Water Law & Resource Management

Jeffrey M. Karp Senior Counsel 202 370 3921 vCard
Leonard A. Miller Of Counsel 202 775 1202 vCard
Edward Woll Jr. Of Counsel 617 338 2859 vCard

Sullivan & Worcester represents clients in matters involving water rights, supply and allocation; water resource and conservation technologies; water-based alternative energy projects; water quality regulation and remediation; and domestic and international water policy development and advocacy.

Our lawyers have held leadership positions involving water policy, regulations and disputes in the U.S. Senate, the U.S. Environmental Protection Agency, the U.S. Department of Justice and state environmental protection agencies. They have years of experience working with private parties and state and federal agencies in water infrastructure development projects as well as on interstate and inter-jurisdictional water issues.

Drawing on its resources in the United States, the United Kingdom and Israel, Sullivan & Worcester deploys multi-disciplinary teams with expertise in project development, finance, real estate, tax, corporate and mergers & acquisitions to handle the full range of domestic and international water projects, transactions and regulatory compliance matters.

The Physical and Legal Availability of Water

An increasingly scarce resource, fresh water has become recognized as a factor of production necessary for economic growth, including energy production, commercial and industrial output, and environmental sustainability. In recent years, acute drought in regions around the United States and throughout the world has resulted in water shortages, disputes, and increased attention to the legal framework governing the availability of water supplies. Surface water withdrawals have raised conflicts under U.S. Interstate Water Compacts dating back to the early 20th Century, many of which are based on Western water rights frameworks that are ineffective in times of scarcity and fail to provide for effective allocation schemes. Groundwater aquifers — which provide as much as 20% of overall U.S. fresh water supplies, and over 90% in some regions — are increasingly subject to competing demands, but often lack any effective legal framework for allocation.

Water supply has traditionally been viewed as a matter of state law. But with greater scarcity and competing demands, federal law requirements are becoming critical determinants of water uses. Several important cases have recently been brought to the U.S. Supreme Court, while federal agencies such as the U.S. Army Corps of Engineers, the Department of the Interior and the U.S. Environmental Protection Agency have grappled with increased water demands and related legal requirements. Such demands and constraints arise under several federal laws and programs, including:

  • Resource development statutes, such as the Federal Power Act and Corps of Engineers projects
  • Laws aimed at protecting threatened species and habitat, such as the Endangered Species Act and the Migratory Bird Treaty Act
  • Environmental protection laws, such as the Clean Water Act and the Safe Drinking Water Act
  • Congressionally approved Interstate Compacts and Apportionment Decrees

Businesses and projects that depend on water must carefully assess all of the factors that may impact long term water supply. In collaboration with technical analyses provided by our consulting experts, S&W offers expert legal assessment and projections of future water availability and policy trends in advising on such projects.

Water Regulatory and Policy Matters

Federal, state and local regulatory programs are increasingly impacting businesses and projects that rely on water resources. Sullivan & Worcester has direct expertise in many of the key issues currently being addressed by Congress and the agencies, including:

  • The scope of federal jurisdiction to protect headwaters, source waters and rain-dependent streams. Our lawyers have been instrumental in the development of this policy over the past decade, including in Congress, in the U.S. Supreme Court, and before the EPA.
  • Congress's proposed legislation in response to the January 2014 contamination of Charleston, West Virginia's drinking water supply by chemical releases from above ground tanks.
  • EPA's programs and corresponding state regulations governing nutrient runoff controls and regulating large scale agricultural operations.
  • EPA's regulation of electric generating power plant cooling water systems.
  • EPA's regulatory responses to emerging contaminants of concern such as pharmaceuticals and personal care products.
  • Innovative approaches to financing the backlog of necessary investment in drinking water and wastewater infrastructure, estimated to require in excess of $300 billion in capital improvements by 2030.
  • Recent disputes before the U.S. Supreme Court involving allocation of water between states, and federal water quality programs, including New Mexico v. Arizona, Tarrant Regional Water District v. Herrmann,and Los Angeles County Flood Control District v. Natural Resources Defense Council (click here to view the firm's U.S. Supreme Court amicus brief)

For more details, please see our PPCP Resource page.

Integrated Water Resources Management

Although businesses in most of the United States historically have enjoyed ready access to abundant fresh water resources, water supplies throughout much of the country increasingly are facing the combined threats of rapid population growth, expanding development, agricultural pollution and drought. As development rates and electricity demands parallel population growth, water use has escalated and water quality has deteriorated. Global climate change is impacting natural water flows and the availability of water resources through a greater frequency of extreme weather events, which contribute both to periodic flooding and drought.

Local jurisdictions are grappling with how to protect water supplies in the context of population and development growth, climate change, and limited economic resources. Legal strategies are needed to ensure adequate water quality and quantity to sustain natural ecosystems, economic growth, and human health and prosperity. Most jurisdictions simply do not have the regulatory and legal infrastructure necessary to address the coming era of increased demand and uncertainty of supply.

Integrated water resources management (IWRM) is a multidisciplinary strategy that is gaining momentum among water resources experts. IWRM aims to improve the efficiency and sustainability of water resource management through a holistic approach that engages various stakeholders. The implementation of IWRM requires an understanding of both the rights and the obligations of the stakeholders, and the establishment of a legal framework for enforcing those rights and obligations.

IWRM may be implemented at various levels of government, and applied to a variety of water sources, such as stormwater and groundwater, freshwater and coastal water, multijurisdictional watersheds, or land and water management. Water Resources Management Plans hold the potential for integration of stormwater, wastewater, and drinking water regulation at the local-government level, and now are considered "best practices" for local jurisdictions.

Sullivan & Worcester and its strategic partners assist businesses and municipalities to achieve Clean Water Act and local regulatory objectives more efficiently by identifying overlapping and competing requirements of separate stormwater and wastewater programs. We offer an interdisciplinary approach bringing both legal and engineering expertise as a means of allowing businesses and local governments to achieve sustainable and comprehensive solutions at the nexus of stormwater, drinking water, and wastewater management. We combine an intimate familiarity with existing federal regulations, enforcement policies, and compliance schedules with innovative solutions that synthesize wastewater and stormwater management activities in a way that optimizes cost-effectiveness and environmental quality.

Advanced Water Technologies and the Water-Energy Nexus

Sullivan & Worcester has been at the forefront in facilitating commercialization of advanced water technologies. As the only U.S. law firm with a joint venture partner in Israel, we have has played a unique role in bringing advanced Israeli technologies to the United States. Sullivan & Worcester also has a premier renewable energy development and finance practice, enabling us to help facilitate the deployment of water technologies for energy-generation in connection with water projects.

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