Jackson Walker’s environmental attorneys are skilled in all areas of water quality regulation and have the experience to efficiently and effectively guide clients to their goals. We help clients develop effective reuse, disposal, and pollution prevention strategies to tackle challenges before they become problems. We assist clients in their dealings with various state agencies and represent them before the TCEQ and, if contested, before the State Office of Administrative Hearings to obtain water quality permits, and we are prepared to defend those permits in state court. We are knowledgeable on all aspects of the Clean Water Act, including implementation of Section 316(b) rules for cooling water intakes, know how to avoid the pitfalls of water quality laws and regulations, and can provide practical advice and assistance to operate in compliance with those laws, regulations, and applicable permits.
In addition, our attorneys are regularly involved with the state legislature and rule-making bodies in monitoring and influencing decisions that affect our clients. We have the both connections and insights to advise you about new issues and can help you voice your concerns to decision-makers.
- Wastewater Discharge Permitting
- Clean Water Act § 316(b) Cooling Water Intakes
- Flood Management
- Environmental Flows
The regulations surrounding water use are as complex as the waterways that branch across the state. In addition to state and federal regulations, cities, counties and conservation districts may have a say in water issues, which often cross jurisdictional boundaries. Both drought and flooding bring special considerations, and, as in all areas of environmental law, water regulations change frequently. With extensive experience in all aspects of water use, from permitting to litigation, our environmental attorneys bring clarity to this complicated field.
Water Rights and Usage
The regulation of water in Texas differs depending on whether the source of supply is surface water or groundwater. We help clients identify and secure water supply for their operations from a variety of sources, which include the following:
- Surface water: We help clients obtain rights to divert and use surface water, including purchasing and amending water rights permits and certificates of adjudication. We also advise clients on the applicability of water rights exemptions, including the domestic and livestock exemption. In addition to assisting clients with their immediate water needs, we have been instrumental in helping our clients receive consideration in the Texas Water Development Board’s State Water Plan, a crucial step in planning for significant future water needs.
- Groundwater: We are also experienced with the laws and regulations governing the use of groundwater, and we represent clients in purchasing and permitting groundwater rights and in litigation over withdrawals from groundwater aquifers. We understand the statutory authority – and the limitations on that authority – of groundwater conservation districts, and we represent clients in hearings, rule making proceedings, and litigation involving groundwater districts.
- Purchase and re-use: If sources of surface water or groundwater are limited or unavailable, another option is to enter into a contract to purchase water from an existing water supplier. We help clients negotiate those contracts and identify cost-effective strategies for obtaining a water supply. We have also helped clients develop innovative projects that involve the re-use of water for a number of applications, including landscaping, irrigation, and a variety of industrial purposes.
Special Districts and Water Utilities
We represent retail public utilities, including municipal utility districts, special utility districts, investor-owned utilities, and non-profit water supply corporations in various organizational, regulatory, and rate matters. We have represented clients in complex transactions involving the formation of special districts, including municipal utility districts and special utility districts. We are also experienced in obtaining regulatory approval for the sale, transfer, and merger of water utilities through the STM application process at the Public Utility Commission of Texas (PUCT) and for the adoption of impact fees in compliance with TCEQ rules and chapter 395, Local Government Code. We have also represented water utilities and other clients in hearings at the State Office of Administrative Hearings (SOAH) and the PUCT (and its predecessor the TCEQ) in disputes over service areas and certificates of convenience and necessity, water service costs, and the wholesale supply of water.
Because of our extensive experience representing these types of entities, we are able to provide a comprehensive suite of services to water districts, water supply corporations and investor-owned utilities, including assistance with organizational and operational issues, such as customer service policies, compliance with Open Meetings Act requirements, and election laws. We also have extensive experience with the following:
- Water rate proceedings: We have specific expertise in representing utilities in water rate proceedings, which can be an area of controversy. We take a proactive approach to helping clients plan for and position rate adjustments to enhance opportunities for success. We have also achieved excellent results for our clients in major contested case hearings.
