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When it comes to property development, parties that engage in earth disturbance activities, including land clearing, excavation and grading, generally need to obtain a National Pollution Discharge Elimination System ("NDPES") permit, typically issued by the state, to lawfully discharge stormwater associated with construction activities at the project site. Several states also require the party engaged in these activities to demonstrate that the stormwater generated at the site following the completion of the project will be the same, with respect to its rate, volume, and water quality, as the stormwater generated from the site prior to the project.   Many municipalities are now imposing fees on landowners for the operation and maintenance of municipal storm sewer systems.

Numerous industries are also subject to NPDES stormwater permitting requirements because the nature of their operations may allow pollutants to be carried by stormwater from their facilities into nearby waterways if not properly managed. Federal and state permitting requirements have evolved considerably in their approach to stormwater discharges associated with industrial activities.

Further, many municipalities have their own regulations regarding the discharge of stormwater during and after construction that have been buttressed by federally imposed obligations.

The firm counsels a wide variety of clients on the legal aspects of obtaining NPDES stormwater discharge permits including both general and individual permits, and the appropriateness of stormwater fee regulations. Working with our clients and their civil engineers, we also participate in the conceptual planning and design of development projects by providing legal advice regarding compliance with the applicable stormwater regulations and local ordinances.

Once permits are issued, we continue to counsel clients on permit compliance, addition of co-permittees, and termination of permits. The firm also defends clients against enforcement actions brought by various governmental agencies alleging permit violations.

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Representative stormwater matters in which the firm has been involved include the following:

  • The firm represented several national builders who received information requests regarding their compliance with NPDES construction stormwater permits from the U.S. Environmental Protection Agency ("EPA") pursuant to Section 308 of the Clean Water Act. We assisted these builders in responding to these requests and negotiated settlement agreements with EPA and the U.S. Department of Justice to resolve the allegations brought by the agencies.
  • MGKF conducted training programs for clients regarding obtaining and complying with NPDES stormwater permits on a local and nationwide basis.
  • We routinely counsel residential and commercial developers regarding the requirements for NPDES construction stormwater permits and the associated application process.
  • The firm also frequently counsels industrial clients regarding the applicability of the stormwater permitting program to their operations, including refinery, chemical, waste management, and general industry clients.
  • We assisted a developer in obtaining its NPDES stormwater permit for a residential and commercial mixed use development located in southeastern Pennsylvania, where the development encompassed a large section of a stream designated as a "special protection" water by the Pennsylvania Department of Environmental Protection because it contained naturally reproducing trout. The local chapter of Trout Unlimited was an active participant in the review and comments on the permit application.
  • MGKF assisted the engineers of a public housing project in Philadelphia to obtain local and state stormwater permits. Incorporation of a "green roof" (a vegetated roof that minimizes stormwater discharges generated after completion of the project) in the public housing project for post-construction stormwater management streamlined the permitting process.
  • The firm represented a national trade association in commenting upon a draft industry-specific general stormwater permit proposed by the New Jersey Department of Environmental Protection that included a rigorous set of numeric effluent limits going far beyond the best management practices included in the existing general permit for the industry.
  • The firm represented several major industrial clients in commenting upon proposed changes to Pennsylvania stormwater management regulations.
  • We counseled a national homebuilder with its due diligence efforts associated with stormwater liabilities that could arise from its acquisition of a partially completed subdivision that was being sold through the bankruptcy proceedings of another residential developer.
  • We represented a major industrial client in defending and successfully settling a significant enforcement action seeking substantial fines and extensive corrective actions to address alleged violations of its stormwater discharge permit.
  • A member of the firm is a course planner for the Pennsylvania Bar Institute's "Stormwater Regulation" course.

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