Water Quality and Wastewater

In today's regulatory climate, anyone planning to use or develop land, manufacture goods or possibly create wastewater through other activities must understand if and how their actions will affect water quality. Creating additional challenges, the interplay of applicable federal, state and local laws is more complex than ever. Troutman Sanders’ water quality practice has significant experience providing counsel in matters arising under the Clean Water Act (CWA), Safe Drinking Water Act, and other federal, state and local environmental and land use laws. We represent clients from a wide variety of industrial sectors, business organizations and municipalities.

Several of our attorneys are former officials or counsel for environmental regulatory agencies; these include a former deputy general counsel for the U.S. Environmental Protection Agency (EPA) and a former water official at the Virginia Department of Environmental Quality. Our team also includes former counsel for environmental agencies or state attorneys general, where they were responsible for overseeing enforcement litigation, permitting, and the development of agency policies and practices in the water law arena.

Natural Pollutant Discharge Elimination System (NPDES)

We have extensive experience in all aspects of Natural Pollutant Discharge Elimination System (NPDES) permitting under the Clean Water Act, including state permitting programs authorized under the act. We provide creative, cutting-edge water permitting solutions that work for our clients and comply with the increasingly stringent NPDES requirements.

New issues — and a new focus on old concerns — now require novel solutions, a wealth of practitioner experience, and knowledge of the many inter-related water programs. We have practiced before most of the EPA regions and dozens of authorized states, and have been involved in every aspect of wastewater permitting.

Water-Quality-Based Permitting

Increasingly, NPDES permits require more stringent water-quality-based effluent limits (WQBEL) and antidegradation review. The EPA and each state set water-quality permit limits in significantly different ways depending on the pollutant. Our attorneys understand these issues well. Several of our team members have worked for state and federal permitting agencies and have been involved with the development of policy and regulation of pollutants in water-discharge permits.

We have assisted major paper companies in achieving favorable permit limits, including variable limits based upon real-time flows in the receiving stream to meet water-quality standards. We also help explore permitting authorities' bases for changing permits, resulting in more tailored permit conditions and more reasonable monitoring requirements.

Safe Drinking Water Act (SDWA)

We counsel clients on Safe Drinking Water Act (SDWA) issues related to sampling, the provision of alternative water supplies to affected residents, and maximum contaminant levels. These include risk assessments, fate and transport data, and information used in maximum containment level (MCL) development.

One of our attorneys was the lead counsel in the EPA's Region 4 for SDWA actions. This experience allows our firm to readily advise clients on compliance matters. We have advised a major Florida drinking water provider in various permitting and compliance issues, have represented community waterworks in non-compliance actions, and have spoken to the Virginia Chapter of the American Planning Association on the impact of state law on source-water protection.

WER and WET

Rigorous, expensive and highly variable water-effect ratio (WER) and whole-effluent toxicity (WET) conditions increase risk of non-compliance. Adjustments to WER- and WET-monitoring requirements can ease burdens and compliance risks for companies. We have experience in the pitfalls of WER and WET, including the variability found in many of the testing mechanisms, and our professionals assist clients in implementing these technical permit conditions.

Variances, Site-Specific Criteria, Mixing Zones

Nationwide, variances, site-specific criteria and mixing zones have been applied to resolve particularly difficult water-quality problems. Our attorneys can help clients plan for all of these issues, efforts that will be increasingly necessary in future water-quality-based permitting.

Total Maximum Daily Loads (TMDL)

Anticipating how TMDLs will affect your discharge requires more than a comprehensive knowledge of water-quality standards. Companies must also take into account NPDES permits and the scientific basis for the classification of their receiving water, or 303(d) list. Additionally, unique judicial schedules for TMDL development are in place in many states.

We help our clients determine when and if TMDLs will affect their discharge, and develop a strategy to meet their objectives within the confines of the calculation. We have extensive experience in TMDL development and litigation nationwide, with a special focus on water issues in the southeastern states.

Water Classification

Many waters are mistakenly classified or deemed impaired based upon little or no data. We regularly review water classifications, such as 303(d) lists, which can be adjusted or changed altogether with the right scientific and legal information.

Treatment Technology

Stricter standards require expensive technology that takes time to install. Our attorneys use a range of available legal vehicles and options to help our clients obtain the time necessary to complete their projects.

