B&D has assisted companies for 50 years in National Pollution Discharge Elimination System (NPDES) permitting proceedings, and with stormwater permitting challenges since the 1987 inception of that CWA NPDES program. We develop strategies for permit renewals and modifications aimed at ensuring that permit terms are achievable and do not impose overly onerous compliance obligations. We are also very experienced with the legal and technical challenges that can arise once a permit has been issued, and we develop creative, cost-effective solutions for achieving permit compliance and avoiding government and citizen suit enforcement. We also assist clients facing the stormwater program for the first time to develop plans to achieve and maintain compliance with applicable requirements.

When regulatory enforcement actions and citizen suits do arise, our experienced water lawyers consistently secure favorable outcomes for our clients. B&D also has significant experience successfully challenging adverse permitting decisions in administrative hearings and litigation appeals, as well as advising on permit shield issues.

Select Representative Work

• For over 10 years, B&D has served as nationwide “go-to” stormwater counsel, providing counseling and litigation services for a Fortune 5 retailer with stores and distribution centers across the country. Representative issues include construction stormwater, green infrastructure, internal auditing, development of Stormwater Pollution Prevention Plans (SWPPPs), pretreatment requirements, and resolution of state and federal enforcement actions.
• B&D provides stormwater counseling to multiple national logistics companies. This support includes counseling on the improvement of stormwater compliance programs, utilizing state audit privilege acts as coming-into-compliance shields where advisable, minimizing exposure for enforcement actions, successfully defending citizen suits, and preparing for significant developments in stormwater regulations.
• B&D represented a major national home improvement retailer in a nationwide federal enforcement action related to discharges of stormwater during construction of the company’s stores at over 30 sites in 28 states. We also worked with the client to develop a compliance program and to assess and operationalize compliance software that guides and generates a record of compliance activities.
• B&D defended waste, recycling, and manufacturing facilities in San Jose, Redding, and elsewhere in California in citizen suits alleging violations of NPDES stormwater permits.
• B&D regularly advises data center operators on stormwater compliance.
• B&D represented national telephone service providers on the placement of fiber optic cable, including working with EPA and several states to properly assess and accommodate the unique construction stormwater issues presented by such linear projects and integrating permit coverage with owners and tenants for long-line service connections for new development projects.
• B&D counsels trade groups, interstate associations, and industry to quantify the benefits of agricultural and stormwater Best Management Practices so these benefits are recognized and fully accounted for in watershed-based planning and permitting and in total maximum daily load processes.
• B&D represents a major oil company in a citizen suit filed by an environmental NGO alleging Clean Water Act and the Resource Conservation and Recovery Act violations due to the alleged failure to adapt to risks posed by climate change, including from increased stormwater, sea level rise, increased precipitation, hurricanes, etc., that allegedly present an imminent and substantial endangerment. The claims are novel and seek significant injunctive relief and civil penalties.
• B&D filed an amicus curiae brief on behalf of the National Association of Clean Water Agencies (NACWA) in County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020), a major case concerning the scope of the CWA. The City of New York, the City and County of San Francisco, and the Metro Wastewater Reclamation District (serving metropolitan Denver) joined the brief, which Justice Alito cited in his dissenting opinion.