Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County
318 Ga. App. 499
| Ga. Ct. App. | 2012Background
- EPD issued an NPDES permit to Forsyth County for Fowler/Shakerag WRFs discharging into the Chattahoochee River with six million gallons per day and limits on fecal coliform and phosphorus.
- UCR petitioned OSH challenging the permit on six grounds; ALJ dismissed five on summary determination and allowed an evidentiary hearing on the anti-degradation issue.
- After a lengthy hearing, the ALJ found the permit violated the anti-degradation rule and remanded for reissuance with stricter limits (23 cfu/100 ml fecal coliform and 0.08 mg/l phosphorus).
- Superior Court reversed the ALJ on the anti-degradation interpretation, and held the ALJ lacked authority to remand with revised limits; case proceeded to discretionary appeal to this Court.
- This Court reviews de novo legal errors in the superior court’s appellate review of an ALJ’s decision; interpretation of statutes/regulations is also de novo.
- Holding: the superior court’s interpretation of the anti-degradation rule was incorrect in part, and the ALJ lacked authority to direct the EPD director to revise permit limits; other aspects affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the anti-degradation rule require permit-specific limit justification? | UCR | Forsyth County/EPD | Yes/no? The court held that the rule requires only a threshold determination that any degradation is necessary for economic/social development, not permit-specific limits. |
| Is the 1997 EPD guidance process a controlling rule? | UCR | Forsyth County/EPD | The superior court erred in treating the guidance as a codified rule; it is not a Board-promulgated rule. |
| Does Hughey v. Gwinnett County control under the amended rule? | UCR | Forsyth County/EPD | No controlling force due to changes in the rule after Hughey; Hughey is not controlling here. |
| Did the ALJ exceed authority by ordering permit-revision directives to the EPD director? | UCR | Forsyth County/EPD | Yes; ALJ lacked authority to order the EPD director to revise permit limits. |
Key Cases Cited
- Hughey v. Gwinnett County, 278 Ga. 740 (Ga. 2004) (interpretation depends on the rule in place at time of decision)
- Coastal Marshlands Prot. Comm. v. Altamaha Riverkeeper, Inc., 315 Ga. App. 510 (Ga. App. 2012) (final judgment review of agency action; final order appealability)
- Center for a Sustainable Coast, 286 Ga. App. 521 (Ga. App. 2012) (stare decisis considerations in administrative appeals)
- Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356 (Ga. App. 2010) (administrative decision review standards)