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ARTICLE · 12 JANUARY 2017

New Circuit Split Raises Questions About ‘Permit Shield' Defense In Clean Water Act Cases

Thompson Coburn LLP
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Can a discharger violate a general narrative state water quality standard incorporated into its NPDES permit when the permit does not contain specific numeric effluent limits on the discharge?

United StatesEnvironment
Paul Sonderegger
Paul Sonderegger
Eric Boyd
Eric Boyd
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Can a discharger violate a general narrative state water quality standard incorporated into its national pollutant discharge elimination system ("NPDES") permit when the permit does not contain specific numeric effluent limits on the discharge? The answer is "yes" according to a new decision handed down in the Fourth Circuit. 

The decision is significant for two reasons: (1) it expands the universe of potential violations under the Clean Water Act ("CWA"); and (2) it conflicts with another recent decision from the Sixth Circuit that ironically relied on the reasoning of a prior decision of the Fourth Circuit. This new circuit split creates ambiguity regarding the scope and applicability of the "permit shield" defense when CWA lawsuits are brought against dischargers.

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