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ICG Hazard: Permitting Away the Clean Water Act

Mar 25, 2020

Mae Manupipatpong

Volume 43 (2016) - Issue 2

In Sierra Club v. ICG Hazard, the Sixth Circuit held that a general permit holder is only liable for discharges expressly prohibited by his/her permit terms as long as 1) he/she adequately disclosed other discharges and 2) the permitting agency reasonably contemplated those discharges at the time the permit was issued. ICG Hazard was the first time that a court of appeals had ever considered how the permit shield provision should apply in the general permit context. This Note discusses why extending the permit shield to discharges under general permits would result in detrimental environmental consequences against which the Clean Water Act is meant to protect. It then offers alternative legal avenues that environmental plaintiffs can take to ensure permittees respect state water quality standards.