Water

MGKF represents clients involved in a broad array of regulatory programs developed under federal, state, and interstate water resource and water quality statutes. As outlined below and on additional pages in this section, these programs apply to a wide variety of activities including water supply and conservation, wetlands preservation, and the full gamut of water pollution control restrictions. Representative clients for our water practice include all facets of the firm's practice areas because water programs apply to developers, municipalities, and industrial and commercial operations.

Many of the water programs are implemented through permit programs that involve one or a combination of federal, state, interstate, and local agencies. We counsel our clients that it is critically important to develop a comprehensive plan for meeting all applicable permitting requirements early in the life of any project and to engage the regulators both formally and informally to ensure that approvals are adequately supported by an administrative record, issued in a timely fashion, and contain conditions appropriate to the circumstances presented. Of course, early involvement and proactive efforts will not always produce acceptable results; in these events, we are able to draw upon our experience in prosecuting and defending permit appeals. In such cases, the administrative record made during the permit process is most important.

Water Quality

Water quality is regulated through a variety of permitting programs, including the following:

• NPDES Permits: Any discharge of pollutants from a point source to navigable water requires a National Pollutant Discharge Elimination System ("NPDES") permit, which, in most instances, is issued by the states through federal delegation of the program. Although the NPDES permit program is more than thirty years old, toxic pollutant criteria, more sensitive analytical methods, and the establishment of Total Maximum Daily Loads ("TMDLs") have focused new attention on the NPDES permit process. We represent a variety of industrial, commercial and municipal dischargers in obtaining and complying with NPDES permits.
• Wastewater Construction Permits: The states generally require a separate permit for construction of the wastewater treatment facilities that discharge wastewaters governed by NPDES permits. We advise industrial and municipal clients on legal issues relating to obtaining and complying with these permits.
• Pretreatment Permits: Many of our industrial clients discharge to municipal treatment plants and are subject to specific pretreatment requirements and permits. We have also represented municipal authorities in developing pretreatment programs.
• Stormwater Permitting: State water programs have recently expanded to cover a wide array of stormwater discharges associated with activities ranging from construction projects to industrial operations. Stormwater permitting is a significant component of the firm's practice because of the intensified focus on the surface water impacts from stormwater.
• Sewage Facilities Planning and Permitting: Because of the firm's extensive real estate-related practice, we regularly assist clients in obtaining approval to extend sewer systems or obtain sewage treatment capacity. Projects can be delayed because of the unavailability of sufficient capacity and the regulatory process can be burdensome, making advance planning critical.
• Stream Designations: Water quality standards, in the form of narrative criteria and numeric values on a constituent-specific basis, combine to form the basis of surface water classifications. These provide the foundation for anti-degradation requirements, which often present limitations on surface water impacts of all sorts. We represent clients in both challenging and establishing stream designations that are compatible with our client's goals.

Wetland Requirements

Considered waters of the United States and/or state waters, wetlands are subject to both federal and state permitting programs. Coordination among federal and state agencies is among the challenging aspects of the firm's wetlands practice. Approvals are often difficult to obtain, in part because of the changing scope of the program as shaped by U.S. Supreme Court decisions and evolving agency guidance. The firm's practice in this area involves permitting as well as defending agency enforcement actions.

Water Supply

We represent our industrial clients who need to withdraw either surface or groundwater for use in their industrial processes, e.g., as cooling water, and commercial and residential developers who need access to water to supply their projects with potable water. In addition, we represent water utilities in addressing permitting and planning issues associated with developing new and maintaining existing water resources. We have also been active in statewide and regional water resource planning issues.