Water Law

Holland & Knight’s Water Team covers a myriad of issues regarding water supply and wastewater treatment, including legislation, regulatory matters, system operations/development, real estate, finance and litigation. Our team includes attorneys who focus their practices in the areas of both riparian rights (Eastern states) and prior appropriation (Western states) water law.

Legislation and Rulemaking

Many of our lawyers devote their practices to legislative representation. With offices in capital cities and other major markets, our team provides legislative representation to water/wastewater clients before Congress and state legislatures.

We represent private sector and local government clients in reviewing proposed water management rules, identifying issues and solutions, working with the proposing agency to improve the rule language, and otherwise assuring that the rule ultimately adopted is effective and workable.

Permitting

Our experienced team is dedicated to advancing client projects through the water and environment permitting process, as well as in evaluating, modifying and, if necessary, challenging the permitting efforts of others. We also assist our clients in obtaining permits from jurisdictional agencies and governmental entities on behalf of utilities, other government entities and the private sector, as well as in transferring existing permits from acquired entities.

Our experience includes:

• representation of a manufacturing client with existing water permits in evaluating long-range plans for operation, obtaining agency support for long-range approval, and handling the consolidation and renewal of existing quantities
• representation of a mining client in defending challenges from competing uses to surface water management systems
• representation of municipal clients concerning minimum spring flows for endangered species habitats and alternatives for additional public supply
• representation of a municipal water provider with a pumping station on Lake Michigan in obtaining permits from the state of Illinois and the U.S. Army Corps of Engineers, including installation and operation of critical infrastructure

Stormwater Management

Clients seeking to obtain federal appropriations for stormwater projects are effectively represented by Holland & Knight's Water Team. Our experience to date includes $5.35 million for an innovative four-county Big Haynes Creek Stormwater Project that may serve as a national model for other stormwater facilities. The federal appropriation permitted the four metro counties surrounding Atlanta, Georgia, to cooperate on a stormwater treatment facility which collects stormwater runoff for the entire Big Haynes Creek watershed in a large retention pond. The water is then treated to serve as a drinking source for the four counties. We also assisted with related Federal Clean Water Act requirements (i.e., Total Maximum Daily Load), EPA requirements and other regulatory hurdles.

Compliance and Enforcement

We have specific experience representing water/wastewater clients in enforcement actions brought by state and federal regulatory authorities as well as public interest groups who may oppose a permit application or an operational technique. Should litigation arise, our Water Team works with clients to develop litigation strategies and evaluate potential settlement opportunities. We have successfully argued challenges to environmental permit denials and defended clients in enforcement actions taken by federal and state environmental regulatory agencies and the Department of Justice.

Water System Development and Operations

The Water Team regularly handles the day-to-day legal issues arising from the development and operation of water supply systems. Our involvement includes developing and modifying state legislation to help water agencies organize and successfully finance and construct water supply systems; obtaining water rights; drafting and assisting in the administration of construction contracts concerning water system facilities; and negotiating water purchase and sale agreements. Our lawyers continually work with water system clients as their service areas grow and change.

We have considerable experience in acquiring necessary interests in land, permits and other approvals for the construction of water system infrastructure – from pumping stations to reservoirs and stand pipes to water mains, metering stations and pressure adjusting stations. This experience ranges from simple easement acquisitions to multiple-party real estate transactions to acquire appropriate sites, to obtaining consent to locate facilities in remote areas. 

Relying on our extensive background in public bidding and public works construction law, we provide legal advice on every aspect of the construction and expansion of water systems. Our work includes developing model bidding and contract forms, resolving bidding disputes, and providing contract administration. We also provide guidance for bond and insurance matters.

We draft and negotiate complex water purchase and sale agreements on behalf of both purchasers and sellers of bulk water supply for ultimate retail sale to customers. Additionally, we are involved in cutting edge issues for water suppliers, including the effects of chemical additives on drinking water and the integrity of water system infrastructure.

