CLEAN WATER ACT: DESCRIPTION

Members of McKenna Long & Aldridge's environmental practice are experienced in the broad array of issues arising under federal and state laws relating to water quality protection. The Clean Water Act is the primary water quality protection law in the United States. The hallmark of the Clean Water Act is the National Pollutant Discharge Elimination System (NPDES), which requires a permit for the discharge of any pollutant into waters of the United States. To varying degrees, the states have been delegated the permitting and enforcement responsibilities under the Clean Water Act. In addition, many states impose additional requirements for discharges of pollutants into their waters.

McKenna Long & Aldridge provides effective counseling and representation to clients in this area, including strategic planning to reduce or eliminate regulatory requirements, assistance in the permitting process, development of pollution prevention plans, defense or challenges to permits, and defense of enforcement actions and civil suits.

One of the most effective ways to manage complex regulatory issues is to consider options at the outset that can reduce or eliminate regulatory requirements. For example, decisions regarding manufacturing processes and pollution prevention strategies can be employed in the industrial context to avoid creation of discharges that could be subject to the Clean Water Act. Likewise, decisions relating to the location and features of construction activities can affect the extent to which erosion and sedimentation, stormwater, and wetlands permitting requirements apply.

Wastewater permitting can be a lengthy process that requires submission of extensive and detailed information on the industrial processes of a facility, water quality data, computer modeling, and other information. As the capacity of our nation's waters to assimilate pollutant loads becomes more limited, conditions that are included within wastewater discharge permits are becoming more stringent. Facilities are subject to technology-based effluent limitations specific to their industrial category, and new facilities within certain industrial categories must comply with New Source Performance Standards. Responsive, credible, and persuasive documentation and interaction with federal and state regulators is crucial to obtaining the desired result from the permitting process and maintaining compliance with regulatory requirements.

Since the early 1990s broad categories of industrial facilities, construction activities disturbing five acres or more, and "medium" and "large" municipal separate stormwater systems have been required to possess a NPDES permit regulating their stormwater runoff. Construction sites of between one and five acres and smaller municipal separate stormwater systems are now subject to such regulation as well. Increasingly, construction sites in particular are the focus of enforcement activity and citizen suits for failing to properly control their stormwater. McKenna Long & Aldridge attorneys assist clients in the preparation of stormwater pollution prevention plans for industrial facilities and construction sites in order to ensure that the plans comply with applicable requirements. We also represent clients in defense of enforcement actions and citizen suits.

Closely related to, and often overlapping with, stormwater issues are requirements relating to control of erosion and sedimentation. In addition to permitting obligations that may include preparation of detailed erosion and sedimentation prevention plans, state laws often impose stream buffers and other requirements and permit variances from those requirements.

The Clean Water Act requires the states to establish water quality standards, which EPA must then approve, that designate the waters within each state for particular uses. Waters that become degraded by point and non-point sources to the point that they do not support the designated use are listed as impaired. The state and/or EPA then is required to establish total maximum daily loads (TMDLs) that limit the total quantity of pollutants that the water body can receive. Several states, including Georgia, are under court order to complete TMDLs within certain timeframes. Once established, TMDLs have the potential to significantly affect effluent limitations contained in new and existing discharges permits. McKenna Long & Aldridge has the necessary experience to assist clients in reviewing water quality standards and TMDLs, determining their impact on the client, and, where necessary, challenging standards and TMDLs that were improperly established.

"Wetlands" are defined as those areas that are subject to regular inundation and therefore support the growth of certain kinds of vegetation. Filling, dredging, or otherwise discharging dirt or other materials into wetlands is not permitted without a permit from the United States Army Corps of Engineers pursuant to Section 404(a) of the Clean Water Act. Particularly for larger developments, the permitting process can be complex and can involve participation by EPA , other federal and state agencies, and the public. Opponents of developments often use the wetlands permitting process as a primary means of attacking the development. Therefore, strategic thinking and careful preparation is needed throughout the permitting process. Attorneys at McKenna Long & Aldridge have significant experience in this area.

Our experience includes

• representing residential developer in EPA enforcement action relating to stormwater discharges
• representing a homebuilders association and a utility in a challenge to the State of Georgia's proposed general stormwater permit for construction activities
• counseling owners and operators of privately-owned wastewater treatment systems on issues of regulatory compliance and enforcement
• counseling municipalities on Clean Water Act regulatory issues associated with privatization of wastewater system facilities
• providing strategic advice and planning to major shopping center developer on wetlands permits and potential challenges
• successful defense of wetlands permits issued to Alabama municipality for water intake and transmission facilities
• representing wetlands mitigation banking company in negotiations with Army Corps of Engineers
• advising major national developer of apartment buildings regarding building strategies to minimize stormwater discharges, erosion and sedimentation
• counseling various clients on development options that minimize and simplify wetlands permitting requirements
• assisting in preparation of stormwater pollution prevention plans for industrial facilities, including carpet manufacturing facilities, merchant power plants, and construction sites