevant court decisions, why bother with another guidance document? Why not use the old SWANCC guidance (Joint Memorandum 1/15/03)?

The Corps may simply follow whatever legal decisions are applicable in each federal appellate circuit, and leave policy making to the courts where it always has been.

Below are the links you requested.

Thanks for your thoughtful thoughts.



US v Gerke – 7th Circuit
http://environmentalnewsstand.com/secure/data_extra/dir_06/epa2006_1618.pdf

Healdsburg - 9th Circuit
http://environmentalnewsstand.com/secure/data_extra/dir_06/epa2006_1632d.pdf

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

Mr. Stevens,

I would add only two very cynical points to your comments:

1. The Supreme Court has no authority beyond that granted to it in practice by the Executive and/or the Legislative branches.

2. With regard to the Corps/EPA and guidance/rulemaking? The Corps/EPA will do whatever is most expedient.

Matt said:

"...The Supreme Court has no authority beyond that granted to it in practice by the Executive and/or the Legislative branches..."


Dear Matt,

I understand your point, but I believe that ordinary citizens may invoke the legal authority of the Supreme Court when dealing with regulatory disputes.

I remember a project in 2001 that had been stalled for years waiting on a permit from the Corps. The day after the SWANCC decision, construction began without a permit. In this case the authority of the Supreme Court extended to a land owner and regulatory agency long before it was granted by the Executive and Legislative branches.

Any citizen in America may rely in good faith on the authority of the U.S. Supreme Court to determine federal Clean Water Act jurisdiction on their property, and the Corps and EPA must respect this determination provided that it complies with the plain language of Rapanos. I believe this is why the Corps and EPA issued a moratorium on both jurisdictional determinations and enforcement actions.

For the record, I predict that the much rumored guidance document, when and if it is ever issued, would instruct regulatory staff to apply the new plurality definition of "waters of the United States," and the Kennedy stipulation for a "significant nexus," and it will continue the present policy of considering relevant court decisions before asserting jurisdiction or taking enforcement action.

The sad reality is that the federal wetlands program has been deconstructed by the courts and it will never return to what it was before. Leaders in the EPA/Corps are promoting state and local regulation as the best alternative to federal regulation.

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

Johnny,

Thank you for your thoughtful response. Unfortunatlely, the issues that we have swerved into are outside the ken of this forum. And we could fly-off into space on a wayward tangent if we're not careful. So, I'll confine myself to just a couple of remarks:

1. The federal wetlands program was/is constructed like a flimsy house of cards on specious court decisons, decades ago. It is both poetic and ironic that it be "deconstructed" by the courts. With any luck, it will never return to what it was before. However, I agree with your prediction that we will likely end-up with a case-by-case Kennedy "nexus" program which will be prodded and cajoled by court decisions along the way.

State and local regulation as the best alternative to federal regulation? What's so funny 'bout peace, love and state regulation?

2. "Any citizen in America may rely in good faith on the authority of the Supreme Court to determine....." Ultimately, authority resides at the end of a gun. And the Supreme Court doesn't have any guns. The president, and by extension the Corps/EPA, has the guns, and the prisons. No one would ever expect a civil rights era showdown over a wetland fill. But, unless a citizen, along with maybe the "guvnuh" of his state, is prepared to face-down national guard troops in either defiance of or reliance on the Supreme Court, he has no good faith.

Johnny said:
"Any citizen in America may rely in good faith on the authority of the U.S. Supreme Court to determine federal Clean Water Act jurisdiction on their property..."

Dear Johnny,
I don't think it is a good idea to advise everyone in America to start interpreting Supreme Court decisions and disregarding federal regulators. Many people have different interpretations about what the Supreme Court decisions actually say. Take Rapanos for instance. As I have gathered, the only clear part of the decision was that the lower courts must re-examine the case. My neighbor might think that Rapanos means that he can fill his cattail marsh on the shipping canal without a permit.

People should at least realize there is a risk of interpreting the law incorrectly if they fill before the Corps revises it’s guidelines. If the wetland filler’s interpretation is different than the Corps, they will at least face a long court fight.

