GUYTON — The future the City of Guyton’s wastewater treatment appears to be secure.
On May 20, the Georgia Supreme Court reversed a Georgia Court of Appeals ruling in favor of Craig Barrow III’s challenge of the state’s decision to permit a wastewater treatment plant near his land.
“I tell you with pride — and I think those of you who have been here awhile know that — it was solved by the Georgia Supreme Court on the very point that you heard me argue the first time in Chatham County Superior Court,” Guyton City Attorney Ray Smith said during Tuesday’s Guyton City Council meeting. “Remember that?”
“Yes, sir,” Mayor Jeff Lariscy said.
After the meeting, Smith refused to elaborate on the ruling, saying it would be “inappropriate.” He referred the Effingham Herald to the Georgia Supreme Court summary at https://law.justia.com/cases/georgia/supreme-court/2019/s18g0944.html. It says:
“At issue in this case is whether the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”) properly issued a permit to the City of Guyton to build and operate a land application system (“LAS”) that would apply treated wastewater to a tract of land through spray irrigation. Craig Barrow III challenged the issuance of that permit, arguing that, among other things, EPD issued the permit in violation of a water quality standard, Ga. Comp. R. & Regs., r. 391-3-6-.03 (2) (b) (ii) (the “antidegradation rule”), because it failed to determine whether any resulting degradation of water quality in the State waters surrounding the proposed LAS was necessary to accommodate important economic or social development in the area. An administrative law judge rejected Barrow’s argument, finding that the rule required an antidegradation analysis only for point source discharges of pollutants and the LAS at issue was a nonpoint source discharge. The superior court affirmed the administrative ruling. The Court of Appeals reversed, concluding that the plain language of the antidegradation rule required EPD to perform the antidegradation analysis for nonpoint source discharges, and that EPD’s internal guidelines to the contrary did not warrant deference. The Georgia Supreme Court granted certiorari review in this matter to consider what level of deference courts should afford EPD’s interpretation of the antidegradation rule, and whether that regulation required an antidegradation analysis for nonpint source discharges. The Court concluded the Court of Appeals was correct that the antidegradation rule was unambiguous: the text and legal context of the regulation showed that an antidegradation analysis was required only for point sources, not nonpoint sources. Therefore, the Court reversed.”
The following are the facts of the case as heard during oral arguments before the Georgia Supreme Court on Jan. 22:
In October 2013, Richard E. Dunn, then director of the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources, issued a permit to the City of Guyton, authorizing it to build a “land application system” facility, i.e. a waste treatment facility, on a 265-acre tract of land in Effingham County. Wastewater collected in the city’s sewer system would enter the facility where it would undergo a series of treatments, after which the treated water would be sprayed on fields at the site. About 44 acres would be devoted to the spray irrigation, which would operate up to five days a week.
The site is bound on one side by a dirt road, across which lies a 2400-acre farm owned by Craig Barrow III. On the other side of Barrow’s farm is the Ogeechee River. Barrow uses his farm for pine forestry and recreation. He also promotes wildlife by growing food plots for animals such as turkey and deer. One section of his land is wetlands that provide a habitat for animals, including frogs, toads, salamanders and turtles. Barrow appealed the permit, complaining to an administrative law judge that it would pollute and degrade the waters on his property and harm the wetlands and various plant and animal life. He claimed that the EPD had issued the permit without complying with Georgia’s “anti-degradation rule,” which has to do with the degrading of water quality. The rule states that water quality levels that support fish, wildlife, and recreation “shall be maintained and protected unless the division finds…that lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.” The EPD and the vity claimed that issuance of the permit was not in violation of the anti-degradation rule.
Following a hearing, the administrative law judge upheld the EPD’s issuance of the permit. The judge ruled that while EPD’s guidelines specify that the anti-degradation analysis is triggered when a new “point source” discharge could degrade water quality, the guidelines did not specify that the analysis is required for “non-point” source discharges, such as the waste treatment facility. Therefore the rule does not apply. (The Georgia Water Quality Control Act defines “point source” as “any discernible, confined, or discrete conveyance,” such as a pipe, ditch, channel, tunnel or wall. It defines a “non-point source” as “any source which discharges pollutants into the waters of the state other than a point source.”) Barrow then petitioned the superior court for judicial review, maintaining that the EPD had issued the permit without complying with the anti-degradation rule. The superior court also upheld the issuance of the permit as legal. Barrow then appealed to the Georgia Court of Appeals, the state’s intermediate appellate court, which reversed the decision, finding that the administrative law judge and superior court had erred in their interpretation of the anti-degradation rule. “The proper interpretation of the anti-degradation rule, which adheres to its plain language, is that before a permit can be issued that allows lower water quality, the EPD must find that degradation of the water quality is necessary to accommodate important economic or social development in the relevant area. Notably, the anti-degradation rule does not limit its application to point source discharges.”