Permit Negotiation

Regulators are increasingly inserting "boilerplate" permit conditions that are not required by law and increase the risk of non-compliance. Such risks are exacerbated if this language becomes standard in future permits due to anti-backsliding provisions. Examples include some watershed assessment and ordinance requirements.

Knowledge of the source of these provisions and their impact is necessary to ensure that unnecessary conditions are not allowed to create a compliance problem.

Sample representations include the following:

  • Resolved a complex discharge problem using real-time monitoring and flexible conditions.
  • Litigated appeals and administrative challenges to NPDES permits.
  • Provided legal counsel regarding water-quality issues relating to toxics, carcinogens, nutrients, effluent guidelines, state water-quality standards and criteria, and discharges from Superfund sites.
  • Advised clients regarding interpretation of narrative water-quality criteria.
  • Drafted agreements addressing multi-owner/operator situations in the context of stormwater, reducing the regulatory burden of multiple permits and the associated legal risk.
  • Represented a large international paper company in seeking a variance negotiation from the state of North Carolina for an interstate river.
  • Represented electric utilities regarding appropriate sampling-point locations for various issues, including thermal variances under Section 316(a) and aquatic impacts of discharges.

Special-Resource Issues

Regulators are increasingly interpreting longstanding water laws in a new way as a protective device for resources, habitats and wildlife. The days are long gone when a technology limit adopted directly from a published regulation ensured compliance. Today, water quality can even include protection of species. When issues arise regarding the interpretation of water-quality standards, species protection (endangered, threatened or of concern) or habitat alteration, we help our clients strategize options that help them meet their project needs in this new regulatory arena.

Stormwater

Stormwater enforcement historically focused on facilities failing to obtain coverage or report. But stormwater discharge goals are increasingly being turned into enforceable discharge limits. Stormwater monitoring is particularly challenging and consistent results are difficult to obtain. We help our clients understand and address compliance issues in this area while maintaining focus on meeting the company’s needs and objectives.

Pretreatment

Pretreatment programs, long-ignored, can subject a discharger to liability and expense due to deficiencies or the introduction of pollutants causing pass-through or interference. Drawing on our knowledge of the regulatory requirements for pretreatment programs and the types of compliance problems the process can cause, we help our clients plan for successful management of these programs.

Wastewater Enforcement

EPA and state enforcement have recently focused on sewer collection systems, stormwater and pretreatment issues, while maintaining traditional industrial enforcement. Citizen suits have increased dramatically and, while less predictable, can be anticipated. Our attorneys assist our clients in appropriately planning for and addressing these issues.

Citizen Suits

Troutman Sanders has a successful record defending clients against citizen suits, which typically involve difficult situations in which self-reporting can create additional problems for dischargers. We have significant experience with these suits and the organizations that bring them. Our attorneys have also litigated several citizen suits, including some precedential and very high-profile cases. We have achieved substantial successes in this arena, which many permittees otherwise find difficult and expensive to manage.

Management, Operation and Maintenance (MOM)

As an outgrowth of the highly publicized suit against the city of Atlanta, the EPA has an ongoing enforcement initiative directed at leaking sewer lines. The agency has developed a little-publicized, 150-point checklist of potential MOM violations, and will excuse violations found and reported through facility self-audits.

Our attorneys help our clients plan their wastewater operations based on knowledge of how cities are targeted for enforcement and what types of issues can result in penalties.

Sample representations in enforcement actions include the following:

  • Negotiated the terms of a CWA section 308 information request letter to reduce and avoid sampling for a multi-sector general stormwater permit discharger.
  • Defended a large company from an EPA pulp and paper initiative suit.
  • Served as lead counsel for management, operation and maintenance enforcement actions.
  • Represented clients in civil penalty actions brought by the EPA and the state for alleged permit violations.
  • Negotiated several judicial consent decrees and achieved favorable settlements, including penalty reductions and supplemental environmental projects.
  • Negotiated several administrative consent orders, favorably resolving alleged discharge violations.
  • Litigated a case involving more than 100 violations of pretreatment standards against a metal finishing company.
  • Negotiated numerous state and federal consent decrees to resolve enforcement matters for large industrial facilities.
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