In a potentially important decision to all dischargers of treated wastewater, a Georgia state court has recently handed a victory to environmentalists utilizing antidegradation regulations as a basis for a permit challenge.

A state's water quality standards are required to include a statewide antidegradation policy (see 40 C.F.R. §§ 131.6 and 131.12[c][1]). The policy must ensure the maintenance of the level of water quality necessary to protect the existing uses (see id). Limited degradation of ambient water may be allowed if certain procedural requirements required by the state's planning process are undertaken (40 C.F.R. § 131.12). The amount of degradation permitted depends on the designation or "tier" applied to the water body. Tier one requires maintenance of existing in-stream water uses and the level of water quality necessary to protect them, tier two requires water quality better than necessary to protect fishable and swimmable uses, and tier three applies to the protection of outstanding national resources waters. The antidegradation policy "serves the purpose of ensuring that bodies of water which have had their quality improved through years of anti-pollution efforts are not permitted to backslide, reversing those years of improvements, except under limited circumstances" (Rivers Unlimited, Inc. v Schregardus, 685 N.E.2d 603, 608 [Ohio Ct. Cm. Pl., 1997]).

In Terence D. Hughey, et al. v Environmental Protection Division, Georgia Department of Natural Resources and Gwinnett County, Civil Action No. 02-CV-2770-C (Superior Court of Hall County, Georgia, March 4, 2003), environmental groups used Georgia's antidegradation regulations to challenge a National Pollutant Discharge Elimination System (NPDES) permit issued by Georgia's Environmental Protection Division (EPD) for an expanded Gwinnett County publicly owned treatment works (POTW) facility on Lake Lanier. Under the state and federal antidegradation rules at issue, before approving the discharge of pollutants to high-quality waters, the discharge must be justified in order to accommodate significant economic or social development in the area in which the waters are located. In the lawsuit, the petitioners alleged that EPD violated antidegradation provisions by allowing degradation of the lake without the requisite showing that it was necessary.

Prior to the lawsuit, an administrative law judge held in favor of EPD and upheld the permit, holding, in part, that (1) it was the petitioner's burden to show by a preponderance of the evidence that the POTW's discharge was unnecessary for the social and economic development in the affected portions of the state and (2) the POTW discharge provided for necessary social and economic development by returning needed water to the basin.

The Georgia court reversed, holding that the burden of proof falls on EPD to determine that the additional discharge from the POTW is necessary for the social and economic development in Gwinnett County and that changes to the discharge refers to the quality of the surface water at issue and not to the discharge itself.

This case is one of the few in which a court has considered the actual application of antidegradation rules in the context of a permit challenge. Until now, most decisions involving antidegradation regulations arise in the context of regulatory challenges by environmental groups seeking to establish more stringent antidegradation programs. (See, for example, Ohio Valley Environmental Coalition v. Whitman, Civil No. 3:02-0059, United States District Court for the Southern District of West Virginia, pending case seeking review of a November 26, 2001, decision by EPA to approve West Virginia's antidegradation implementation procedures.) The Hughey decision is notable because the court placed the burden of proof on the delegated permitting authority to demonstrate discharges that degrade water quality are necessary. There is little case law interpreting antidegradation requirements or addressing the burden of proof in this context. EPD has appealed. In the meantime, however, the case provides possible support to other environmental groups seeking to challenge other NPDES permits.

Stewart T. Leeth is in the environmental solutions group with McGuireWoods LLP in Richmond, VA.

SW July/August 2003