Posted on February 5, 2013 by Patricia Barmeyer
The Clean Water Act’s antidegradation rule has been a fertile ground for dispute and litigation in Georgia, as elsewhere. A recent decision by the Georgia Court of Appeals, Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, 734 S.E 2d 242 (Ga. App. 2012), has interpreted the Georgia version of the Rule and provided some clarity for POTWs and others seeking NPDES effluent limits.
Georgia’s Antideg Rule is identical to the federal rule and provides that in the case of a proposed discharge to high quality waters, that quality shall be maintained unless allowing lower water quality is “necessary to accommodate important economic or social development,” and water quality to protect existing uses is assured.
The Rule is not a model of clarity, to say the least, and has been subject to varying interpretations. EPA has chosen not to provide more specific direction and has, on multiple occasions, reiterated that it is up to the States to decide how to interpret and apply the Antideg Rule, through each State’s implementation procedures.
Georgia EPD’s implementation procedures interpret the rule to require a determination whether the proposed new or expanded discharge is “necessary to accommodate important economic or social development….” If it is determined the discharge is “necessary,” that is, that a no-discharge alternative is not economically feasible, then EPD proceeds to consider the application and to impose permit conditions based on the applicable technology-based standards and in-stream water quality standards.
In contrast, the environmental groups, and an Administrative Law Judge, have taken the position that the Antideg Rule requires EPD to consider whether “allowing the lower water quality resulting from the permitted discharge is actually necessary.” That reading led the ALJ to conclude that, without regard to cost or benefit, the permit limits for the POTW must be set at the lowest level that is technologically feasible, so long as the permittee can afford it. As interpreted by the ALJ, the antidegradation analysis would be not just the beginning of the analysis of a proposed new discharge, but also the end point. According to that view, the antideg analysis would ask, not just whether the discharge is justified, but also, what is the lowest limit that is feasible. Application of the Antideg Rule in this fashion would short-circuit all considerations of in-stream water quality standards and technology-based limits. It would eliminate any distinction between POTWs and industrial facilities — they both would have to meet the lowest limit that is technologically feasible that they can afford.
The Georgia Court of Appeals has now agreed with EPD’s reading of the Antideg Rule. The court held the rule requires only a determination whether lower water quality generally is necessary to accommodate economic or social development, not a permit-specific analysis of whether the exact effluent limits in the permit are necessary. The opponents to the permit have asked the Georgia Supreme Court to take up the issue; a decision on the petition for certiorari is expected by mid-2013.