November 25, 2019

The Clean Water Act Permit Shield—Recent Battles

Douglas A. Henderson, E. Fitzgerald Veira, and Brooks M. Smith

Like many environmental laws, the Clean Water Act (CWA) includes a “permit shield.” Under this provision, the holder of a NPDES permit is shielded from both agency enforcement and citizen suits, provided—and this is key—the permittee complies with permit terms. The battle is typically not whether a permit condition has been violated. That part of the analysis is relatively straightforward. The real war is over whether the permit shields a permittee for pollutants actually discharged, which are known by agencies to be present in the discharge, but not specifically incorporated into a permit limit or condition.

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