Water Quality & Infrastructure
Our Clean Water Act (CWA) practice develops creative, strategically tailored solutions to challenges posed by the nation’s clean water laws. In particular, we focus on the growing convergence between water supply, use and quality issues. We help clients navigate this dynamic by providing strategic advice and ongoing support during project planning, in stakeholder and permit negotiations, and in litigation and enforcement proceedings.
substantial expertise under the CWA and other federal laws and our long
experience representing developers, industry and local governments on land use
issues, provide us with the substantial resources necessary to help our clients
achieve their objectives in this rapidly evolving environment. Because these issues often arise in novel
settings involving complex political relationships as well as arcane and
sometimes competing legal constructs, a steady and experienced hand is
especially important in this practice area.
Water: A Strategic Resource
demand for unlimited quantities of high quality water is great and
growing. Obtaining, securing, conveying,
treating and delivering water have never been greater challenges than they are
today. Water use and supply,
historically addressed as regional issues of resource allocation and land use,
are increasingly affected by federal regulatory considerations such as water
quality under the Clean Water Act and species management under the Endangered
Species Act. Challenges and
opportunities in the Water Supply & Quality arena arise from numerous
sources, including TMDLs and water quality trading, habitat and ESA
requirements, competing demands for scarce water resources, agricultural and
forestry water management practices, water storage, transfer and conveyance
rights, wetlands preservation and mitigation, and the watershed-based planning
and permitting process.
after water rights are obtained, transporting the water and regulating its
quality and use is subject to increasing regulatory scrutiny. Strategic
planning to ensure necessary water supply and allowable uses is increasingly
critical for the manufacturing, agriculture and development industries as well
as public water supply and treatment authorities.
advice and regulatory counseling
with compliance management programs
or suppression of EPA rulemakings
in enforcement actions and criminal proceedings
in administrative litigation, as well as citizen suits and other contested
proceedings before federal and state agencies and in the courts
several municipal water systems across the U.S. on EPA’s “wet weather”
enforcement initiative and on the upgrading and development of municipal water
infrastructure. Most recently, we
assisted the San Antonio Water System to negotiate a $1.1 billion Clean Water
Act Consent Decree.
counseling direct discharge clients regarding the many ways, such as water
quality trading and non-traditional permitting mechanisms, in which they can include agricultural and
urban stormwater runoff nonpoint sources in discussions and allocations under
the TMDL and watershed-based permitting frameworks in order to distribute the
burden of ensuring required water quality among all contributors.
with industry, water infrastructure managers and developers to obtain approval
of new land uses that optimize both water supply and water runoff quality.
clients on strategic planning for water use and waste discharge permits by
assessing current and future water resources, permit opportunities and
limitations, competing and complementary uses, and water quality constraints.
with the agricultural chemical industry and representing individual producers
of agricultural chemicals in regulatory arenas where states seek to impose
CWA-based permits on the application or any subsequent environmental transport
of registered pesticides or their breakdown products.
the aquatic recreation industry in proceedings designed to establish the proper
means of assessing and addressing any in-stream impacts relating to the use of
federally-registered pesticides in anti-fouling bottom paints.
with trade groups, interstate associations and industry to quantify the
benefits of agricultural and stormwater Best Management Practices so these
benefits are recognized and fully accounted for in watershed-based planning and
permitting and in TMDL processes.
the voluntary withdrawal of a total maximum daily load (TMDL) for a major,
multi-jurisdictional waterbody on behalf of a coalition of 17 large industrial
and municipal clients. The TMDL, developed by an EPA Region, relied upon a
flawed model and incomplete data to set unrealistic (and probably unnecessary)
goals for nutrient reductions. Teaming with the State, we convinced the federal
agency to withdraw its TMDL rather than litigate the validity of a nutrient
model that EPA was preparing for use nationwide. EPA agreed to adopt an
adaptive management approach that will allow its science and data to mature,
while also allowing non-point source initiatives time to remedy the underlying
nutrient problem and eliminate the need for further reductions by point
favorably one of the first citizen suits brought under the Clean Water Act. The
case broke ground on the use of a Special Master as a mediator in private
environmental enforcement actions – a technique that allowed us to ground truth
plaintiffs’ more exaggerated claims and arrive at a realistic package of
measures that could be undertaken without the need for costly and definitive
litigation. This technique has become a part of the standard toolkit for those
addressing the rising tide of private enforcement actions.
with EPA to defer a multibillion dollar rulemaking by conceiving and securing
adoption of the first internationally-applicable environmental standard for a
commercial chemical product. Uncertain of the composition of this chemical
product, EPA threatened to develop a new effluent guideline to control
discharges from the industry in which it is utilized – our client. Recognizing
that the chemical product’s manufacturers could not release their proprietary
product formulations, we approached a private standards organization to develop
a toxicity performance standard applicable to all products of this type. That
innovative standard, which remains in force, effectively limits the toxicity of
the chemical product, has resulted in a reduction of more than 150% in the
toxicity profile of the products now on the market, and has eliminated a major
source of the Agency concern about discharges from our client industry.