Sixth Circuit Upholds Permit Shield Defense Under CWA General Permits

A Sixth Circuit Court of Appeals panel has ruled for the first time that the Clean Water Act's (CWA) permit shield defense protects a permittee covered under a General Permit from a citizen suit alleging discharges of toxins not specifically authorized by the permit.  The 2-1 ruling issued January 27 in Sierra Club v. ICG Hazard, No. 13-5086 (6^th Cir. Jan. 27, 2015) is the first federal appellate decision extending the two-part permit shield test adopted by the Fourth Circuit in Piney Run Preservation Association v. County Commissioners of Carroll County, MD, 268 F. 3d 255 (4^th Cir. 2001) to permittees covered by general, as opposed to individual, CWA permits.  General permits are issued to cover classes of activities, and permittees obtain coverage under the general permit terms by submitting a notice of intent to be covered for specific locations and operations.  In the only previous federal appellate court case involving whether a permit shield defense is applicable