Water Resource Development

The prolonged drought in the Eastern United States, especially in the Southeast, is expected to continue for years. Those who depend upon surface and ground water should be working now to determine their future water needs and developing a plan for meeting those needs.

With the merger of Troutman Sanders and Mays & Valentine, our firm is now the preeminent water supply development law firm in the Southeastern United States. We represent large municipalities, industrial interests, hydroelectric licensees and real estate developers on water supply issues. Our attorneys have handled all aspects of permitting involved in developing new or expanded water supplies.

In the last ten years, the number and type of permits required to develop or expand water projects has changed. Water projects almost always affect "waters of the United States," especially wetlands, which cannot be filled without permits from the U.S. Army Corps of Engineers (Corps of Engineers) and -- usually -- state environmental agencies. Many states now limit the quantities of water that can be taken on a daily or seasonal basis, to protect fish life, recreation and other instream values.

In Corps of Engineers, the federal permitting process has become much more complicated. Besides the Corps, the U.S. Environmental Protection Agency (EPA), U.S. Fish & Wildlife Service and other federal agencies have an opportunity to evaluate and comment on these projects as well. Long-term water needs, water conservation, identification and selection of the least environmentally damaging practicable alternative, and impacts to wetlands, stream flows, water quality, fish and wildlife are among the major issues in most cases. The National Environmental Policy Act (NEPA), endangered species, coastal zone management, historic and cultural resources and environmental justice are all important considerations. Each of these issues must be treated carefully because the EPA has the power to veto a Corps permit and the federal and State permits are subject to judicial review.

Examples of representations include:

• Successfully representing a large Southeastern municipality in building a 60 million gallon per day water project consisting of a water pumping station in an existing Federal Energy Regulatory Commission (FERC) licensed hydroelectric project and an 86-mile pipeline to convey the water to the City. This work included representing the City before the FERC, the U.S. Department of Commerce, the State trial and Supreme courts, federal district courts, the U.S. Courts of Appeals for the Fourth Circuit and the D.C. Circuit, and the United States Supreme Court, in challenges by a neighboring state and other affected interest groups;
• Handling all permitting work for a large municipality seeking to develop a large reservoir project to supply an added 30 million gallons per day of water to the 450,000 residents of Virginia's Lower York-James Peninsula. This reservoir would flood 437 acres of wetlands and is opposed by local Indian Tribes and other interest groups, including the national Sierra Club. We have defended a state permit in litigation in the state trial and appellate courts, and we are presently in the final administrative phase of the Corps of Engineers' federal wetlands permitting process;
• Representing a municipality as plaintiff in a defendant class action suit against all riparian land owners on a river in a neighboring state, seeking a declaration that the City's public water supply withdrawal would not injure downstream riparian land owners. This case involves issues of equitable apportionment of water rights among States;
• Obtaining all environmental permits and local consents from a neighboring jurisdiction for construction of a large municipal water supply project. This project presented legal issues concerning removal of obstructions from navigable waters; and
• Advising a large real estate developer on compliance with federal law such as NEPA, the Endangered Species Act and the Federal Power Act as it seeks approval from the FERC to increase water withdrawals from a hydroelectric reservoir to meet the water needs of a golf course and a housing development.