June 01, 2017

A Dent in the Clean Water Act’s Permit Shield

Douglas J. Crouse

The Clean Water Act (CWA) prohibits the discharge of pollutants from a “point source” to “waters of the United States,” except as authorized by a National Pollution Discharge Elimination System (NPDES) permit issued by the U.S. Environmental Protection Agency (EPA) or a delegated state. 33 U.S.C. §§ 1311, 1342, 1362 (2012); 40 C.F.R. § 123.25(a). Section 402(k) of the CWA, commonly known as the “permit shield” provision, generally provides that permit holders are shielded from both agency and citizen enforcement as long as the holder complies with the terms of the permit. Specifically, section 402(k) provides that “[c]ompliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of section 1319 [government enforcement actions] and 1365 [citizen suits] of this title, with sections 1311 [effluent limitations], 1312 [water quality related effluent limitations], 1316, 1317, and 1343 of this title[.]” 33 U.S.C. § 1342(k). Essentially, an NPDES permit holder should expect that it is authorized to discharge pollutants not expressly limited in its permit as long as two requirements are met: (1) the permit holder complies with application requirements; and (2) the unregulated discharge was within the reasonable contemplation of the permitting authority at the time the permit was issued. Piney Run Pres. Ass’n v. Cnty. Commissioners of Carrol Cnty., 268 F.3d 269 (4th Cir. 2001). This is not necessarily the case, however, in light of a federal district court decision that was recently affirmed by the Fourth Circuit Court of Appeals.

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