The U.S. Supreme Court has left in place a Ninth Circuit Court of Appeals ruling that calls into question the scope of “permit shield” defense in Clean Water Act enforcement actions.
The permit shield under the Clean Water Act (33 U.S.C. § 1342(k)) protects a National Discharge Elimination System (“NPDES”) permit holder against liability for certain pollutant discharges that the permit does not explicitly mention, as well as for discharges of pollutants in compliance with explicit permit limits. The Second, Fourth, and Sixth Circuits have held that the permit shield extends to discharges of pollutants that were disclosed to the permitting authority and within the permitting authority’s reasonable contemplation, even if those discharges are not expressly identified in the permit.
Continue reading Supreme Court Leaves Ninth Circuit ‘Permit Shield’ Ruling in Place