Author Archives: Dennis McCarthy

Water Infrastructure Funding Bill Now in House-Senate Conference Comm.

Helpful legislation to make low-interest Federal loans available to support large drinking and waste water projects is in a US House-Senate conference committee to iron out differences between the Senate Bill passed last May and the House version past last Fall.

Click here to read the article on the “WaterWorld” website.


EPA’s Retroactive Veto Stands

The EPA has the power to retroactively veto Clean Water Act permits issued by the Army Corp of Engineers years prior.

The US Supreme Court has declined to review a case challenging that retroactive veto, therefore, a lower court’s ruling, that the EPA’s actions were within its power, stands.

The decision pleased environmentalists but it outraged businesses which invest capital in projects on the basis of permits lawfully obtained.

How actively the EPA wields this power is uncertain but the fact that the EPA has the power is significant.

Click here to read an article on this issue from Environmental & Energy Publishing.


Hydraulic Fracturing – Legal Developments

Latham & Watkins, the law firm, is hosting a webinar on legal developments in hydraulic fracturing, which while not solely a water topic, involves many water companies vying to clean up produced water for re-use.  In my experience, Latham’s webinars have been excellent.  Well worth the time.



A Complimentary 60-minute Webcast


Hydraulic Fracturing Update:
Legal Developments and Trends


Tuesday, March 18, 2014

9:00 a.m. Pacific  |  11:00 a.m. Central  |  Noon Eastern




Latham & Watkins invites you to a complimentary 60-minute webcast addressing recent key developments related to hydraulic fracturing, including:


·      New federal regulatory developments, including recent petitions requesting US EPA to extend chemicals laws to hydraulic fracturing



Please click here to register for the webcast. A confirmation message will be sent to your email address with instructions for logging on to the webcast.




·      Latest regulatory developments in California and other states


·      Recent developments in federal and state court litigation


·      International developments and proposals related to hydraulic fracturing



Joel Mack, Partner, Houston – Moderator


Ann Claassen, Counsel, Washington, D.C.

Sara Orr, Counsel, Washington, D.C.

Daniel Brunton, Counsel, San Diego

Julie Hatcher, Partner, Washington, D.C.

Nicole Vanderlaan Smith, Associate, Orange County



For more information and questions about this event, please contact Michele Bravo at or +1.213.892.3054.



Latham & Watkins LLP is a leading global law firm dedicated to working with clients to help them achieve their business goals and overcome legal challenges anywhere in the world. The firm has earned considerable market recognition based on a record of landmark matters and a unified culture of innovation and collaboration. From a global platform of offices covering the world’s major financial, business and regulatory centers, the firm’s lawyers help clients succeed. For more information, visit


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Latham & Watkins certifies that this activity has been approved for MCLE credit by (i) the State Bar of California in the amount of 1.00 hour of general credit, (ii) the MCLE Board of the Supreme Court of Illinois in the amount of 1.00 hour of general credit, (iii) the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.20 hours of total CLE credit (all of which qualify as hours of credit toward certification in civil trial law), (iv) an application for New York accreditation of this program is currently pending, (v) and the State Bar of Texas Committee on MCLE in the amount of 1.00 hour of general credit.  An application for approval for this program will be submitted to the Virginia Mandatory Continuing Legal Education Board after the program.


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Public Private Partnerships

More talk, but little mutual understanding or plans to fix the problem.

At the 21st Annual Canadian Council for Public Private Partnerships, it was reported that utilities from both sides of the Atlantic discussed the importance of private funding to upgrade our water infrastructure.

I suspect that for the 21st time, the utilities expressed concern that ratepayers would resist rate increases especially if some of the increase was going into the pockets of private companies.

At some point in the future, the discussion may evolve to the fact that rates are going up in all events to continue to offer basic service.

Maybe then, the focus will shift to how to attract private capital, much of which avoids public deals.

Click here for more of the same old thing.

2013 Water Technology Update from BlueTech Research

BlueTech Research, the well-regarded water technology team, hosted a webinar on December 12th which provides a good, detailed overview of the current state in several sectors of water technology.

The recording is just over 90 minutes so it is likely most efficient to review the slides (Click Here), to identify the segments of most interest to you.

Then you could go to the webinar recording (Click Here) and skip to the sections of greatest interest.

BlueTech Research’s description with links follows:



Our intelligence service contains various elements to support your business development strategies and technology development. BlueTech® Insight Reports and Webinars identify new areas of market opportunity and growth, the Innovation Tracker and Company Reports help identify and assess innovative new water technologies, and Intelligence Briefings provide market insights and track patenting, licensing, investment and commercial activity.

Siemens to Sell Water Technology Unit

Company logo of Siemens AG is pictured atop office building in BerlinSiemens has been reported to sell its water technology unit to a financial investor, AEA Investors, for $862 million.

Unconfirmed sources suggest the unit generated $1.3 billion in revenue in 2012 and its earnings before interest, tax, depreciation and amortization (EBITDA) was between $70 million and $80 million.

Click here to go to the Reuters article.

Ag Stormwater Runoff Not Regulated by EPA

downloadA Federal District Judge has clarified that agricultural stormwater discharge from certain agricultural businesses is exempt from permitting and regulation under the Federal Clean Water Act.

In a case with ramifications well beyond the Hardy County West Virginia poultry farmer and the Chesapeake Bay, the American Farm Bureau defeated the EPA and several environmental groups.

The court held that agricultural stormwater runoff from the poultry farm that did not qualify as a “confined animal feeding operations” (shortened to “CAFO”) was not subject to regulation.

Historically, the EPA has held that it can regulate medium and small CAFO on a case by case basis (link to EPA document).

The definition of a CAFO, however, includes elements which involve judgment (link to EPA definition).

Click here to go to the story for background.

IRS Clarifies Guidance for ITC Qualification

The IRS recently clarified certain conditions for projects to qualify for the investment tax credit.  The clock is ticking on this ITC as described in my post, (Investment Tax Credit Clock Ticking).

The clarifications were:

1. There is now a safe harbor provision that projects put into service by January 1, 2016, will automatically be deemed to qualify as continuous.  Projects put into service after January 1, 2016 will face the burden to prove that construction was continuous to qualify for the ITC.

2. It is the project itself that matters when qualifying for the ITC, not the project owner which, therefore, permits transfers of project ownership during construction.

Click here or copy and paste the following to read a helpful background article on this topic by Wilson Sonsini, the law firm.

Federal Jurisdiction to Expand

The Obama administration has just proposed a significant expansion of what is included as the “waters of the United States” over which the Federal government has jurisdiction under the Clean Water Act. 

The proposal, based on the position that bodies of water are interconnected, would have an impact on a wide range of entities, governmental and private, dealing with water and development issues.

Links to an overview by Bracewell & Giuliani, a law firm, as well as articles by the Environmental Protection Agency are provided below.


Future of Desalination?

MiniElectDesalChipResearchers at The University of Texas at Austin and the University of Marburg in Germany have developed a technique for water desalination which requires less energy than current techniques and eliminates the use of a membrane entirely.  While further work is required to achieve the level of desalination required for acceptable drinking water and for scale-up to commercial production volumes, the technique holds promise.

Click here to go to the article describing the technique.