Edited by Chane Polo
As most people are aware, in June of 2015, the Obama administration issued a final rule entitled "Clean Water Rule: Definition of 'Waters of the United States,'" also known as the WOTUS rule. The Colorado Water Congress and the National Water Resources Association, along with many other water organizations and other public and private entities, had filed extensive comments on the draft rule. The final version of the rule did reflect some modifications made in response to those comments, but failed to address all concerns, including those related to the future treatment of ditches and canals, the automatic treatment of "all" tributaries as jurisdictional, the elimination of isolation determinations, and the use of the "aggregation" concept relative to similarly situated waterbodies in a basin. Upon issuance, the rule was immediately the subject of numerous court challenges in both federal district courts and courts of appeal.
In the meantime, the various court challenges have been consolidated in the Sixth Circuit Court of Appeals. That court has not yet reached the point of hearing the merits of the case, but has instead been dealing with procedural issues. Specifically, it is determining whether the rule challenges belong in the district courts or the courts of appeal. This "procedural" question has now been appealed to the U.S. Supreme Court. Despite Department of Justice arguments that the Supreme Court should not hear the case because of the pendency of the new administration actions as noted above, the Court has decided to rule upon the question. This could further complicate the situation depending upon how the Supreme Court rules and how quickly the agencies act in the interim.