Andy said:

"...I don't think it is a good idea to advise everyone in America to start interpreting Supreme Court decisions and disregarding federal regulators..."


Dear Andy,

I understand and appreciate your sentiments, but under the present circumstances it makes little difference whether we regard or disregard federal wetland regulators. We have not received an interpretation of Rapanos from regulators so it is only reasonable that one would turn elsewhere to discern the meaning of this Supreme Court decision. I do not wish to sound disrespectful, but many regulators have a poor education in wetlands law and they sometimes dispense misleading information.

For example, you said; “Take Rapanos for instance. As I have gathered, the only clear part of the decision was that the lower courts must re-examine the case.” This is a common and erroneous explanation that is provided by federal regulators, along with their other erroneous assertion that; “basically nothing has changed.”

If these faulty assertions were completely true then there would be no reason for the Corps to impose a moratorium on both jurisdictional determinations and enforcement actions (for the first time in the 30 year history of the wetlands regulatory program).

Rapanos went much further than simply remanding the case back to the lower courts. As previously noted, Rapanos redefined “waters of the United States,” rescinded the use of “hydrology connections,” and required a “significant nexus” for federal jurisdiction over wetlands adjacent to non-navigable tributaries. Thus far, federal regulators have been unwilling or unable to issue any “interpretation” that would change these basic rulings.

Clearly the boundaries of Section 404 jurisdiction have shrunk, the question is “how much.” If one seeks the answer, then we must turn to legal experts in wetlands law and this is how we know that Rapanos has changed the law far more than simply remanding the case back to the lower courts.

Anyone out there who is patiently waiting on federal regulators to interpret the meaning of Rapanos should consider the moratorium and its implications, and be prepared for a long wait, and maybe look elsewhere for the answers they are seeking.

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

The federal 1st Circuit Court of Appeals recently issued a decision in a wetlands case that is based on its interpretation of the Rapanos decision.

Federal courts determine wetlands policy in America and this where the public and regulators must go to find guidance on the Rapanos decision.

http://www.eswr.com/latest/johnsonremand1stcircuit.pdf

On Oct. 11, 2006, Jeff Rodney said:

"...By the way, it has been recently confirmed that the Rapanos guidance is being delayed until after the November elections (no surprise there)..."

Dear Jeff,

Now that the election is over and the Democrats have regained control of Congress, do you have information on whether the guidance is still scheduled to be issued "soon?"

There are some critics who charge that the Administration has not been a good steward of wetlands protection. They point to the Joint Memorandum of Jan. 03, as an example of flawed policy that opens loop-holes for wetlands development. These critics may wish to revise the guidance before it is issued.

If the Rapanos guidance incorporates both the Scalia and Kennedy tests for federal jurisdiction, then this should satisfy the concerns of those who seek maximum protection. Accordingly, the guidance should be issued unless there is another reason to delay.

If issuance threatens to trigger a new round of lawsuits, then either new regulations or legislation may be a more appropriate legal remedy. Conditions may now be favorable for new legislation, in which case "guidance" may not be necessary or acceptable.

It is likely that the Administration would receive harsh criticism of its environmental policy regardless of how the guidance is worded, so it may be reluctant to proceed after the disappointing election results. A wrong move at this juncture could bolster impeachment efforts.

My hope is that the new leadership in Congress will seek an agreement that protects the wetlands that have been restored in Iraq, as a condition for U.S. withdrawal.

ps: on 11/10, I received information that the draft guidance is undergoing another round of revisions and may be released after Thanksgiving.

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

Johnny: Sorry for the delay in responding, but I haven't been here in a while.

Honestly, I can't see how a Democrat Congress could possibly change the current course of the White House regarding Rapanos guidance. We all assume that the D's would not wish to reduce 404 jurisdiction at all. It occurs to me that the White House is in agreement with that sentiment. They certainly are in no rush to clarify Rapanos.