Alternative Project Delivery Methods

Our team represents local governments and water/wastewater utilities in structuring and implementing water, sewer and residuals management projects through design/build and design/build/operate project delivery approaches. We provide legal assistance, as needed, to determine the legality of such approaches in the applicable jurisdiction as well as the preparation of the necessary procurement documents, such as requests for qualifications and requests for proposals. Utilizing our experience within the water industry, we provide valued support during the proposal evaluation process, and draft the design/build and design/build/operate agreements, as well as the related transaction documents, to be negotiated with the successful proposer.

The breadth of Holland & Knight's capabilities enables us to provide representation to our clients in all the areas of law which are necessary for these transactions to be successful, including contract, environmental, construction, real estate, labor, finance and tax.

Acquisitions and Contracts

Drafting/Negotiation

A significant part of the firm’s water practice involves representation in connection with the sale of water and wastewater utility facilities. Our team has participated in drafting purchase and sale agreements, negotiating environmental insurance policies, drafting indemnification agreements, negotiating consent decrees and orders, negotiating and interpreting franchise agreements between water/wastewater utilities and local governments, drafting service agreements and other contracts necessary for a successful water/wastewater utility operation, and drafting other forms of transactional documentation.

Finance

The Water Team possesses substantial experience in all types of debt and equity transactions, including tax-exempt bonds, sale-leasebacks, synthetic leases, like-kind exchanges, tax credits, tax-increment financing, general leases and participating mortgages. Working with seasoned lawyers from the firm’s corporate and tax practice areas, we are able to select the transaction structure that best matches each client's financial and operational goals. Our team has been involved in numerous financings of various water or wastewater facilities or their delivery systems.

Privatization

We provide comprehensive services to governments, private sector investors, operators and intermediaries in the privatization and restructuring of water assets operating in the United States and abroad. Among U.S.-based law firms, we have one of the largest groups of attorneys knowledgeable about Latin American culture and fluent in Latin American languages. In addition, our lawyers have great depth of knowledge and experience with the political and legal systems in this region and have established close and effective relationships with major law firms throughout Latin America.

Our privatization capabilities include:

• design and implementation of a regulatory and legislative framework; concessions and management contracts and institutional arrangements: institutional settings, legislative initiatives, regulatory regimes (pre/post privatization, including tariff and competition issues)
• acting as sellers’ counsel in all aspects of the process – from overall divestiture and privatization strategy design, transaction design and supervision, legal audits, contractual drafting, and negotiation and post privatization issues
• acting as investor counsel in the performance of legal audit exercises, support in proposal preparation, bid support and contractual negotiations
• project and asset-based financing
• corporate finance

Our experience includes:

• representation of the governments of Peru and Ecuador in a World Bank-financed project for the implementation of build, operate and transfer (BOT) structures for the construction and management of water and sewer systems as well as solid waste disposal systems
• acting on behalf of a multilateral financial institution in the design of the regulatory framework leading to private sector participation in several South American countries
• development, in collaboration with the Ministry of Finance and national public works development bank, of a U.S. Export-Import Bank model project and finance documentation to support design, construction and operation of municipal wastewater treatment plants
• negotiation of U.S. Export-Import Bank financing facilities in the aggregate of $60 million for the engineering and construction of regional and municipal aqueducts and potable water transportation infrastructure

Ratemaking

Our lawyers have experience in rate cases before several regulatory commissions, including our recent representation of a water utility in obtaining a significant rate increase through proposed agency action procedures.

In addition to regulatory ratemaking, we have experience in rate disputes governed by common law ratemaking principles where the water provider is not subject to utility commission jurisdiction. For example, in Illinois, we represented a water retailer in an intricate ratemaking arbitration against the wholesale supplier, resulting in a long-term contract for water supply at one of the lowest rates in the Chicago metropolitan area.

Litigation

The Water Team has extensive experience in litigating claims arising from water supply issues. The Team has been involved in many third-party challenges to rules and permits desired by clients, as well as challenges initiated by clients. Members of our Environmental Litigation Team also have substantial experience handling toxic tort lawsuits arising from allegations of groundwater contamination migrating to the drinking water.

While we are quite prepared to litigate vigorously, we are also open to the consideration of alternative settlement procedures, such as mediation and/or arbitration, when appropriate. We also offer preventative counseling strategies, such as alternative dispute resolution, to avoid litigation of this nature.