Clean Water Act (CWA) Compliance and Defense - Federal Lawyer
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Clean Water Act (CWA) Compliance and Defense

EPA Counsel Experienced in Clean Water Act (CWA) Compliance and Defense

Carlton S. Patton
Carlton S. Patton
EPA Clean Water Act Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA Clean Water Act Team Lead
envelope icon Contact Nick

The U.S. Environmental Protection Agency (EPA) strictly enforces corporate compliance with the federal Clean Water Act (CWA). The CWA establishes numerous obligations for companies operating in a wide range of industries to preserve water quality; and, under the EPA’s Clean Water Act Action Plan, the agency is actively pursuing three primary goals:

  • Targeting significant water pollution problems
  • Improving transparency and accountability
  • Strengthening enforcement at the federal and state levels

As a result, in today’s world, companies cannot afford to ignore their obligations under the Clean Water Act. Companies that are subject to the CWA need to prioritize compliance, and they need to focus on documenting their compliance so that they can withstand scrutiny from the EPA when necessary. At Oberheiden P.C., our EPA lawyers assist companies with all aspects of Clean Water Act compliance, and we defend companies facing CWA-related scrutiny from the EPA as well.

3 Key Areas of Clean Water Act Compliance

While there are numerous aspects to Clean Water Act compliance, for most companies, adequately addressing the CWA and the EPA’s regulations under the statute involves addressing one or more of three key areas. These are: (i) wastewater management; (ii) wetlands protections; and (iii) oil spill prevention and remediation.

1. Wastewater Management

Companies that discharge pollutants into U.S. waters, like municipal wastewater treatment plants, must comply with the Clean Water Act’s wastewater management provisions. For many, this means participating in the EPA’s National Pollutant Discharge Elimination System (NPDES) Program. While the NPDES Program is largely administered at the state level, the EPA maintains oversight of the Program, and it both assists with compliance monitoring and pursues investigations and enforcement actions as warranted.

We assist companies with all aspects of NPDES compliance, including the NPDES permit application process and taking the necessary steps to withstand compliance monitoring. Our CWA compliance lawyers are intimately familiar with the NPDES Compliance Inspection Manual, and we use this manual as a non-exclusive tool to help our clients develop and implement effective NPDES compliance programs.

Along with NPDES compliance, we regularly assist companies with other aspects of wastewater management compliance under the Clean Water Act. These include, but are not limited to:

  • Biosolids compliance under the CWA
  • Discharges from Concentrated Animal Feeding Operations (CAFOs)
  • Pretreatment of discharge pollutants (including preparation for pretreatment inspections)
  • Stormwater pollution management (including stormwater pollution prevention plans)
  • Wastewater overflows and stormwater discharges from municipal sewer systems

When it comes to wastewater management, companies cannot afford to take chances. Noncompliance can lead to swift EPA enforcement, which can in turn lead to substantial penalties. At Oberheiden P.C., we help our clients take a proactive and transparent approach to wastewater management compliance—ensuring not only that our clients have the knowledge and resources they need to comply, but also ensuring that they have the documentation they need to prove compliance to the EPA.

2. Wetlands Protections

Wetlands protections account for a substantial portion of the Clean Water Act and the EPA’s enforcement efforts under the statute. These protections are primarily addressed in Section 404, which regulates the discharge and depositing of dredge and fill material in protected wetlands. Under Section 404, not only does the EPA have the authority to take action to minimize loss of protected wetlands, but it has the authority to implement programs focused restoration and cost recoupment as well.

Along with managing EPA compliance, companies engaging in operations regulated by Section 404 must also engage with the U.S. Army Corps of Engineers in many cases. The Corps manages the Section 404 permit process (and monitors permit compliance), and it works alongside the EPA to investigate suspected unpermitted discharges. Since violations of Section 404 can trigger substantial penalties, Section 404 compliance is critical for companies engaging in (or intending to engage in) operations with potential wetlands impacts. We have relevant experience here as well; and, if your company needs to comply with Section 404, we can assist with permitting, implementing necessary safeguards, inspection preparedness, and enforcement defense as necessary.

3. Oil Spill Prevention and Remediation

Under the Clean Water Act, it is a violation of federal law to, “discharge . . . oil or hazardous substances to waters of the U.S. or their adjoining shorelines in quantities that may be harmful to the public health or welfare or the environment.” To avoid spills, the EPA requires that companies engaged in “non-transportation-related oil facilities . . . make and implement plans to prevent oil discharges,” and failing to make or implement the necessary plans for oil pollution prevention can itself lead to costly EPA enforcement.

