Doubting late is going to be better than never this time!

It is a sunny May day in Massachusetts and there were zero deaths attributed to COVID-19 here yesterday so in many respects all is well, or at least better than it has been for a long time.  And I guess that's the spirit in which I should read Bloomberg Environment's report that Radhika Fox, President Biden's nominee to be EPA Assistant Administrator for Water, testified today that EPA "wants to arrive at a durable definition of federal waters" in its eighth attempt to define the reach of the Federal Clean Water Act.  But I'm positive that was the Agency's intention the last seven times it attempted the same trick and I'm struggling to come up with any reason that the eighth time will be the charm.  

No, I don't think we find ourselves caught in an interminable game of regulatory and judicial ping pong because of a lack of intentionality on the part of the Environmental Protection Agency.  I think the reason the Agency has failed to resolve the longest running controversy in environmental law for over thirty years, including but not limited to during the Obama and Trump Administrations, is because neither the Executive Branch nor the Judicial Branch of our Federal Government are constitutionally designed for compromise.  Agencies make rules.  Judges make decisions.  The branch that is constitutionally best suited for achieving consensus on "durable definitions" is the Legislative Branch.  You don't need to take my word for that.  Unfortunately, to our collective detriment, the relevant language of the Clean Water Act has remained unchanged for nearly a half century.  If that isn't durable, I don't know what is.

I really do wish EPA luck in what many would say is a Quixotic quest.  But even more, I wish that Congress was able to do its job and answer the question EPA and the Courts have been struggling to answer for decades.