WASHINGTON, Jan. 12, 2017 - Getting rid of the “waters of the U.S.” rule may be more difficult than WOTUS opponents hope, top lawyers for the federal government said just days before the end of their tenures.
The rule, published in May 2015, has never been put into practice. Courts stayed its implementation shortly after it was finalized. Briefing is currently taking place in the Sixth Circuit Court of Appeals in Cincinnati, which presumably will schedule arguments on the matter at some point.
Some attorneys have suggested that the new administration would file a motion with the court to hold the matter in abeyance – essentially, put it on hold – while a new regime at EPA and the Army Corps of Engineers reconsider the merits of the rule and issue a new proposal.
But two experienced government lawyers who spoke at a D.C. Bar function today told Agri-Pulse after their presentations that repealing WOTUS would likely take a while.
John Cruden, assistant attorney general for environment and natural resources at the Justice Department (DOJ), said the court “would probably be reluctant to allow the agency to reconsider” WOTUS because, at this point, the rule is the law of the land – and besides, it’s already on hold.
When it comes to agency rules, Cruden said of DOJ’s role, “We defend it until the agency does something to change it.”
And Avi Garbow, general counsel at EPA for the past eight years, said that while “it’s in the range of possibilities that (DOJ) files a motion to stay the course” while EPA reconsiders the rule, he added, “As difficult as it is to turn the ship of government, it’s more difficult when things are in litigation.”