Project Development & Permitting
Most industrial facilities and energy projects require environmental approvals or permits to be obtained prior to construction or operation. The permitting process can be complicated and challenging, as neighbors, activists and competitors may seek to use the permit process to delay, scale back, or kill a proposed project. Successful permitting requires careful planning, prudent site selection, and effective use of trained professionals.
We know the ins and outs of environmental permit processes and have extensive experience successfully guiding clients through the regulatory maze. We can provide pre-permit planning to identify the most efficient and cost-effective way to secure approval. Where permits require public notice, comment, or approval, we can assist with that process, including developing strategies for effective communication with interested parties. Our professional relationships with the state and federal regulatory agencies and legislative bodies enable us to act as advocates for our clients in the rule making and legislative processes as they relate to regulatory authorizations. Should a permit be contested, we have the depth and experience to represent clients in administrative hearings before regulatory agencies, including in Texas the State Office of Administrative Hearings (SOAH) and Texas Commission on Environmental Quality (TCEQ), and we have obtained favorable results in some of the most significant permitting cases in the state.
We have the knowledge and experience to provide comprehensive, cost-effective solutions for clients seeking permits for a wide variety of projects. Our goal is to keep our clients’ businesses running smoothly despite ever-changing environmental regulations. Our industrial clients are engaged in a broad spectrum of activities, including:
- Oil and gas exploration and production and storage and transportation
- Oil and gas and chemical production and refining facilities
- Aggregates mining facilities and asphalt manufacturing
- Cement, masonry concrete and Ready-Mix manufacturing
- Steel manufacturing, fabrication, and recycling
- Agricultural products manufacturing (cotton gins, feed mills, and fertilizer)
- Pet food and dairy manufacturing facilities
- Biofuel production and commodity storage facilities
Some specific areas of focus related to project development and environmental permitting include the following:
Air Quality Permitting
Air quality permitting is complicated. Our attorneys have a deep understanding of the issues involved in permitting, and we know that choosing the right type of permit can save time, money, and regulatory hassles. We develop cost-effective permitting solutions that take into account the individual needs of our industrial clients, and we serve as advocates for clients in the regulatory controversies that surround air emission.
Water Supply, Water Quality and Wastewater Permitting
Whether you are producing energy, operating a manufacturing plant, or developing a residential subdivision, you will need to treat and discharge cooling water, process water, or stormwater, and sometimes quite large amounts. We help clients find sources of water, whether by permitting new groundwater or surface water supplies, or contracting with existing owners of water such as districts and river authorities. After use of the water, and reuse in many cases, excess water will need to be discharged, land applied, or re-used by off-site operations. We know the requirements to obtain wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES), which in Texas is administered by the TCEQ as TPDES permits. We help clients successfully navigate the wastewater permit application, public notice, and hearing process to obtain such permits.
We are also familiar with the types of general permits which are available to more quickly authorize various types of operations, including construction stormwater discharge, multi-sector industrial discharge and animal feed operation general permits. We assist clients in understanding the limitations of general permits and when they may wish to instead apply for an individual permit.
We have extensive experience with the laws and permitting requirements surrounding the protection of threatened and endangered species in under the Federal Endangered Species Act and similar local requirements, including those of the Texas Parks and Wildlife Department. We help clients configure projects to best avoid adverse impacts to protected species and their habitat. Where avoidance is not possible, we can help obtain incidental take permits and set up or participate in habitat conservation plans.
The legal issues surrounding wetlands present a special challenge because of the complicated set of criteria used for defining the jurisdictional waters of the United States and regulating activities within wetlands. Under the Clean Water Act, permits may be required for impacts to wetlands, and we are familiar with the scope and application of U.S. Army Corps of Engineer’s nationwide permits, the process to obtain “non-jurisdictional determinations” or individual Corps permits, and how to mitigate impacts on wetlands.
NEPA & Environmental Impact Statements
The National Environmental Policy Act (“NEPA”) requires federal government agencies to consider the environment impact of proposals that are “major federal actions,” which includes most things that a federal agency could prohibit or regulate. In practice, a project is required to meet NEPA guidelines when a federal agency is required to issue an environmental authorization or provides any portion of the financing for the project, which includes many private development projects. The essential purpose of NEPA is to ensure that environmental factors are weighed in the decision-making process undertaken by federal agencies.
