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 6th 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.”

Cruden said that in order to shift direction, EPA and the Corps would need to propose to suspend or withdraw the rule, consider comments on that proposal, and make a final decision. Then, the agencies would have to start the rulemaking process all over again. Then the new rule would be subject to litigation.

One lawyer at the D.C. Bar session, American Rivers President Bob Irvin, said the WOTUS situation “seems remarkably similar to the Roadless Protection Rule,” a regulation passed near the end of the Clinton Administration to protect national forest lands. It was fiercely opposed by Western lawmakers, timber companies, recreationists, and the George W. Bush administration.

“After 11 years of litigation, the rule was upheld and remains in place today,” Irvin said.

In general, Cruden, Garbow and USDA General Counsel Jeffrey Prieto advised their successors

to respect and trust the professional lawyers and staff who will be working for them.

“People matter,” all three said during their presentations.

Garbow and Cruden both spoke of the importance of the legal process, as embodied by the Administrative Procedure Act and its interpretation by the courts.

“By and large, what really counts going forward is the statutes and the courts,” Garbow said.

In the federal government, he said, there’s “a tremendous stability that may surprise folks.” Part of that is because the way regulations are generated “has been well established for decades.”

More important, he said, is that although administrations change, “with rare exceptions, statutes do not.”

Prieto touted USDA’s achievements, citing the number of people who have benefited from billions of dollars in grants to improve rural water infrastructure or help them gain access to high-speed internet service. He also praised the expertise of his staff. “They are the best at what they do,” he said.

Noting that “USDA is in many ways the face of the fed government in rural America,” Prieto also said he was “not entirely sure why we are last in line” to get a nominee to lead the department.

Cruden was blunter. “I am quite surprised that we do not have a nominee for secretary of agriculture,” he said.

Commenting on the direction of the soon-to-be Trump administration, Cruden said it would be difficult to discern until all the political positions – assistant administrators, deputy secretaries and the like – are filled. “Until we have all those individuals in place, we’re really not going to know about that administration,” he said.


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