Georgia Court of Appeals Interprets Narrative Water Quality Standard for Odor and Color

At issue in Altamaha Riverkeeper, Inc. v. Rayonier Performance Fibers, LLC et al., 2018 WL 2947915, Case No. A18A0594 (Ga. App. June 13, 2018), was the definition of the phrase “interferes with legitimate water uses” in the narrative standard established by Ga. Comp. R. & Regs. r. 391-3-6-.03 (5)(c), which provides: “All waters shall be free from material related to municipal, industrial or other discharges which produce turbidity, color, odor or other objectionable conditions which interfere with legitimate water uses.” The Georgia Court of Appeals held that the trial court properly interpreted the water quality standard as prohibiting unreasonable interference with legitimate water uses, but erred when it failed to remand the case back to the ALJ to make factual findings.

In 2015, EPD renewed an NPDES permit issued to Rayonier Performance Fibers, LLC, authorizing it to discharge effluent into the Altamaha River from its pulp plant in Jesup. Altamaha Riverkeeper, Inc. petitioned for an administrative hearing, asserting that it and its members had been adversely affected by the issuance of the permit. An ALJ reversed the permit, interpreting the phrase “interfere with legitimate water uses” to mean any interference with such uses. Applying that standard, the ALJ concluded that Rayonier’s effluent had the reasonable potential to cause a violation of the narrative water standard for odor and color which interfered with legitimate water uses such as fishing, swimming, and boating.

On review, the superior court reversed the ALJ, finding EPD’s interpretation that the narrative standard protected the use of waters from unreasonable interference, rather than any interference, was reasonable. The superior court further found that Rayonier’s discharge did not unreasonably interfere with legitimate uses of the river and therefore reversed the ALJ’s decision and affirmed the issuance of the permit. The Riverkeeper appealed, arguing that the trial court erred 1) by interpreting a pertinent regulation as prohibiting only unreasonable interference with legitimate water uses and 2) by making factual findings about the reasonableness of the interference instead of remanding the case to the ALJ to make factual findings consistent with its order.

On appeal, the Court of Appeals looked to the plain language meaning of the term “interference” and its context in the regulation as a whole. In accordance with the rule that a reviewing court must give deference to an agency's interpretation of its own rules and regulation, the Court also considered EPD's interpretation of the standard and concluded that the EPD could reasonably find that the narrative standard prohibited only unreasonable interference with legitimate water uses. At the ALJ hearing, EPD argued that the Altamaha was a multi-use body of water which required a reasonable accommodation of all reasonable uses, including industrial discharges, and that the section at issue had the lowest designation of “fishing,” which should not be interpreted as requiring a more protected use. The Court of Appeals found this interpretation to be reasonable and consistent with the Water Quality Control Act and state regulations governing water use and therefore affirmed the trial court’s decision that the narrative standard prohibited only unreasonable interference with legitimate water uses. However, the Court agreed with Riverkeeper that the trial court should have remanded to the ALJ to make factual findings to determine whether the permitted discharge constituted an unreasonable interference.

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