Water, water everywhere

and all of it regulated. The dustup over a proposed rule by the EPA and USACE to define the scope of water regulated by the Clean Water Act has attracted my interest for some time. Congress has now weighed in.

Congress recently passed the "Waters of the United States Regulatory Overreach Protection Act of 2014", which effectively bans the EPA and USACE from using the proposed rule in any way, and directs the agencies to go forth and consult with the States and report back in 12 months. Wait. Um. They already DID consult to get to the current proposed rule. What gives ... the devil is in the details. This time Congress has stipulated that everyone must agree with the rule:

Consensus requirement.--The Secretary and the Administrator may include a recommendation in the draft report only if consensus has been reached with regard to the recommendation among the Secretary, the Administrator, and the State and local officials consulted under subsection (a).

Ahh, consensus. What a wonderful thing. A Kum-ba-yah moment. Unfortunately it is the same as saying "don't bother". Because you're never going to get consensus on this issue, or indeed anything that involves serious trade-offs between competing interests.
This bill came to my attention because of a blog post by someone involved in the habitat restoration community. "Kirk River Mud" makes some good points, for sure. Regulating concrete ditches as similar to ephemeral wetlands sounds like bureaucracy gone mad. I'm not enough of a legal expert to tell whether the new rule would help resolve some of those issues or not. I did find it interesting that Kirk thinks the bill passed in a "bipartisan" fashion. To me that suggests that yeahs and nays were equally distributed across the parties, but apparently that's not the case! All it takes is some Democrats to agree, and wham! Bipartisanship rules!