Clean Water Act Counseling and Litigation

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The federal Clean Water Act establishes a framework for protecting and preserving water quality in the country. Its principal mechanism of control is the National Pollutant Discharge Elimination System (NPDES) permit. Our environmental lawyers are highly experienced at helping clients secure and maintain discharge permits for construction and continued operation of their facilities. Issues of possible significance to clients applying for new or reissued permits under the Clean Water Act include changes to the water quality standards and effluent limitation guidelines, stricter biomonitoring requirements, possible use of site-specific factors to increase water quality-based toxicity limits and more stringent limits on discharges to impaired waters. In addition, our environmental practice lawyers are well versed in the intricacies of the storm water permitting program, including requirements for co-located business entities and activities., An applicant’s anticipation of issues, early preparation and effective participation in the permitting process offers the best opportunity to secure timely permits with the maximum flexibility for continued operation and expansion.

The wetlands permitting program mandated by the Clean Water Act and implemented by the U.S. Army Corps of Engineers is one that has been mired in controversy in recent years. The most significant issue relates to the complex determination of whether a permit or an authorization is required for a particular activity. The wide range in applicability guidance along with the broad scope of the program has trapped many of the unwary in the government’s enforcement net. New regulations are proposed that are likely to be challenged and to insert new questions of interpretation and application into this challenging area. Our lawyers are adept at helping clients navigate this landscape to ensure compliance and minimize the risk of enforcement.

Civil and Criminal Enforcement:
Clean Water Act permitting programs require monitoring and self-reporting of compliance data. Given these self-disclosure requirements and the ease of establishing a violation, enforcement by both the U.S. Environmental Protection Agency (EPA) and the permitting states under the Clean Water Act is quite common. We are very familiar with the penalty policies of the various permitting entities and we help our clients secure results in Clean Water Act enforcement proceedings. In addition, significant spill events are enforced under the Clean Water Act, and Baker Botts develops proactive strategies when involved at the early stages of a response and comprehensive strategies for enforcement resolution or litigation against the Clean Water Act framework. We also have represented clients in EPA/DOJ investigations and criminal enforcement proceedings involving alleged knowing and negligent violations of the CWA, and we have negotiated plea agreements and conditions of probation to resolve these matters.

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