The Permit Shield Defense: What The Fourth Circuit Did Not Address In Ohio Valley

Deborah Barnard is a Professional Growth & Development Partner for Holland & Knight's Boston office.

Jessica Early is a Partner for Holland & Knight's Boston office.

Dianne Phillips is a Partner for Holland & Knight's Boston office.

The Fourth Circuit recently held that the permit shield defense did not protect a National Pollutant Discharge Elimination System (NPDES) permit holder from enforcement of a general narrative effluent limit prohibiting discharges that cause a state water quality standard (WQS) violation, even though the permit holder disclosed the pollutants in question during the permitting process and the permitting agency decided not to impose specific numeric effluent limits. See Ohio Valley Environmental Coalition v. Fola Coal Co., LLC, No. 16-1024, 2017 WL 35726 (4th Cir. Jan. 4, 2017).

The permit shield defense is derived from 33 U.S.C. § 1342(k). In a prior opinion, Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, 268 F.3d 255 (4th Cir. 2001), the Fourth Circuit held that the permit shield protects NPDES permit holders from liability for...