- Certificates of Convenience and Necessity: Certain retail public utilities are required to obtain a certificate of convenience and necessity (CCN) from the PUCT before they may provide retail water or sewer service. We have helped clients obtain CCNs and negotiate transfer, cancellation and dual certification agreements. Our attorneys are experienced in all of the issues surrounding CCNs in Texas, including amendments; appraisals; de-certification, including “expedited release” of large tracts; federal debt Section 1926(b) protection; and financial assistance available to providers in economically distressed areas.
We have also represented utilities in litigation and contested case hearings to protect their service areas from encroachment by neighboring utilities and cities.
Water Quality Highlights
- Demonstration before TCEQ that a proposed listing of Lake Arlington as thermally impaired under Section 303(d) of the Clean Water Act was unnecessary.
- Representation of a surface coal mining facility in a contested case hearing before the State Office of Administrative Hearings in obtaining a new industrial wastewater discharge permit.
- Representation of a major dairy CAFO, located in the environmentally sensitive North Bosque River watershed, in a contested permit hearing, resulting in the issuance of a new TPDES water quality permit.
- Representation of a large poultry egg operation in a contested case hearing resulting in issuance of a new TPDES water quality permit and defending that permit on appeal.
- Representation of a national developer of resort communities in a contested case hearing in obtaining a TPDES discharge permit for a new domestic wastewater plant by unanimous decision from the TCEQ Commissioners denying the protestants’ hearing request and ordering the issuance of the permit.
- Representation of a large multi-state agricultural operation in a Clean Water Act enforcement action brought by the U.S. Department of Justice, the Environmental Protection Agency, and two state attorneys general resulting in an innovative Consent Decree.
Water Supply Highlights
- Represented a major real estate developer to obtain authorization from the TCEQ to use water reclaimed from the discharge of a wastewater treatment plant for conveyance and use at a golf course area and also in subdivision common areas. Representation included contract negotiations over the business terms by which a nearby city provided the reclaimed water to our client.
- Represented the developer of a major South Texas area power plant project in successful negotiations with a river authority to reserve raw water supply for purposes of developing the project.
Represented clients in contractual negotiations for the long term purchase of raw water from various river authorities and districts, including Sabine River Authority, Tarrant Regional Water District, Guadalupe-Blanco River Authority and Brazos River Authority.
- Represented a major golf course owner to acquire a surface water rights permit from TCEQ, including obtaining authorization for the impoundment and diversion of state waters and the storage of groundwater using the bed and banks of a reservoir.
- Represented a municipal utility district in a contested hearing at SOAH to successfully obtain new water and sewer certificates of convenience and necessity, and to expand the district’s retail service areas. The matter was contested by a developer and by a competing investor-owned utility, each of which also sought certification to a portion of the area.
- Successfully represented a municipal utility district seeking to increase its retail service impact fees, both in contested proceedings at the TCEQ and thereafter in board proceedings instituted pursuant to the requirements of Chapter 395 of the Local Government Code.
- Represented a large special utility district in successful negotiations with a major river authority to acquire wholesale treated water under long-term water supply contract. Also, represented the client before the board of a local groundwater district in the successful application to increase the permitted volume of groundwater pumped.
- Represented an investor-owned utility in obtaining required regulatory approvals of the TCEQ and TWDB and successfully closing the multimillion dollar purchase of a large nonprofit water supply corporation, including obtaining required approvals for utility rates and the transfer of the existing retail water certificate of convenience and necessity to our client. We later represented the same client in successful negotiations with a city and river authority to acquire additional facilities and expand the client’s certificated service area.
- Represented a land developer to obtain amendments to three water utility CCNs covering the development property so as to conform the utility CCNs to the property boundaries and thereby enable a single utility provider to service the entire development.
- Represented wholesale purchaser of water in challenge of rate increase, and successfully obtained order from administrative law judge adopting lower interim rates during pendency of rate appeal pursuant to Texas Water Code 13.043.
For various clients, we have drafted and assisted in the passage of legislation to create special utility districts, including one of the largest, geographically, in the state.
May 26, 2023
US Supreme Court Narrows Wetlands Jurisdiction Under Clean Water Act
On May 25, the U.S. Supreme Court (the Court) issued its decision in Sackett v. EPA which substantially narrows the reach of Section 301(a) of the Clean Water Act (CWA), a provision that prohibits certain discharges of pollutants to navigable waters without a CWA permit. Determining the scope of the CWA’s definition of navigable waters, and in turn the propriety of the regulatory definitions established by EPA and the Army Corps of Engineers (ACOE) to define waters of the United States, is at the heart of this litigation.
