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More than 40 years after Congress passed the landmark Clean Water Act, the jurisdictional reach of that statute remains a contentious legal and political issue. By prohibiting the discharge of pollutants to “navigable waters” without a permit, the Act expressly limits its protections to “navigable waters.” The statute defines “navigable waters” as “waters of the United States,” but fails to define that latter term. Congress’ omission led to more than three decades of federal rulemaking and Supreme Court litigation, which has yet to clarify this critical jurisdictional issue.

In their latest rulemaking effort, the United States Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (Corps) released the “Clean Water Rule” on May 27, 2015, offering their most recent interpretation of “waters of the United States.” The validity, scope and impact of the Clean Water Rule remain heavily disputed, and the rule is expected to trigger judicial challenges and possibly a legislative response from Congress (including S. 1140 and H.R. 1732). In the meantime, the regulated community must make sense of this complex rulemaking, estimated by some to affect as much as 60 percent of the land in the United States.

Greenberg Traurig has closely followed regulatory, legislative, and judicial developments involving the “waters of the United States” issue to assist our clients with meeting their Clean Water Act obligations. We continue to do so by offering the following analysis of the Clean Water Rule.

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Photo of Michael Cooke Michael Cooke

Board Certified in State & Federal Government and Administrative Practice, Michael G. Cooke concentrates his practice in administrative law, including environmental, utility, and land use law. He represents industrial, agricultural, banking, government, and developer clients on matters involving clean air, climate change, electric…

Board Certified in State & Federal Government and Administrative Practice, Michael G. Cooke concentrates his practice in administrative law, including environmental, utility, and land use law. He represents industrial, agricultural, banking, government, and developer clients on matters involving clean air, climate change, electric generating facilities, renewable energy, telecommunications, utility plant and transmission line siting, water, and wastewater issues and permitting and zoning matters.

From 2003 to 2006, Michael was the Director of the Division of Air Resource Management for the Florida Department of Environmental Protection. In this position, he managed the air quality program for the State of Florida, interacting with federal and local agencies and over-seeing permitting and enforcement matters and the development of state air regulations. Michael also served as General Counsel for the Florida Public Service Commission in Tallahassee from 2006 through 2008. His responsibilities at the Public Service Commission included conduct of rate cases, rulemaking, enforcement proceedings, and decision-making involved with policy issues regarding nuclear facility site cost recovery and renewable energy.

Michael has represented clients in connection with numerous environmental regulatory matters, particularly in air permitting and compliance issues. He has represented electric utilities, manufacturing, and agricultural entities in connection with various Title V and New Source Review matters. He is well versed in CERCLA, RCRA, TSCA, water, and solid waste matters.

Photo of Kerri Barsh Kerri Barsh

Kerri L. Barsh is Co-Chair of the firm’s Environmental Practice and represents public and private clients on an array of environmental regulatory, permitting and litigation matters, including transactional support and due diligence, environmental assessment and liability matters, climate change, energy and infrastructure projects,

Kerri L. Barsh is Co-Chair of the firm’s Environmental Practice and represents public and private clients on an array of environmental regulatory, permitting and litigation matters, including transactional support and due diligence, environmental assessment and liability matters, climate change, energy and infrastructure projects, wetlands and coastal permitting, complex land use projects, air quality matters, hazardous materials contamination, and other compliance and enforcement cases. Kerri is a member of the firm’s Executive Committee.