Water Resources & Clean Water Act Law

Kaplan Kirsch’s water resources attorneys guide public and private clients through Clean Water Act (CWA) permitting, compliance, enforcement, and litigation. We represent public utilities, water districts, tribal and local agencies, developers, and industrial companies. Kaplan Kirsch brings deep knowledge of the federal, state, and local programs and policies that govern water resources. We advise on project development and public policy strategy, as well as high-stakes compliance and enforcement. Our team also provides legal and technical guidance on permit and regulatory compliance and defends clients against alleged water quality violations.

We help clients secure permits, comply with water quality laws, and resolve disputes over water projects. Our project work includes water storage and conveyance, flood control, water banking, exchange programs, water transfers, and watershed and habitat restoration.

NPDES Permitting and Water Quality Compliance

The CWA’s National Pollutant Discharge Elimination System (NPDES) regulates pollutant discharges to surface waters. Any facility discharging pollutants from a point source into waters of the United States (WOTUS) needs an NPDES permit. Colorado, California, and many other states administer the program under Environmental Protection Agency (EPA) oversight. Construction sites that disturb one acre or more generally need stormwater permit coverage.

Kaplan Kirsch helps public utilities, developers, and industrial clients obtain these permits and stay in compliance. Our work covers wastewater treatment, stormwater, sanitary sewer overflow, and biosolids requirements. When an agency alleges a violation, a prompt and well-documented response matters. We defend clients in enforcement proceedings and have successfully negotiated resolutions of alleged violations.

Section 404 and Wetlands Permitting

Section 404 of the CWA requires a permit to place dredged or fill material in jurisdictional waters. Those waters can include many wetlands, streams, and other WOTUS. The U.S. Army Corps of Engineers (USACE) issues these permits individually or under general permits such as nationwide permits. Whether the CWA applies at all depends on WOTUS jurisdiction. We help clients confirm jurisdiction early, before it shapes project design and schedules.

Section 404 is a particular focus of our practice. We pair Section 404 work with related laws, including the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). That integrated approach helps critical projects move forward throughout the United States.

Drinking Water Source Protection and Remediation

We counsel public utilities on federal- and state-led groundwater and surface water remediation projects. This work involves restoring beneficial uses for drinking water, addressing emerging contaminants, and pursuing cost recovery. Contaminants include perchlorate, 1,4-dioxane, PFAS, hexavalent chromium, and 1,2,3-trichloropropane (1,2,3-TCP). Related cleanup and liability work appears on our Contaminated Site Cleanup & Compliance page.

Representative Experience

Water Supply & Resource Projects

We advise agencies, private water users, and nongovernmental organizations on developing and managing water resources.

  • Represented a California joint powers agency on water and natural resources issues arising from coordinated Central Valley Project and State Water Project operations.
  • Represented a Colorado public utility in federal and state permitting for a Front Range public water supply project. Permitting included water quality, wetlands, and associated environmental reviews.
  • Advised a California water storage district on multiple water banking and exchange projects in the state’s Central Valley.
  • Advised a California public agency in a dispute over significant subsidence damage to a major conveyance facility from nearby groundwater pumping.
  • Advised a California public agency on implementing the San Joaquin River Restoration Program. This landmark effort seeks to restore the flows, habitat, and salmon population of Central California’s longest river.

Remediation & Treatment

  • Advised a Los Angeles public utility on multiple treatment facilities and well fields in and near the San Fernando Valley.

NPDES & Water Quality

We regularly advise public and private stakeholders on complex water quality permitting and compliance issues.

  • Represented public utilities and developers in numerous defense proceedings before state and federal regulators (including the Environmental Protection Agency, the Colorado Water Quality Control Division and California Regional Water Quality Control Boards). We advise clients on regulatory compliance with wastewater treatment, stormwater, sanitary sewer overflow and biosolid legal requirements, as well as successfully negotiating resolution of alleged violations.
  • Advised a California water district in proceedings to establish new water quality standards for a Bureau of Reclamation conveyance facility.
  • Advised an industrial client on whether its operations required NPDES permits and assisted client with applying for permits to discharge groundwater and stormwater from the site.
  • Represented a Utah municipality on NPDES permitting for city drinking water sources from historic mining tunnels, including a TMDL and long-term stipulated compliance order.
  • Represented the developer of a 1,000-acre commercial mixed-use development in Colorado responding to a stormwater notice of violation. Developed a comprehensive stormwater permitting and compliance strategy for ongoing development at the site.

Section 404 & Wetlands Permitting

  • Obtained a “no permit required” determination from The U.S. Army Corps of Engineers (USACE) for a mine reclamation project.
  • Advised clients on the federal regulatory developments regarding the CWA’s Waters of the United States (WOTUS) jurisdiction.
  • Assisted clients in reviewing and commenting on permit applications nationwide, including Section 404 permits for large infrastructure projects.

Water Resources Litigation

Our team has litigated water resources, both defending agency approvals and challenging them.

  • Represented a Colorado municipality in successfully defending permits for a wastewater treatment plant against legal challenges from a neighboring jurisdiction.
  • Represented a California public agency in multi-party state and federal litigation over the Central Valley Project and State Water Project operations. The dispute centered on the projects’ joint long-term operations plan. Claims arose under NEPA, the Reclamation Act, the California Environmental Quality Act (CEQA), and the California and federal Endangered Species Acts.
  • Represented a California water storage district in CEQA challenges to three Central California water banks, securing a favorable resolution on all counts, including a full award of attorney fees.
  • Challenged the USACE’s issuance of a Section 404 permit for a 1,000-acre recreational reservoir in southern Georgia. Georgia River Network v. U.S. Army Corps of Eng’rs, 517 F. App’x 699 (11th Cir. 2013).
  • Challenged the USACE’s issuance of Nationwide Permit 13 for bank stabilization structures. Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 170 F. Supp. 3d 6 (D.D.C. 2016).

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