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Water and Wastewater

Troutman Sanders attorneys are experienced in every issue related to water quality, from resource and systems planning to permitting, compliance and litigation. Water issues have recently exploded with greater emphasis on water quality based permits, water supply issues, and attention from government and environmental groups. Members of the Environment and Natural Resources Group have extensive experience with water issues and can help your company meet its water legal needs.

The water quality practice has significant experience representing clients from a wide variety of industrial sectors, business organizations and municipalities, including:

• Utilities
• Textile and Carpet Manufacturers
• Industry Coalitions
• Pulp and Paper Producers
• Chemical Products Manufacturers
• Mining Operations
• Developers
• Scrap Metal Recyclers
• Petroleum Refineries
• Lenders
• Pretreatment facilities
  
  

Troutman Sanders water quality practice is proactive, working with clients to reduce potential liabilities, avoid permitting delays, develop good relationships with regulators, negotiate practical, long-term settlement of enforcement actions, and to understand and comply with applicable water quality laws. Our work includes substantive, on-going water quality representation for clients in Florida, Georgia, Virginia, Maryland, New York, and extensive experience with EPA regions across the country.

Troutman Sanders attorneys bring a broad array of experience to our water law practice. Our attorneys have represented national and international Fortune 500 companies in water issues, served at the top of state and federal governmental water programs, and have worked with the public and citizens on cutting edge water supply and quality issues. Our attorneys have participated in all aspects of water law, from court room disputes over competing water supply and quality issues, developing permits and regulations, defending against government or citizen enforcement, to negotiating with members of Congress over regional water issues.

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. Our attorneys assist clients in cutting edge water permitting to develop creative solutions that our clients can live with under the increasingly stringent NPDES permitting requirements. New issues, and a new focus on old issues, require novel solutions and a wealth of experience and knowledge of the many inter-related water programs and issues. 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 are requiring more stringent water quality based effluent limits (WQBELs) and antidegradation review. EPA and states set water quality permit limits in significantly different ways depending on the pollutant. 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. Our attorneys have helped explore permitting authorities' bases for changing permits, resulting in more tailored permit conditions and more reasonable monitoring requirements. Several of our attorneys formerly worked for state and federal permitting agencies, and have been involved with the development of policy and regulation of pollutants in water discharge permits.

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 your monitoring burden and compliance risk. Our attorneys have experience in the pitfalls of WER and WET, the variability in many of the testing mechanisms, and have assisted 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 nationwide knowledge of water issues can help you plan for needed variances, alternative criteria and mixing zones that will be increasingly necessary in future water quality based permitting. We are currently assisting clients in navigating variance, site-specific criteria and mixing zone issues.

Total Maximum Daily Loads

Anticipating how TMDLs will affect your discharge requires a comprehensive knowledge of water quality standards, NPDES permits, and the scientific basis for the classification of your receiving water, or 303(d) list. Judicial schedules for TMDL development are in place in many states. Troutman Sanders can help you determine when and if your discharge will be affected by TMDLs, and develop a strategy to meet your objectives within the confines of TMDLs. We have extensive experience in TMDL development and litigation, drawing from nationwide experience in TMDLs and a long history of familiarity with TMDL water issues in the Southeast.

Water Classification

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

Treatment Technology

Stricter standards require expensive technology that takes time to install. Several legal vehicles are available to get the time necessary to complete your project.

Permit Negotiation

Regulators are increasingly inserting "boilerplate" permit conditions which are not required by law but increase the risk of non-compliance and may "stick" 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 unnecessary conditions don't create a compliance problem.

Background and Experience

Our attorneys bring a broad array of experience to our water quality practice. Several of our attorneys are former officials or counsel for environmental regulatory agencies, including a former head of the Virginia Department of Environmental Quality and a Deputy General Counsel for the U.S. Environmental Protection Agency. Several of our attorneys are former counsel for environmental agencies or states' attorney generals, overseeing enforcement litigation, permitting, and the development of agency policies and practices in the water law arena.

Sample representations include:

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

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 and appropriately planned for and addressed.

Stormwater

Storm water enforcement historically focused on facilities failing to obtain coverage or report, but increasingly storm water discharge "goals" are being turned into enforceable discharge limits. Storm water monitoring is particularly challenging and consistent results are difficult to obtain.

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. Successful pretreatment planning involves knowledge of the entirely different set of regulatory requirements for pretreatment programs, as well as familiarity with the types of compliance problems pretreatment can cause.

Citizen Suits

Troutman Sanders has a successful record of defense against citizen suits, which typically involve difficult situations where self-reporting gets dischargers into trouble. Our attorneys have experience with dozens of citizen 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 been able to achieve substantial successes in this arena which many permittees find difficult to deal with and expensive.

Management, Operation and Maintenance (MOM)

An outgrowth of the highly-publicized suit against the City of Atlanta, EPA has an ongoing enforcement initiative directed at leaking sewer lines. EPA has developed a little publicized 150-point checklist of potential MOM violations, and will excuse violations found and reported through facility self-audits. Knowing how cities are targeted for enforcement and what types of issues can result in penalties can help you plan your wastewater operations.

Sample representations in enforcement actions include:

• Successfully negotiating the terms of a CWA section 308 information request letter to reduce and avoid sampling for a multi-sector general storm water permit discharger;
• Defending a large company from an EPA pulp and paper initiative suit;
• Serving as lead counsel for management, operation, and maintenance enforcement actions;
• Representing clients in civil penalty actions brought by the EPA and the state for alleged permit violations;
• Negotiating several judicial consent decrees, and achieving favorable settlements including penalty reductions and supplemental environmental projects;
• Negotiating several administrative consent orders favorably resolving alleged discharge violations;
• Successfully litigating a case involving over 100 violations of pretreatment standards against a metal finishing company; and
• Negotiating numerous state and federal consent decrees to resolve enforcement matters for large industrial facilities.
  
  

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

Wetlands

We have represented numerous clients, including developers and banks, in securing wetlands permits, soil and erosion control permits, and river bank modification permits. One of our attorneys drafted Virginia's mitigation banking law, and we represent one large wetland bank facilities in Virginia. Continuing our involvement in the management of Virginia's wetlands, a Troutman Sanders attorney has been appointed to the Virginia Department of Environmental Quality Technical Advisory Committee, which is developing regulations to implement the state's wetland law passed in 2000. While in government service, several of our attorneys worked with the EPA in developing its policy on wetlands issues, nationally and in the Southeast.

Sample representations include:

• Representing two gaming companies in negotiating Consent Orders with EPA on an expedited basis for alleged wetlands impacts in building casinos adjacent to the Mississippi River;
• Representing a large construction company in obtaining an after-the-fact determination from the Corps of Engineers that grading activities which impacted surface water and adjacent wetlands were covered under Nationwide Permit 26;
• Completing all phases of permitting work for a $1.7 billion semiconductor fabrication facility. Within a three month period, we assisted this client in obtaining all needed wetlands permits from the Corps of Engineers and Virginia Department of Environmental Quality;
• Assisting a county government in obtaining the wetlands permits needed for road, water and sewer improvements;
• Evaluating deficiencies in Corps of Engineers' § 404 permitting for development of a large-scale shopping center;
• Preparing a deed for perpetual preservation of existing wetlands as compensation for nearby wetlands impacts;
• Representing environmental groups in litigation regarding wetlands permit for a golf course adjacent to Sleeping Bear Dunes National; and
• On behalf of a municipal client, litigating before the Fourth Circuit a Section 404(c) "veto" by EPA of a county's proposed reservoir project which went to the Fourth Circuit.