A week before the election, Corps people were telling me that the grapevine says there will be no guidance at all, and that the agency hopes to simply return to business as usual after the dust settles a bit. They will quietly lift the 404 JD moratorium soon and begin writing JD's again. In fact, some Districts never stopped writing them.

The Corps seems to feel that they are free to disregard the Supreme Court, regulate the entirety of the tributary "system", and use the hydrological connection test to prove adjacency.

In fact I have recently heard of a case in the Philadelphia Division in which the Corps has shut down a developer for filling a small area of a man-made, ephemeral drainage ditch without a permit. And this agency action occurred after the Philadelphia Office was ordered by the DC District Court on July 26, 2006 to discontinue their internal policy of regulating such ditches (NAHB v. USACE). This sort of administrative defiance is shocking, but, as Matt Reed said, the Executive Branch has the guns to back up their arrogance. In any case, this story strongly suggests that the Corps is not waiting for any phantom guidance.

If such Executive intransigence qualifies as good stewardship, then the Corps is the best friend a wetland ever had, or a least the champion of ditches everywhere.

And I wouldn't hold out hope that the new Democrat Congress will ride in any time soon to save W's butt by revising the CWA; it just ain't gonna happen.

The best way to save the wetlands in Iraq is to create a nationwide permit program over there modelled on the American version. Those of you who have struggled through the required paperwork and senseless bureaucracy associated with the program in this country know what I mean.

Jeff said:

“Corps people were telling me that the grapevine says there will be no guidance at all, and that the agency hopes to simply return to business as usual after the dust settles a bit. They will quietly lift the 404 JD moratorium soon and begin writing JD's again.”



Dear Jeff,

Thank you for this information. If the White House does not issue the Rapanos guidance, then the moratorium should remain in effect. Without the moratorium, many land owners would be hit with bogus jurisdictional determinations that are driven by the whims of regulators invigorated by the recent elections. Without guidance, legislation, or new regulations, chaos reigns and litigation is the only way that Rapanos could be enforced.

The moratorium is the only administrative defense that land owners have against regulators who seek to impose pre-Rapanos jurisdiction. The moratorium protects land owners from arbitrary and illegal enforcement actions. This is why we need the moratorium. If the White House declines to issue guidance then it should leave the moratorium in place until legal disputes over jurisdiction are properly resolved.

Johnny,
Are you saying that landowners should proceed with their projects based on their own determination of "what is" and "what is not" jurisdictional? I think that the moratorium has effectively frightened landowners in our region to the point of inaction. They have become so accustomed to having the Corps sign off on their projects (even if no permit is needed), that they are questioning any other judgement that their projects are non-jurisdicitonal.

I think that we absolutely need to have some guidance, and fast.

Johnny: Chaos and confusion indeed reign within the 404 kingdom. Neither the R's nor the D's are in a hurry to revise the reach of the CWA. I believe that the lawyers who run the Justice Dept. are quite happy to let the lower courts sort out the precise boundaries of 404 jurisdiction.

Anyone who thinks that Bush and Cheney are calling the shots on this issue doesn't understand how the federal government works. I realize I may sound cynical, but it is the bureaucrats who run the day to day operations of the executive branch, and if the bureacrats decide that it is better to delay a policy change until the courts have picked over the issue, then that is how it will proceed. I think it's fair to say that a majority of Corps and Justice personnel are in favor of an activist view of 404; that is they wish to see it expanded not reduced.

Your fear that, absent guidance, litigation will be the only way to enforce Rapanos, may be precisely the government's strategy. They may be gambling that the Circuit and District courts, in general, are more inclined to grant federal jurisdiction than is the Supreme Court. If so, then from their perspective it is better to allow the former to set the boundaries in the hope that by the time a particular case makes its way to the SCOTUS, the litigation history will be so muddled, or the composition of the Supreme Court so altered, that a fair chance of an expansive decision may result.

In response to Craig, it seems that the moratorium almost guarantees that landowners must decide for themselves "what is and what is not" regulated. Because they cannot get the answer from the Corps, they are forced to rely on their lawyers and consultants. Or am I missing something?