B&D’s work on behalf of municipalities and public utilities operating water, wastewater, and stormwater systems has long been a backbone of our Water practice. This work spans regulatory counseling, enforcement defense, and litigation, and includes the negotiation of wet weather consent decrees with EPA and DOJ, defense of tort litigation and enforcement actions including citizen suits, and development, negotiation, and defense of National Pollutant Discharge Elimination System (NPDES) permits.
We have secured and upheld in appellate courts favorable consent decrees for municipal wastewater systems and municipal separate storm sewer systems (MS4s) faced with regulatory enforcement actions brought by DOJ and state agencies and favorably settled enforcement actions and citizen suits coast to coast.
This experience gives our lawyers a deep understanding of the unique legal, political, and financial issues facing municipalities and public utilities and the ability to provide best-in-class regulatory counseling and advocacy for our clients.
Select Representative Work
- B&D represents the City and County of San Francisco in the defense of a federal combined sewer overflow (CSO) enforcement action and in permitting proceedings concerning San Francisco’s collection and treatment systems.
- B&D successfully represented the City of Newark in defense of a federal citizen suit under the Safe Drinking Water Act (SDWA) (and the associated Lead and Copper Rule) brought by the National Resources Defense Council (NRDC) after Newark allegedly exceeded the federal lead action limit on lead in drinking water in 2017. This lawsuit sought wide-ranging relief valued at $70 million annually or more, including citywide bottled water delivery and replacement of lead service lines.
- B&D filed an amicus curiae brief on behalf of the National Association of Clean Water Agencies (NACWA) in County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020), a major case concerning the scope of the Clean Water Act (CWA). The City of New York, the City and County of San Francisco, and the Metro Wastewater Reclamation District (serving metropolitan Denver) joined the brief, which Justice Alito cited in his dissenting opinion.
- B&D secured a $1 billion, 12-year Sanitary Sewer Overflow (SSO) consent decree for the San Antonio Water System involving various SSO reduction measures including focused inspection, cleaning, and testing of pipe in the sewer collection system and targeted capital programs focused on SSOs caused by verified condition and capacity issues.
- B&D defended the Washington Suburban Sanitary Commission (WSSC) in a CWA citizen suit alleging unlawful discharges of pollutants from WSSC’s Potomac Water Filtration Plant. The suit was resolved through a consent decree that provided WSSC with certainty regarding material terms of its first new NPDES permit for the facility since 1997 and a 10-year schedule for improvements to the plant.
- B&D assists the municipality of New Bedford, MA, to address obligations under multiple CWA programs consistent with an Integrated Plan, which will prioritize expenditures for CSOs, publicly owned treatment works (POTW) upgrades for nitrogen removal, infrastructure protection, and MS4 compliance. This involves working with EPA Region 1 to develop cost-effective alternatives to numeric nitrogen limitation, including the optimization of the existing POTW, selective targeting of high rate nutrient and BOD sources, and development of local limits that effectively control nitrogen loading of the POTW without reliance on nitrogen limitation in the POTW’s NPDES permit.
- B&D achieved a major victory over the Natural Resources Defense Council, the Sierra Club, and others who sought in a CWA citizen suit challenge to overturn the approval of the Metropolitan Water Reclamation District of Greater Chicago’s $3.7 billion CSO Long-Term Control Plan (LTCP). The case was affirmed unanimously on appeal to the U.S. Court of Appeals for the 7th Circuit.
- B&D developed and helped implement an advocacy strategy and white paper for NACWA that persuaded EPA to reject an NGO petition to establish effluent limits for nutrients as part of the CWA’s secondary treatment program for POTWs. B&D also represented NACWA in a successful administrative challenge involving petitions to force EPA to override state action on nutrient water quality issues.
- B&D secured a CSO consent decree covering the Albany Pool Communities (APC), a group of 6 municipalities and two sewer districts that banded together because a collective solution was more cost effective than individual CSO LTCPs. We developed and implemented a governance structure to help the communities manage work and share costs, a solution that received praise by the New York State Department of Environmental Conservation and the Hudson Riverkeeper. The APC’s regional effort resulted in approval of an LTCP valued at $130 million instead of the $700+ million program that the State originally sought.
- B&D provided expert assistance to litigation counsel during the complex negotiation and litigation relating to the City of St. Louis/Metropolitan St. Louis Sewer District’s LTCP. The final outcome of that collaboration was an LTCP and a consent decree that saved over $900 million in costs and included an historic green infrastructure program that promises to spawn a rebirth of blighted areas of downtown St. Louis.