The Fate of Georgia EPD’s Antidegradation Policy is Muddier than Ever

Posted on February 23, 2012 by Richard Horder

Current federal law requires states to develop and adopt a statewide antidegradation policy to protect existing in-stream uses for high quality waters.  Georgia has done so under Rule 391-3-6-.03.  Georgia’s antidegradation policy describes what requirements must be met before the State issues a permit under the National Pollutant Discharge Elimination System (“NPDES”) and allows a wastewater point source (i.e. wastewater treatment plan) to discharge pollutants into surface waters.  However, in apparent response to the U.S. Environmental Protection Agency’s (“EPA”) potential revision of its requirements for state antidegradation policies and an Administrative Law Judge’s recent ruling, the Georgia Environmental Protection Division (“EPD”) published proposed amendments to its antidegradation policy in September 2011.

In its proposed amendments, EPD attempts to set out exactly when the antidegradation review process is triggered and what an applicant requesting a new or expanded point source discharge must demonstrate to obtain the permit.  EPD’s proposed rule and related guidelines explain the three basic steps as follows: (1) applicant may demonstrate that proposed discharge will not result in “significant lowering of water quality” (if satisfied, no antidegradation analysis is required); (2) if water quality is significantly lowered, applicant must demonstrate that discharge will accommodate important social or economic development; and (3) applicant must demonstrate that no reasonable alternatives exist that would provide the needed wastewater capacity without authorizing a new or expanded wastewater discharge into surface waters.  The key to this new procedure is the definition of “does not significantly lower water quality.”   Specifically, if the proposed discharge of a pollutant is 10% or less than the remaining assimilative capacity for that pollutant in the receiving stream, then the new discharge per se “does not significantly lower water quality” and no antidegradation analysis is required.  These amendments appear to respond to EPA’s concerns over EPD’s implementation of an antidegradation policy, and clearly appear to respond to the ALJ’s decision in Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, Georgia

In September 2010, Upper Chattahoochee Riverkeeper, Inc. (“UCR”) filed a petition challenging the issuance by EPD of an NPDES permit (“Permit”) authorizing Forsyth County to discharge 6 million gallons per day (“MGD”) of wastewater into the Chattachoochee River from the County’s existing waste water treatment facility and the new Shakerag facility.  The Permit set limits of 200 colony-forming units per 100 milliliters (“cfu/100mL”) and 0.3 milligrams per liter (“mg/L”) for fecal coliform bacteria and phosphorous, respectively.  UCR claimed that the Permit, specifically the expanded limits, threatened the present and future health of the Chattahoochee River without EPD having undertaken a proper study, modeling or antidegradation analysis to show that the degradation of the river was necessary to accommodate Forsyth County’s economic and social development. 

In a decision found later to be overreaching, the ALJ held that any lowering of water quality in the receiving water triggers an antidegradation review and such review must analyze both the technical and economic feasibility of any alternatives, as well as a no-discharge permit alternative.  The ALJ made this conclusion in part by referencing EPD’s failure to define certain terms and therefore the ALJ adopted the EPA’s guidelines.  More surprising, the ALJ also adopted the permit discharge limits suggested by UCR which were much lower than those in the original permit or even those allowed for recreational waters by Georgia’s Department of Natural Resources.  The ALJ then remanded the permit to the Director of EPD for reissuance with revised monthly discharge limits of 23 cfu/100mL for fecal coliform bacteria and 0.08 mg/L for total phosphorous.   

Forsyth County appealed to the Superior Court of Forsyth County which reversed the ALJ’s decision finding that the ALJ had exceeded her authority.  The Court concluded the ALJ could not create an enhanced review by wholesale adoption of EPA guidelines nor set specific effluent limits.  EPD’s recent proposed amendments state clearly that effluent limits cannot be set pursuant to an antidegradation analysis, but only by EPD pursuant to Rule 391-2-6-.06.  The Court remanded the matter to the ALJ, ordering the antidegradation review standard be applied as codified in EPD’s implementing procedures without reference to EPA guidance documents. 

However, the battle is not over as UCR has appealed this decision to the Georgia Court of Appeals. As of this writing, both parties have submitted their briefs for review and oral argument is yet to be set.  In light of EPD’s recent proposed amendments, this decision is one to watch as the appellate court’s holding could have a significant impact on restrictions in future NPDES permits.