The Clean Water Act Permit Shield - Recent Battles
Atlanta partners Doug Henderson and Fitzgerald Veira, and Richmond partner Brooks Smith’s article, “ The Clean Water Act Permit Shield—Recent Battles,” appeared in the ABA’s Spring environmental journal, Natural Resources & Environment.
Surveying one of the most important defenses under the Clean Water Act, the “permit shield” defense, the article takes a critical look at several recent interpretations by the Fourth, Sixth, Seventh, and Ninth Circuits, concluding that, while the defense is never sure-fire, it is still viable and available to defendants in a variety of settings.
“Historically, permittees have been allowed to augment the scope of a general permit’s shield through disclosures and actions made pursuant to the general permit process,” the trio state in their closing. “But … this may no longer be defensible. It may be safer for a facility to seek coverage under an individual permit, where the scope of the shield may be fashioned entirely out of facility-specific disclosures in the application process.”