Will Rogers, Farmers and Waters of the United States

The social commentator Will Rogers famously said that a "farmer has to be an optimist or he wouldn’t still be a farmer."  Those words certainly ring true when one reads EPA's Farm, Ranch, and Rural Communities Advisory Committee's advice to EPA regarding EPA's eighth attempt to determine the reach of the Federal Clean Water Act now underway.

This morning Inside EPA's Lara Beaven reports that the Advisory Committee recommends that EPA dramatically change its course.  It also doesn't seem to think much of the United States Supreme Court's most recent tangle with the Clean Water Act in which the nation's highest court invited years of litigation to determine what discharges to groundwater are the "functional equivalent" of a direct discharge to a Water of the United States.

The Farmers and Ranchers say that the federal law should "avoid vague terminology that both landowners and regulators cannot apply without engaging in burdensome analyses."  Yes, please.  I agree with the Farmers and Ranchers that if a law requires litigation to sort out its application, it probably isn't a good law.  Yet that is exactly where EPA seems to be heading with its proposed regulation of any "impoundment", "wetland" or "other waters" that are either "relatively permanent" or have a "significant nexus" to a "Water of the United States."

Ms. Beaven also reports that in the meantime the Supreme Court seems to be leaning toward another bite at the Waters of the United States apple but likely not until EPA is much farther down its current regulatory path.

That brings me back to Mr. Rogers.  One certainly needs to be an optimist to think that we're going to arrive at a "durable" definition of Waters of the United States through regulation or litigation any time soon.  In the meantime Congress continues to sit on its hands.