Water Rights and Discharge Permits
We assist clients in negotiating the requirements designed to ensure authority to pump or divert water resources. In the Southwest, we assist clients in complying with applicable surface and groundwater codes, assured water supply requirements, and the Law of the Colorado River in connection with real estate development projects, ranching, mining, and other land uses. We assist clients in navigating projects to avoid unanticipated water rights and permitting issues, with a particular emphasis on proper maintenance and conveyance of water rights and permits as applicable. In the Midwest, we have counseled clients on issues related to water withdrawals and diversions under the Great Lakes Compact. For over 30 years, we have continued to represent clients on cutting-edge issues arising under the Clean Water Act, including the negotiation of direct and indirect discharge permits, administrative and judicial litigation relating to those permits, and the defense of governmental and third-party enforcement actions. Whether the matter involves technical issues, such as derivation and calculation of water-quality-based effluent limitations, or broader policy concerns, our lawyers assist clients in their efforts to address these critical issues.
- Determining the status of water rights, wells, and withdrawal authority in transactional due diligence, and ensuring proper conveyances of water rights upon real property transfers.
- Arranging and drawing up agreements for the purchase or lease of water rights as needed to support diverse commercial and residential development projects.
- Assisting clients in achieving compliance with water use reporting requirements, responding to notices of violation and handling the intricacies of local water law, especially in Arizona, where water use is often heavily regulated.
- Coordinating successful applications for certificates of assured water supply in complex situations.
- Assessing the potential impacts to clients of proposed water rights settlements with Indian tribes.
- Advising clients on issues related to the Great Lakes Compact and water withdrawals and diversions, including the registration of existing withdrawals.
NPDES Discharge Permits
- Obtaining and successfully defending a NPDES wastewater permit for a 1260 MW electric generating facility. The permit was attacked on a number of grounds, including allegedly deficient permit terms related to antidegradation requirements, the thermal load and mercury discharges. The challenges were all rejected in administrative and judicial review proceedings.
- Assisting clients in obtaining “316(a)” thermal variances which require a demonstration that the discharges were protective of a balanced indigenous aquatic community.
- Continued representation of clients on issues related to 316(b) “Best Technology Available” determinations for both new and existing water intake structures under both federal and state law.
- Obtaining one of the first mercury variances ever approved under the Great Lakes Water Quality Initiative. Prompt approval was obtained from both EPA and state regulatory authorities, allowing a construction project to stay on schedule.
- Representing a client in seeking modification of its wastewater discharge permit, allowing it to continue to use treated effluent from a local municipal treatment plant as the source of the plant’s cooling water. The project raised complicated legal and technical issues related to the allocation of discharge capacity, but it is touted by state officials as one of the leading examples of innovative water conservation measures.
- Defending a number of clients from threatened citizen suit actions. In the vast majority of cases, prompt defense action resulted in the suits never being filed.
- Representing the regulated community’s interests on an number of advisory committees convened by state environmental agencies to implement new regulatory initiatives. Some of the matters addressed by these committees included the development of rules related to the discharge of bioaccumulating chemicals, mercury and chlorides.
- Working with an ad-hoc group of industrial and municipal interests to develop a legislative proposal providing an opportunity for phosphorus dischargers to participate in a state-wide variance. The proposal was signed into law in April 2014.
- Representing clients in the complex and ever changing regulation of wetlands--from delineation through permit issuance.
- Counseling clients regarding available mitigation strategies, including the purchase of wetlands credits at wetlands bank.
- Representing a client in the creation and regulatory approval of an on-site mitigation bank.
- Assisting clients in obtaining non-jurisdictional determinations to avoid wetland and public trust doctrine implications.
- Defending clients against threatened enforcement actions associated with stormwater and erosion control regulations and permits.
- Assisting clients with preparation and review of stormwater management plans.
- Counseling clients during conceptual phase of projects to streamline permitting process.