Our attorneys have counseled private and public entities on NEPA compliance, assisted in the preparation of NEPA environmental review documents, and have litigated NEPA cases. Our experience in diverse areas of environmental and natural resources law uniquely qualifies us to guide clients through NEPA compliance and NEPA litigation.
Local Environmental Authorizations
On top of myriad federal and state regulations, operators of facilities are also commonly faced with increased regulations from county, municipal and regional rule-making bodies. Our experience with the rule-making processes and procedures of these local bodies, and our strong relationships with key decision-makers within these bodies also enables us to help clients navigate this regulatory landscape.
- Represented a new entrant to the natural gas storage industry through all aspects and phases of development of a new salt dome natural gas storage facility proposed to be constructed in Texas, including all aspects of project structure, development, permitting, and other regulatory and legal matters. Represented the company in all required environmental reports, studies, surveys, and assessments, including wetlands, air, water permits and operational approvals under the auspices of the Army Corps of Engineers, the U.S. Fish & Wildlife Service, the Texas Commission on Environmental Quality, and the Texas Railroad Commission. Successfully obtained required environmental permits, including resolving material air permitting and conformity issues associated with the project’s proposed location in a non-attainment zone and, ultimately, with facility construction, operation, transportation, and storage agreements and contracts.
- For the owner of a new natural gas-fired, combined-cycled power plant, we successfully obtained the initial wastewater discharge permit from TCEQ required to commence operations at the plant. We also served as developer’s counsel for certain regulatory, project financing, and environmental matters, including providing a legal opinion to the lender regarding the developer’s compliance with all applicable state and local environmental permitting and regulatory requirements.
- For a national developer of resort communities, we led a successful effort to obtain a TPDES discharge permit for a new domestic wastewater plant to serve a 3,000-acre golf course resort community in central Texas. The permit was contested by a downstream landowner, and we obtained a unanimous decision from the TCEQ Commissioners denying the hearing request and ordering the issuance of the permit.
We represented a large generator of wind power, assisting with and advising on lease and option agreements, various easements, air rights, shared use agreements and other title and environmental issues, including bird surveys and cultural resource surveys.
- We have successfully defended a concrete production operation’s air permit before the TCEQ and the State Office of Administrative Hearings (SOAH). We assisted a central Texas quarry with securing an Edwards Aquifer Water Pollution Abatement Plan and with an exemption from a municipal development ordinance.
- We have secured state and federal air quality permits, permit amendments, standard permits, and permits by rule for large steel manufacturing and recycling facilities in Texas, including air quality authorizations for ancillary steel fabrication and scrap processing facilities. We continue to assist these facilities with permit compliance issues and associated testing and reporting obligations.
- Before EPA and TCEQ, we represented coalitions of electrical generating companies regarding the implementation of the Clean Air Interstate Rule, the Clean Air Mercury Rule, and the Dallas/Fort Worth and Houston/Galveston State Implementation Plans. This included developing emissions specifications for attainment demonstrations and system cap compliance mechanisms.
- We represented the owner of a pre-cast concrete plant in Harris County, Texas, on several air quality matters, including SOAH contested case hearing, where we obtained a favorable Proposal of Decision, and the business owner received a Texas New Source Review Permit.
- We represented the owner of a major dairy CAFO, located in the environmentally sensitive North Bosque River watershed, in a hotly contested permit hearing, and successfully obtained a new TPDES water quality permit, which allowed our client to continue to operate and expand the dairy.
- For the owner of a large poultry egg operation, we successfully obtained a new TPDES water quality permit to allow for a substantial expansion of the operation, following a contested hearing at the State Office of Administrative Hearings. We also successfully defended the permit on appeal.
- We have represented several mining companies in NEPA-related matters associated with historic NPDES permit-triggered and ongoing 404 Wetlands-triggered NEPA reviews. We have obtained necessary approvals and assisted clients in successfully expanding operations.
- For a client acquiring a 300 MW coal-fired power generation facility, we evaluated environmental liabilities prior to the acquisition, developed a strategy for an environmental audit under the Texas Environmental Audit Act, considered groundwater availability issues, and evaluated alternative fuel uses. We also assisted this client with all permitting and permit transfer considerations in acquisition of the assets, and prepared and filed all applicable PUCT and ERCOT registrations.