Under the EPA’s Spill Prevention Control and Countermeasures (SPCC) program, the agency conducts both random and targeted inspections to assess compliance. During these compliance inspections, companies and industrial facilities must be prepared to provide their SPCC Plans for review, and they must be prepared for invasive scrutiny—both in the form of walk-through inspections and in the form of personnel interviews. Even if a company’s operations do not present a substantial risk for environmental contamination, a flawed approach to an EPA inspection can create substantial exposure and lead to further interaction with the EPA.

Along with SPCC Plans, companies that operate non-transportation-related oil facilities must have Facility Response Plans (FRPs) as well, and these, too, are subject to inspection by the EPA. Companies must also have the procedures in place to implement their FRPs when necessary; and, when faced with a spill, effective execution of a properly crafted FRP is essential for avoiding EPA enforcement. At Oberheiden P.C., we help companies implement custom-tailored SPCC Plans and FRPs, and we provide effective representation for oil-related EPA inspections, investigations, and enforcement proceedings.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Other Areas of Wastewater and Discharge-Related Environmental Compliance

In many cases, companies that need to comply with the Clean Water Act will need to comply with other federal statutes as well. Several statutes include provisions that pertain, either directly or indirectly, to wastewater management and the discharge of pollutants into U.S. waters. These statutes include (but are not limited to):

  • Coastal Wetlands Planning, Protection & Restoration Act (CWPPRA)
  • Endangered Species Act (ESA)
  • Federal Agriculture Improvement and Reform Act (FAIRA)
  • National Environmental Policy Act of 1969 (NEPA)
  • North American Wetlands Conservation Act (NAWCA)
  • Rivers & Harbors Appropriation Act (RHAA)
  • Transportation Equity Act for the 21st Century (TEA-21)

As a full-service environmental compliance and defense law firm, we work to ensure that our clients have a comprehensive understanding of their statutory and regulatory obligations, and then we work with our clients to help them efficiently address these obligations in a way that minimizes any disruptions or delays to their operations. With team members including former federal prosecutors and EPA personnel, we have a clear understanding of the EPA’s enforcement priorities and tactics as well, and we rely on this understanding to help our clients avoid unnecessary consequences resulting from EPA inspections and investigations.

FAQs: Clean Water Act (CWA) Compliance & EPA Enforcement

When Do Companies Need to Comply with the Clean Water Act?

The Clean Water Act regulates the discharge of pollutants into U.S. waters, depositing of dredging and fill material, and the storage and disposal of oil and other environmentally hazardous substances. It applies not only to companies that engage in operations with direct environmental impacts, but also to companies that may have an environmental impact due to an inadvertent discharge or spill.

What Are the Penalties for Non-Compliance with the Clean Water Act?

The Clean Water Act includes provisions for both civil and criminal enforcement. While civil enforcement can lead to substantial fines, criminal enforcement can lead to both fines and imprisonment. Companies found in violation of the Clean Water Act can face injunctions, denial (or loss) of permits, and other administrative penalties as well.

How Can Companies Effectively (and Efficiently) Manage Clean Water Act Compliance?

Effectively (and efficiently) managing Clean Water Act compliance starts with gaining a clear understanding of the statutory provisions that are relevant to your company’s operations. Once you have a clear understanding of your company’s obligations, then you can take a custom-tailored approach to developing and implementing an environmental regulations compliance program.

What Do I Need to Know About Facing an EPA Inspection?

The EPA conducts inspections under the Clean Water Act both at random and based on specific environmental concerns. In all cases, EPA inspections can present substantial risks for companies that are not prepared.

Should I Engage Defense Counsel for an EPA Inspection or Investigation Under the Clean Water Act?

In light of the risks involved, companies facing EPA inspections and investigations under the Clean Water Act should promptly engage experienced defense counsel. At Oberheiden P.C., our former federal prospectors and EPA personnel have experience on both sides of these high-stakes inquiries, and we rely on this experience to provide strategic advice and proactive representation to our clients.


Contact the EPA Compliance Team at Oberheiden P.C.

If you would like to speak with a member of our EPA compliance team about your company’s obligations (or risks) under the Clean Water Act, we invite you to get in touch. To schedule a complimentary initial consultation at Oberheiden P.C., please call 888-680-1745 or tell us how we can help online today.

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