Ultimately, I think Congress shares a lot of blame
I don't disagree with your premise that the CWA didn't intend to regulate every single piece of wet soil. Quite simply, the logistics involved would be ridiculous and in no way justified. But when the CWA is written with very little guidance or specificity, it falls on the courts to interpret the statute decades later, when "what we meant to say in 1972" isn't all that clear anymore. That's how you get confusing terms like "significant nexus" that are supposed to make the connections between waters of the US clear. What the hell does that mean? And given that every action taken by EPA gets sued by both greens and industry (plus usually states and others for good measure), it inevitably ends up in the circuit court lottery and you get a mish mash of responses that end up driving policy over decades of back and forth, appeals, related suits/regs, etc.
I spent nearly 2 decades in consulting for EPA and a great majority of my time was on litigation-driven regulation development. It's not the optimal way to craft policy, but it's what they were handed.
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In response to this post by Simeon)
Posted: 04/04/2018 at 3:32PM