Here are the new COE /EPA guidlines. I think these are way beyond what the Court had in mind. They are far less than what is in the Bill CB1 pointed out.

June 5, 2007 Clean Water Act Jurisdiction

Clean Water Act Jurisdiction

Following the U.S. Supreme Court’s Decision

in

Rapanos v. United States & Carabell v. United States

This memorandum provides guidance to EPA regions and U.S. Army Corps of

Engineers ["Corps"] districts implementing the Supreme Court’s decision in the

consolidated cases Rapanos v. United States and Carabell v. United States1 (herein

referred to simply as "Rapanos") which address the jurisdiction over waters of the United

States under the Clean Water Act.2 The chart below summarizes the key points contained

in this memorandum. This reference tool is not a substitute for the more complete

discussion of issues and guidance furnished throughout the memorandum.

1 126 S. Ct. 2208 (2006).

2 33 U.S.C. §1251 et seq.

Summary of Key Points

The agencies will assert jurisdiction over the following waters:

• Traditional navigable waters

• Wetlands adjacent to traditional navigable waters

• Non-navigable tributaries of traditional navigable waters that are relatively permanent

where the tributaries typically flow year-round or have continuous flow at least

seasonally (e.g., typically three months)

• Wetlands that directly abut such tributaries

The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to

determine whether they have a significant nexus with a traditional navigable water:

• Non-navigable tributaries that are not relatively permanent

• Wetlands adjacent to non-navigable tributaries that are not relatively permanent

• Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable

tributary

The agencies generally will not assert jurisdiction over the following features:

• Swales or erosional features (e.g., gullies, small washes characterized by low volume,

infrequent, or short duration flow)

• Ditches (including roadside ditches) excavated wholly in and draining only uplands and

that do not carry a relatively permanent flow of water

The agencies will apply the significant nexus standard as follows:

• A significant nexus analysis will assess the flow characteristics and functions of the

tributary itself and the functions performed by all wetlands adjacent to the tributary to

determine if they significantly affect the chemical, physical and biological integrity of

downstream traditional navigable waters

• Significant nexus includes consideration of hydrologic and ecologic factors


http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm