Water & Wetlands

“Whiskey is for drinking - water is for fighting!” Regardless of whether Mark Twain actually uttered these famous words, the maxim rings more true today than ever before. Legal requirements for the development and protection of clean water permeate decision-making in almost every business and landowner endeavor.

At A Glance

As our population grows, public and private stakeholders of all stripes increasingly exercise their authority to control human impacts to surface and groundwater. Foley’s environmental attorneys have the extensive industry and government experience needed to guide you through the complex web of federal, state, and local water-related requirements.

Our knowledge is founded on extensive work under the federal Clean Water Act, the Safe Drinking Water Act, and the Oil Pollution Act, from which cascade the myriad state and local water programs governing the use and quality of public and private water supplies.

Our attorneys, through decades of permitting, counselling, enforcement, litigation, and advocacy for clients across the United States, have a comprehensive, practical understanding of the legal issues involved in:

  • Fresh water supply;
  • Wastewater processing and discharge;
  • Wetlands protection; and
  • Stormwater management.

We can guide you through the lifecycle of your project and help you navigate novel regulatory issues, including concerns with emerging contaminants such as per- and polyfluoroalkyl substances (PFAS).

Land Development and Construction

Foley attorneys have deep relationships with real estate developers, homebuilders, and construction companies, often playing an integral role in helping clients manage and mitigate water risks throughout all phases of strategic project siting, development, and operations. Specifically, we have real world experience handling the following types of issues for companies operating throughout the United States.

  • Wetlands and Regulated Waters Protection:
    • Conducting transactional due diligence and pre-project counselling on impact avoidance, project requirements and jurisdictional determinations;
    • Advising on Section 404 and state wetland permitting requirements, including the use of nationwide permits, categorical exclusions, mitigation banking, and in-lieu fee credit options;
    • Defending final permits in administrative contested case proceedings;
    • Resolving issues related to compliance, including self-disclosures, agency investigations, and enforcement and the remediation of past impacts;
    • Litigating enforcement actions in state and federal courts;
    • Defending against citizen suits;
    • Preparing encroachment disclosures for the sale of real property; and
    • Obtaining relief for clients and industry allies through state and federal rulemaking initiatives, including appellate advocacy.
  • Surface Water Protection:
    • Counselling on all phases of construction stormwater management, including project planning, Stormwater Pollution Prevention Plan (SWPPP) development, and permit compliance;
    • Developing stormwater compliance training programs and compliance audits;
    • Responding to administrative enforcement actions alleging the unauthorized discharge of fill incident to construction, including negotiations with the U.S. EPA, U.S. Army Corps of Engineers, state and county environmental agencies, and other local authorities;
    • Defending against civil judicial enforcement actions and developing corporate programs to implement injunctive relief;
    • Advocating on stormwater rulemaking and policy initiatives;
    • Assisting clients with oil, hazardous substance and sediment spill reporting and emergency response; and
    • Negotiating voluntary remediation agreements and corrective action orders in response to releases to surface water.
  • Preventing Exposure to Contaminated Water:
    • Facilitating project development by negotiating institutional controls, such as Municipal Settings Designations, restrictive covenants, and notices of existing conditions;
    • Developing private water well testing and management protocols; and
    • Negotiating groundwater monitoring programs.
  • Ensuring Adequate Supply:
    • Spearheading the legislative creation of special purpose districts, such as municipal utility districts, to reimburse developers for the costs of constructing water and wastewater facilities for residential and commercial developments;
    • Obtaining or opposing the grant of certificates of convenience and necessity (CCN) from state agencies, including the Texas Commission on Environmental Quality (TCEQ), for the provision of water and wastewater service;
    • Shepherding applications to permit the withdrawal of groundwater from regulatory entities, including the Harris Galveston Subsidence District, the San Antonio Water System, the Edwards Aquifer Authority and other groundwater conservation districts, various regional water authorities in Harris County and other entities throughout Texas;
    • Negotiating water purchase contracts; and
    • Securing and transferring water rights permits from state agencies, including TCEQ, for the use of surface water by property owners.

Manufacturing, Electric Utilities, Natural Resource Extraction, Renewable Energy, and Pipelines

Our unique breadth of experience handling water issues comes from our attorneys having previously served as government regulators, in-house counsel, as well as outside counsel, for many types of clients in manufacturing, natural resource extraction, and energy-related industries. We tackle a host of water issues in the context of project development and ongoing operations, such as:

  • Process Wastewater Treatment and Discharge/National Pollutant Discharge Elimination System (NPDES) Permitting:
    • Negotiating NPDES and state equivalent wastewater discharge permit limits and pretreatment requirements;
    • Assisting clients with the preparation and submission of permit applications;
    • Analyzing and assisting with implementation strategies for mitigation requirements;
    • Defending permits against administrative and court challenges;
    • Advising with respect to bypass and upset events;
    • Handling enforcement proceedings for permit exceedances; and
    • Defending against citizen suits.
  • Groundwater and Surface Water Protection:
    • Reporting and responding to sudden releases;
    • Negotiating private party agreements and governmental orders for groundwater remediation projects, including the replacement of water systems;
    • Counselling on all aspects of industrial stormwater permitting and SPCC Plans;
    • Representation of client and allied industry interests in the development and litigation of regulations and guidance, including water quality standards, total maximum daily load (TMDL) provisions, and general permits; and
    • Negotiating shared services agreements at multi-party sites.

Representative Matters

  • Negotiated wastewater discharge permit limits and pretreatment requirements for compliance with thermal and intake standard provisions under Section 316(a) and (b) of the Clean Water Act.
  • Represented a residential developer in obtaining a permit to discharge wastewater into an impaired body of water in a contested case hearing at TCEQ and in the Travis County District courts opposed by area municipalities and neighboring landowners.
  • Obtained a TCEQ non-consumptive Water Use Permit for a designed water feature to be installed at the client’s corporate headquarters constructed in Collin County, Texas. The permit authorized an impoundment along a creek and the pumping and discharge of groundwater to maintain the water level in the impoundment.
  • Assisted a multinational manufacturer with obtaining, on an expedited basis, the local, state, and federal permits necessary to impact wetlands and adjacent streams in connection with a facility expansion in Wisconsin.
  • Provided transactional diligence and pre-project analysis of wetlands permitting requirements, including nationwide permits, associated with the development of renewable energy projects with onsite federal and state waters in several states.
  • Resolved a municipal enforcement action – with no penalty assessed -- against a pharmaceuticals manufacturer, in Carrollton, Texas, involving alleged violations of categorical pretreatment requirements.
  • Worked with a major Midwestern health care provider managing environmental aspects of the construction of hospital facilities, including the storage, disposal, and remediation of contaminated groundwater, endangered species analysis, and wetland fill permitting and mitigation banking.
  • Managed the legal and public affairs aspects of the permitting application process for underground injection control (UIC) wells at a Michigan pipeline terminal facility located in U.S. EPA Region 5, including related wetlands management, permitted water intake, and related permitted discharges.
  • Represented clients in litigation alleging the flooding of downstream property by upstream construction and development activities.
  • Represented pharmaceutical manufacturer in municipal enforcement of NPDES pharmaceutical pretreatment categorical requirements achieving compliance without penalty.