By Jonathan Bull
March 22, 2023
Lawdragon Lists Six Jackson Walker Attorneys Among Leading Energy Lawyers of 2023
Jackson Walker partners Leonard Dougal, Meghan Griffiths, Peter Hosey, Jesse Lotay, Michael Nasi, and Michael Pearson have been selected to “The 2023 Lawdragon 500 Leading Energy Lawyers” list. Selection is limited to those who have been in practice for at least 10 years and is based on the publication’s individual research, submissions from firms and companies, and vetting with experienced lawyers in their respective areas.
February 14, 2023
Lawdragon Lists Five Jackson Walker Attorneys Among Leading Environmental Lawyers
Jackson Walker announces the selection of Ali Abazari, Leonard Dougal, Michael Nasi, Benjamin Rhem, and Daniel Vineyard to “The Lawdragon Green 500: Leaders in Environmental Law” list for 2023.
February 7, 2023
The Dotted Line: What’s up with WOTUS? | Construction Dive
A new EPA rule could result in additional costs of $1 million per acre for projects adjacent to certain waterways. In this Construction Dive article, Taylor Holcomb notes, “The Biden Administration’s version of the rule should be considered a middle ground between the Obama and Trump-era WOTUS rules.”
February 6, 2023
Expect New Standards for Landfills, Industrial Sites as EPA Tackles PFAS Discharge in Water
EPA recently issued the Effluent Guidelines Program Plan 15 to address the widespread “forever chemicals,” known as per- and polyfluoroalkyl substances (PFAS), found in water, air, fish, and soil around the world.
By Daniel Vineyard & Tyler Self
November 3, 2022
Jackson Walker Earns 24 National and 121 Regional “Best Law Firms” Rankings in 2023 Edition
Jackson Walker proudly announces the Firm’s inclusion in the 2023 edition of the U.S. News & World Report and Best Lawyers “Best Law Firms” list. This year, our firm improved in the national rankings, with the rise of Appellate Practice and Corporate Law to Tier 2.
September 22, 2022
EPA May Try to Block What Could Be the First Seawater Desalination Plant Built in Texas | The Texas Tribune
Citing water quality concerns, the Environmental Protection Agency may refuse to recognize a permit that Texas approved on Thursday, September 22 for a marine desalination plant at the Port of Corpus Christi.
Jackson Walker partner Craig Bennett, as counsel to the Port Aransas Conservancy, which opposes the plant, told The Texas Tribune that he’s concerned that the TCEQ has set a bad precedent for permitting marine desalination plants. “We are not opposed to desalination,” he noted. “There’s no reason they can’t run the discharge out into the gulf.”
August 19, 2021
‘The Best Lawyers in America’ Honors 178 Jackson Walker Attorneys in 2022 Edition, Including 8 “Lawyers of the Year” and 31 “Ones to Watch”
The Best Lawyers in America has recognized 178 Jackson Walker attorneys across 6 offices and 67 specialty practice areas in its 2022 edition, including 8 Lawyers of the Year and 31 Ones to Watch. Best Lawyers listings are based on an exhaustive peer review survey of thousands of attorneys who vote on the legal abilities of others in their practice areas.
June 1, 2021
Justices Hold CWA Settlement Does Not Start the Clock on CERCLA Limitations
By Dan Vineyard, Lindsey Moorhead, & Carolyn Campion
In Territory of Guam v. United States, the Supreme Court unanimously held that claims for contribution under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) require the resolution of a CERCLA-specific liability. Accordingly, settlements or consent decrees under different environmental statutes will not start the clock on a party’s CERCLA claims for limitations purposes.
May 10, 2021
Jackson Walker Expands Regulatory Practice With Addition of Heath Armstrong
With deep experience in government regulation and legislative policy, Heath Armstrong boosts the Firm’s representation of private and public clients involved in government regulation, including expanding the teams working on electric, water, telecommunication, and energy development projects.