EPA and COE release Rapanos Guidance

A year after the mess that is Rapanos EPA and the Corps have finally released guidance documents on how they will be determining Clean Water Act jurisdiction. It's probably the best they can do under the circumstances, and they seem (or at least claim) to be trying not to contract or expand their jurisdiction, but rather to just make sure the determinations comport with one of the tests in Rapanos (the plurality's continuous surface connection standard and Kennedy's significant nexus standard).

But it still seems to leave everything very messy, involving a lot of case by case determinations for non-navigable tributaries and wetlands adjacent to them. This includes intermittent and ephemeral streams in the West. Just really messy. Congress should step in, though I understand there is a Clean Water Authorization Act in the works. I'll hope for the best.

On a side note, going back to Scalia's original opinion, I am endlessly amused by his use of an antiquated dictionary, and befuddled by his method of defining "intermittent streams" and "ephemeral streams" by looking up the definitions for "intermittent" and "ephemeral" standing alone. Maybe he should look up "jargon" and get it through his head that certain fields, especially science, have specialized, technical definitions that may not be in his 1954 Webster's 2nd. So it goes...