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 on the importance of developing comprehensive plans 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:

• Discharge 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 by virture of the federal delegation of the permitting program. Although the NPDES permit program is more than forty 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.
• Treatment System 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 Permits: Discharge permit programs 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 Permits: 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 and numeric criteria, combine to form the basis of surface water classifications. These criteria provide the foundation for the development of water quality-based effluent limitations for discharge permits and anti-degradation requirements, which often present limitations on surface water impacts of all sorts. We represent clients in both challenging and establishing stream designations and redesignations 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 regulatory 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.



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MGKF handles a wide variety of water matters, including, for example:

• Sewage Facilities:  The firm has helped several clients obtain state approval to use "pump and haul" techniques as an interim sewage disposal method, so that building permits and use and occupancy approvals could be issued before sewage treatment plants are completed.
  
  
• Stormwater:  The firm represented several national builders who received information requests regarding their compliance with the National Pollutant Discharge Elimination System (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 also conducted training programs for clients regarding obtaining and complying with NPDES stormwater permits on a local and nationwide basis.
  
  
• Wastewater Permitting:  A parallel approval program administered by the Delaware River Basin Commission (DRBC), an interstate commission made up of Pennsylvania, New Jersey, New York, Delaware, and the federal government, has also been a focal point of our practice. Clients often seek advice on the interplay between the NPDES permit program, EPA's retained review permit authority, and DRBC's asserted jurisdiction.
  
  The firm has also gained considerable experience in understanding the programmatic aspects of TMDLs as well as the development of specific waste load allocations (for point source dischargers) and load allocations (for non-point source dischargers) in a variety of contexts. Most notably, we have been heavily involved in the development and implementation of TMDLs for toxic pollutants in the Delaware Estuary and nutrients in the Chesapeake Bay Watershed.
  
  
• Water Supply:  MGKF counseled clients concerning preparation of drought emergency contingency plans and compliance with water use restrictions during drought conditions.
  
  Additionally, the firm represented state-wide and regional trade organizations in amicus curiae briefing before the Pennsylvania Supreme Court regarding water withdrawal rights and governmental jurisdiction under the Susquehanna River Basin Compact.
  
  
• Wetlands:  MGKF obtained a federal Section 404 individual permit from the Corps for the developer of a large resort community including over 1800 residential units and a championship 18-hole golf course.
  
  On behalf of a "big box" retailer, the firm also resolved a permit violation issued by the Corps alleging that the retailer did not observe certain permit conditions during the construction of its facility. Using a voluntary settlement agreement that did not admit liability, the firm resolved the matter by negotiating a donation to a qualifying non-profit natural resource organization.