Beveridge & Diamond
 

Water Supply and Quality - Land Use

Overview

Beveridge & Diamond, P.C.’s Water Supply and Quality Practice focuses on the growing convergence between water supply, use and quality issues. 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. This Practice assists our clients in meeting the challenges and capitalizing on these opportunities -- during project planning, in stakeholder  and permit negotiations, and ultimately in litigation. 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. Our substantial expertise under the CWA and other federal laws, our long experience representing developers and industry on land use issues, and our extensive knowledge regarding agricultural chemical regulation under FIFRA provide us with the substantial resources necessary to help our clients achieve their objectives in this rapidly evolving environment.

Full Description

The water law practice at Beveridge & Diamond involves working with clients to address the many traditional and non-traditional ways in which water supply, water rights, land use and water quality are converging in regulatory, political and courtroom arenas. The focus of our practice is strategic planning, permitting, and litigation where the many roles of water in our society come into conflict.

The 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. Even 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.

As an example, under the competing pressures of water quality, land use and preservation of species and habitat, agriculture’s historic exemption from point source regulation under the Clean Water Act (CWA) is being whittled away through litigation, federal and state regulatory initiatives, and the expansion of USDA programs encouraging environmentally sustainable farmland uses. Legal precedent now exists in some jurisdictions for treating certain kinds of agricultural activities as subject to the reach of the CWA’s permitting and limitations programs and for addressing such activities through the Total Maximum Daily Load (TMDL) program. 

Similarly, land use and development, long unaffected by traditional point source regulation under the CWA, is increasing subject to quality and water use requirements imposed under the CWA, federal and state coastal protection and wetlands preservation laws, and a myriad of zoning, economic development and ecological protection requirements. Focused attention of watersheds and the connection between land uses and the quality of coastal and ocean resources will only increase.

Beveridge & Diamond assists our client in navigating this ever-changing landscape of regulatory and political demands concerning water use and water quality. Assessing regulatory options and exposure in the area of water use, supply, and quality has become a critical element affecting key business decisions about where, how and whether to locate or expand industrial and other development activities. Typical issues that our lawyers help clients address include siting and environmental review considerations involving water supply and discharge, mitigation of construction and development impacts on wetlands and other water resources, management of runoff and sediments,  coastal habitat preservation, and water quality trading opportunities.

Representative Matters
Representative Matters

We are actively involved in this important emerging area of law and regulation.  Our experience includes:

  • Conferring 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.
  • Representing 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.
  • Working 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.
  • Routinely 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.
  • Working with developers to obtain approval of new land uses that optimize both water supply and water runoff quality.
  • Counseling 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.