Water Quality, Wetlands, Groundwater, and Drinking Water

Our Lawyers have encyclopedic knowledge of the federal Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA), and analogous state laws and programs, which make up the primary legal framework for the regulation of surface water quality, wetlands, groundwater, and drinking water. This knowledge is married with a practical understanding of how these authorities are implemented and enforced, which is based on experience as former lawyers with the US Environmental Protection Agency (EPA), the US Army Corps of Engineers (Corps), and state environmental protection agencies. On these issues, our lawyers represent electric utilities, mining and mineral processing facilities, manufacturers, agriculture, oil and gas companies with upstream, midstream and downstream operations, real estate developers, and municipal governments.

The core legal services we provide our clients include:

• Strategic thinking and advice
• Compliance counseling
• Permitting
• Participation in agency rulemaking and associated litigation
• Defense against agency administrative, civil or criminal enforcement and citizen suit enforcement

Water Quality. Surface water quality is primarily regulated by the CWA and state laws and programs, notably through the National Pollutant Discharge Elimination System (NPDES) permitting program. Our lawyers have experience navigating complex and novel compliance, permitting, and enforcement matters under the CWA. We are immersed in the most controversial and trending issues, including the Navigable Waters Protection Rule establishing the definition of “waters of the United States” and the new regulation of State authority under CWA Section 401 for water quality certifications. Our lawyers also have experience with the Oil Pollution Act of 1990, which amended the CWA, and the associated Spill Prevention, Control, and Countermeasure (SPCC) and the Facility Response Plan (FRP) regulatory program.

Wetlands. The regulation of wetlands is primarily performed by the Corps through implementation of CWA Section 404. Clients across sectors rely on our lawyers to obtain the necessary authorizations when they embark on the construction of projects, whether it is an interstate pipeline, infrastructure associated with extractive industries, or a highway or housing development. Our experience can be broken down into the Corps’ Regulatory Program and the Civil Works Program.

Regulatory Program. Our lawyers have been involved in all major Corps and EPA rulemaking involving wetlands and the Corps’ Regulatory Program, including Section 408 of the Rivers and Harbors Act. We work with clients on projects beginning with the application process through receipt of final agency approvals. Our lawyers work with clients to prepare the underlying National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and National Historic Preservation Act and other consultations and analyses necessary for permitting. Our goal is to ensure permitting materials are prepared with an eye towards litigation, thus ensuring a strong, defensible administrative record. We are aware of the potential challenges our clients face and we have a proven record of accomplishment working collaboratively with DOJ, among other federal agencies such as the Federal Energy Regulatory Commission (FERC), the US Bureau of Land Management, the US Fish and Wildlife Service, and the US National Park Service (NPS), to defend agency permits and authorizations in federal litigation. Our litigation experience on these issues include high profile, complex cases involving the Corps and other federal licenses and authorizations associated with wetlands and infrastructure projects. This litigation in district courts, US Courts of Appeals, and the US Supreme Court involved complex and novels issues under the CWA, NEPA, ESA, the Administrative Procedure Act and other federal environmental and natural resource statutes.

Civil Works Program. Our lawyers have represented numerous clients on civil works project-related issues across the country. We represented landowners, for example, successfully challenging a Corps plan to construct flood control facilities in Miami as part of the Everglades restoration. We have represented a California city seeking to remove Corps oversight of a flood control channel and successfully convinced the Corps to seek the deauthorization of the facility in federal legislation. We also have experience guiding numerous clients through a number of projects involving the Corps and natural resource agencies.

Groundwater. Groundwater is regulated through a combination of federal and state authorities and our lawyers have experience understanding and advising clients on managing risks under federal and state law associated with the intentional or accidental release of pollutants into groundwater. Notably, we represented the defendant in the County of Maui litigation that reached the US Supreme Court, which established a new legal standard for when a “functional equivalent” discharge into groundwater would be regulated by the CWA. Now we are at the vanguard in litigation throughout the US defending clients and defining the meaning of this new “functional equivalent” standard in the real world. We also have experience counseling on state-specific prohibitions and programs related to the release of pollutants into “waters of the State,” which most often will include groundwater.

Under the SDWA, our lawyers have experience counseling clients on permitting and authorizations associated with the Underground Injection Control (UIC) regulatory program.  Our lawyers understand the relationship between the CWA and the SDWA and other federal and state authorities that address groundwater contamination, site cleanup and remediation, for example, the Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Further, we have a deep bench of lawyers who specialize in toxic tort litigation associated with alleged groundwater contamination. Relatedly, we have an interdisciplinary team focused on per- and polyfluoroalkyl substances (PFAS) and risk management and associated litigation in the context of groundwater drinking water.

Drinking Water. Our lawyers have experience advising clients on compliance related obligations under the SDWA associated with drinking water and associated private and public infrastructure. We have engaged with EPA on the establishment of National Primary and Secondary Drinking Water Standards. Notably, we have experience advising clients on the implementation and risk management associated with the lead and copper regulation.