Just (Knowingly) Add Water Part 3

This morning Lara Beaven of Inside EPA writes of the continuing legal battle between the Sacketts of Idaho and the United States Environmental Protection Agency.  You could literally write a book about this battle which began around the turn of the century when the Sacketts began to build a house on a lot they owned and were told by EPA that would be prohibited under the Clean Water Act.  EPA and the Sacketts have already been to the United States Supreme Court on one issue and now they're in the Ninth Circuit Court of Appeals on another issue.

Today's skirmish is about which EPA definition of Waters of the United States should be used to assess the reasonableness of EPA's historic determinations about the Sacketts' property.  The Sacketts argue that the Trump Administration's 2020 Waters of the United States rule should apply.  EPA says one of two of the opinions rendered by the Supreme Court in Rapanos in 2006 should apply (no opinion commanded a majority of the Court). 

In a classic case of attempting to make a silk purse out of a sow's ear, EPA tells this panel of the Ninth Circuit that EPA's recent loss in the Lucero case in the Ninth Circuit conclusively answers this question in EPA's favor.

You may recall that in Lucero a three judge panel overturned a criminal conviction for violating the Clean Water Act because the jury was not instructed that the defendant must be proven to have knowingly discharged a pollutant to water.  The panel also ruled that the 2020 Waters of the United States rule didn't apply retroactively.  But that didn't really have anything to do with the outcome of the case.  And I don't think it will have anything to do with the outcome of this case either.

What no one is disputing is that over the past thirty plus years, EPA's definition of Waters of the United States has changed too many times.  How could anyone think the next time will be the last time?