Stephanie Rich


In this comment I argue for a narrow interpretation of the Clean Water Act (CWA) permit shield by analyzing the recent federal cases addressing the shield’s scope. A narrow interpretation calls for a greater level of compliance and disclosure on behalf of the permit holder in order to invoke the shield’s protection. This argument also includes a higher standard of “reasonable contemplation” of pollutants on the part of the regulator. The first section of this comment gives a brief background of the CWA, the National Pollutant Discharge Elimination System (NPDES), and the permit shield provision. The next section presents the Environmental Protection Agency’s (EPA) policy on the shield, and introduces foundational case law. The comment then provides an overview of the issues and court decisions that have governed the recent debate over the scope of the permit shield. Lastly, the comment considers the important implications of the court decisions and the underlying arguments surrounding the dispute. Ultimately, I find that a narrow construction should apply because this interpretation adheres most closely to the fundamental premise of the CWA—to protect the waters of the United States.