May 19, 2003

Georgia Court Issues Landmark Decision Reversing Discharge Permit

In one of the first decisions in the country interpreting and applying the federal and State of Georgia “anti-degradation” regulations, a Georgia superior court reversed an earlier decision by an administrative law judge (“ALJ”) that approved a permit authorizing the discharge of 40 million gallons per day of treated sewage into Georgia’s Lake Lanier. The decision was issued by Hall County Superior Court Judge John Girardeau on March 4, 2003, and addressed a permit that had been issued in November 2000 by the Georgia Environmental Protection Division (“Georgia EPD”) to Gwinnett County, a suburban county near Atlanta, under the National Pollutant Discharge Elimination System (“NPDES”) permitting program. Under Georgia law, the Superior Court judge was acting as an appellate court in reviewing the ALJ decision.

In reversing the ALJ’s decision, the Hall County Superior Court judge concluded that the permitted discharge would degrade the water quality of Lake Lanier and that the ALJ misinterpreted the applicable federal and state anti-degradation regulations, 40 C.F.R. § 131.12(a)(2) and Georgia DNR Rule 391-3-6-.03(2)(b). In particular, the superior court judge concluded that Gwinnett County’s wastewater treatment plant was able to meet stricter limits than those set in the permit and, as a result, the lower water quality that would be allowed by the permit was not justifiable to provide necessary social or economic development as required by 40 C.F.R. § 131.12(a)(2) and Georgia DNR Rule 391-3-6-.03(2)(b).

In addition, the superior court judge concluded that the Georgia EPD failed to comply with federal and state law governing public notice and comment when the agency did not allow public comment on a new discharge location in the permit. The Georgia EPD had circulated a draft permit for public notice and comment that identified a specific location and depth for the discharge into Lake Lanier, but then issued a final permit with a different discharge location and depth that had not been subject to public notice and comment.

Lake Lanier is one of the region’s most important natural resources, generating $5 billion a year in economic benefits for the area and providing economic, environmental, and aesthetic benefits to millions of individuals each year. The petitioners challenging the permit are the Lake Lanier Association, the Upper Chattahoochee Riverkeeper, the Sierra Club, and local environmentalist Terence Hughey. The Lake Lanier Association and Mr. Hughey are represented in the case by Stephen O’Day and Andrew Thompson of Smith, Gambrell & Russell, LLP..

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