B&D helps clients develop strategies to get ahead of, or contend with, the reality of water quality developments that increasingly lead to stringent regulatory requirements and associated exorbitant treatment costs. We represent clients in permitting actions to ensure that water quality protections, which are invariably based on multiple layers of conservative assumptions and estimates, are not imposed or enforced at the expense of reasonable business operations.
More specifically, the Clean Water Act (CWA) and state law counterparts contain specific frameworks for establishing water quality protections. Because the water quality provisions of the CWA allocate important responsibilities to EPA and states, our deep understanding of and experience with how and when these provisions apply is a tremendous asset to our clients facing stringent water quality requirements in NPDES permit renewals or new source permits. We have experience working with the complex tools available to guard against or change stringent water quality effluent limitations once imposed. This includes developing and defending variances and use attainability analyses; application of state anti-degradation policies and requirements; application of anti-backsliding regulations; developing and implementing strategies to modify technical assumptions used to develop a water quality effluent limit; and other tools available to contend with strict water quality standards.
We advise on:
- Water quality standards
- Criteria, anti-degradation and use designations
- Use attainability analyses
- Water quality certifications
Select Representative Work
- B&D developed a comprehensive economic variance application to address a stringent water quality based limit, in a case of first impression in the state with permitting authority. The variance application led the parties to develop alternatives for future permitting for the affected parameter.
- B&D has helped multiple industrial clients either obtain a different water quality based effluent limitation through technical studies submitted before or after permit issuance, that impact one or more parameters used by permitting authorities in complicated mathematical formulas used to develop numeric limits based on default assumptions in the absence of data.
- B&D works with clients to develop strategies to comply with or modify overly stringent water quality effluent limitations during a permit’s typical three-year compliance schedule, or to develop technical impossibility defenses that can lead to permit modification or other resolution.
- B&D has assisted clients with compliance strategies for stringent water quality limits placed on discharges that involve solely or primarily groundwater remediation streams or stormwater discharges impacted by historic chemical use.
- B&D negotiated with state and federal regulators to improve a water quality criterion default to allow a higher value while continuing to protect water quality.
- B&D negotiated with EPA to revise TMDL limits for total nutrients and total phosphorous and to implement a water quality trading agreement between an industry discharger and the local publicly owned treatment works (POTW).
- B&D led a technical challenge to EPA-issued TMDL for metals that incorporated multiple unsupported safety factors resulting in unnecessarily stringent waste load allocations.
- B&D partnered with a local POTW in support of a client’s local political efforts to effectuate changes in compliance dates for stringent new water quality-based limits for chloride, TDS, and sulfate.
- B&D secured beneficial permit terms for two refineries, each with its own Texas Pollutant Discharge Elimination System (TPDES) permit, resulting in new water quality-based limits including lead, cyanide, and nutrients, as well as separate stormwater general permit requirements.
- B&D represented 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.
- B&D successfully defended a major global manufacturer, and one of several defendants, resulting in the ruling that our client had no responsibility under the Massachusetts equivalent of the federal Superfund law for the $12 million cleanup of PCBs that had been discharged into the Mother Brook waterway in Massachusetts. We also successfully represented the client on appeal in the U.S. Court of Appeals for the 1st Circuit.