When it comes to the reach of the Federal Clean Water Act, is rule making a way to find common ground and, if so, why hasn't it worked yet?

Yesterday EPA  Assistant Administrator for Water Radhika Fox told an EPA Advisory Committee EPA remains committed to using Federal rule making to find "common ground" respecting the reach of the Federal Clean Water Act.

Assistant Administrator Fox's optimism is admirable but impossible to reconcile with our actual experience over the past several years and current realities.

As I've written in the past, rulemakings aren't, by their nature, as appropriate for compromising as legislating but are certainly more amenable to compromising than litigation which is where most of the Federal Clean Water Act lawmaking has been occurring of late.

But if EPA really wants to find common ground it might lead by example.  EPA's pending "stage 1" regulation doesn't do that.  It would expand the reach of the Clean Water Act to any "impoundment", "wetland" or "other waters" that are either "relatively permanent" or have a "significant nexus" to a "Water of the United States" as they have been defined for decades.  Based on EPA's "stage 1" effort why would any stakeholder with a different view be "willing to get uncomfortable to find common ground" as Assistant Administrator Fox suggests.

And even if stakeholders with differing views might otherwise be inclined to "get uncomfortable", why wouldn't they now wait to see how the Supreme Court decides the pending Rapanos case which could, some would say likely will, affect the "significant nexus" underpinning of EPA's current proposal.

For these reasons, and others, sadly the most likely outcome of EPA's current and anticipated rule makings is more litigation as the longest running controversy in environmental law continues.  The Clean Water Act deserves a better fiftieth birthday present.