Navigating the Clean Water Act Permit Shield Absent Clear Court Guidance

Understanding the Scope of the Shield, Leveraging the Defense, Minimizing Liability

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, June 16, 2015

Recorded event now available

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Course Materials

This CLE course will provide guidance to counsel of National Pollutant Discharge Elimination System (NPDES) permit holders and challengers on the scope of the Clean Water Act’s Sect. 402(k)’s permit shield, recent appellate court decisions that raise questions about the shield, and the implications of those decisions. The panel will offer best practices for general and individual permits and the use of the permit shield defense.

Description

Over the past several months, three federal appellate courts have issued decisions concerning the application of the Clean Water Act’s permit shield, leaving permit holders and their counsel without clear guidance. The permit shield has offered protection for permit holders from challenges provided the permit holder was in compliance with the NPDES permit.

The Ninth Circuit in Alaska Community Action v. Aurora Energy Serv. (Sept. 2014) and the Fourth Circuit in Southern Appalachian Mtn. Stewards v. A & G Coal Corp. (July 2014) demonstrated that the shield is not impenetrable. Both courts limited the scope of the permit shield. However, the Sixth Circuit in Sierra Club v. ICG Hazard (Jan. 2015) preserved the shield defense for general permit holders in compliance with the permit.

Environmental counsel must now navigate the murky waters of the CWA’s permit shield. Challengers need to understand how to take advantage of this state of uncertainty, and permit holders should cautiously proceed when applying for NDES permits and seeking to use the shield as a defense.

Listen as our panel of environmental attorneys examines the scope and meaning of Section 402(k)’s permit shield, the recent appellate court decisions and the implications of those decisions. The panel will also examine the government’s position on the permit shield and offer best practices for general and individual permits and the use of the permit shield defense.

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Outline

  1. Scope of Section 402(k)’s permit shield
  2. EPA’s historical interpretations
  3. Recent appellate court decisions
    1. Southern Appalachian Mtn Stewards v. A & G Coal Corp. (4th Cir. July 2014)
    2. Alaska Community Action v. Aurora Energy Serv. (9th Cir. Sept. 2014)
    3. Sierra Club v. ICG Hazard (6th Cir. Jan. 2015)
    4. Implications of those decisions
  4. Government’s position on the permit shield
  5. Best practices
    1. General and individual permits – applications and permitting
    2. Use of the permit shield defense

Benefits

The panel will review these and other key issues:

  • What is the scope of the permit shield for individual permits? For general permits?
  • What impact will the recent federal court decisions have for permit holders? For future permit holders?
  • What steps should counsel take to leverage the permit shield and minimize risk of liability?

Faculty

Buente, David
David T. Buente, Jr.
Partner
Sidley Austin

Mr. Buente is co-leader of the Firm’s Environmental group and represents clients in complex environmental...  |  Read More

Chris M. Hunter
Chris M. Hunter
Member
Jackson Kelly

Mr. Hunter's practice includes litigation and client counseling on environmental matters at the state and federal...  |  Read More

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