Regulatory and Permitting

How are environmental concerns shaping today’s regulatory landscape for industry? 

Veronica Keithley
Partner, Natural Resources

Environmental concerns are a consistent piece of how we regulate industrial activity and the environment in the United States. As we continue to see regulation develop and expand, there is an opportunity for it to work hand in hand with what businesses are working towards and towards successful completion of projects.

What trends are emerging in water permitting—especially around new contaminants and coverage requirements?

One of the major trends that we see in water permitting in Washington and Alaska and really nationwide is that the regulatory agencies are pushing towards more expansive permitting, particularly out on really the cutting edge of science for certain types of emerging contaminants. PFAS is a substance known as per- and polyfluoroalkyl substances, and PCBs, which are polychlorinated biphenyls, as well as 6PPD-quinone. These are three of the emerging chemicals contaminants that we are seeing in stormwater and wastewater. State and federal agencies are choosing to regulate when we really are at a stage in developing lab techniques for evaluating those chemicals and really understanding them, is at a very, very early stage.

One of the questions that we have seen come up quite a bit since January 1st of this year when the Washington Department of Ecology issued a new version of the Industrial Stormwater General Permit, is the question of what extent of coverage folks need to have now for their industrial operations. Ecology changed the permit for 2025 and significantly expanded the industries and the areas within an individual business's footprint that must have coverage. In particular, one of the questions that has come up relates to material handling facilities, portions of a property that are being used for the movement in and out of goods, particularly for intermodal facilities. Thus far, we are still looking for clarification from the agency on what the true extent of coverage will be for those types of facilities. Our recommendation is to, as always, take a conservative approach to permitting. It is easier to go back to an agency once you have received clarification and say, okay, we need to scale back the areas that we are putting into permit coverage because we have overcovered, overextended the coverage beyond what is required. That is much easier than going back to the agency and saying we should have had more coverage, so we need to change that now.

What changes are you seeing in permitting for stormwater, wastewater, and the layering of federal and state requirements?

One of the developments that we are seeing in permitting for stormwater and for wastewater is an expansion in the amount of combined state and federal requirements that are going into individual permits. Traditionally, water permitting has been established through delegated authority from the federal government, and that authority and those regulations then are enacted through a state-issued permit. We are seeing more and more particularly in the Pacific Northwest, in Washington in particular, that more state law requirements are being included in permits, which creates two different schemes that permittees are working under. Because the federal and state regulations are different and the requirements are different, it creates a question on enforcement of how that enforcement will go forward, whether it is federal or state or combined, and how individual issues under a permit can be addressed through litigation. As we see a continued overlap between or combination of state and federal requirements, we actually have seen a case go up from Washington to the U.S. Supreme Court concerned with the extent to which litigation could be brought under federal law for both federal and state regulatory requirements in a single permit.

How can clients stay ahead of fast-changing permitting requirements?

The two ways to try to stay ahead of the changes that we are seeing in the expansion that is coming in permitting is really two steps. The first is to, as an industry through trade associations if available or as individual companies, to stay out on the edge of the science and understand the developments that we are seeing in both the risks from those contaminants, and in the approvals and methodologies that we are seeing to be able to test for them. By understanding what is coming as the science develops, then industries and businesses are able to stay ahead of what may be expected from them by the agencies. In many cases at this point, we do not have proven technology or approved methods to evaluate these types of contaminants. Individual businesses as permittees have to make decisions on how they are going to best comply with the requirements that are placed into the permits.

So the second step to be able to be as proactive as possible is to document what a business is doing to comply, to make sure that the documentation is available at the time, that the decisions are being made, so that it is not something a company is trying to recreate or remember, once the agencies come knocking.

How do you guide clients through understanding and documenting their obligations?

One of the best ways that we can help businesses, and specifically permittees, in trying to stay aware of what is going on is by monitoring the developments that we see coming from the agencies, participating in listening sessions and notifications of requests for comment so that we see what the agencies are considering. We also partner heavily with consultants who are actually the ones out implementing the permits, understanding what the science is saying, and we build off of their technical expertise to inform the legal advice that we provide.

What regulatory shifts do you expect in the coming years?

One of the changes that we would expect to see particularly in the next five years related to environmental regulation for water, is this movement of continuing to push into regulation of emerging contaminants like PFAS, PCB, 6-PPDQ. As the technology develops and the scientific collection of information advances to understand the impacts from these potential contaminants, the agencies will continue to push to regulate them at a more intense level. At this point in Washington and in many places across the country, we are seeing the regulatory agencies take an approach of collecting data about emerging contaminants, but not setting regulatory requirements related to them. We would expect in the next five years, probably, and certainly in the next 10, that approach of monitoring but not regulating is going to change, and we will see specific regulations for various industries and types of businesses related to these emerging contaminants.