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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer
Wednesday, September 29, 2010
Tuesday, September 28, 2010
Where a property owner is suffering flooding from streets or other areas where water has not been treated the owner may have a claim under Georgia or federal law. The Clean Water Act of 1972, 33 U.S.C. Section 1251, et seq., incorporates state standards as limitations on discharge under the Act. A discussion of the history of water pollution laws may help explain the state implementation and setting of water quality standards. An opinion of the United States Court of Appeals for the Eleventh Circuit, considering a case generated in a Georgia District Court, explained the context of local laws regarding storm water discharges as follows:
In 1972 Congress passed the Clean Water Act (“CWA”) amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal water pollution control program which had “been inadequate in every vital aspect” since its inception in 1948. EPA v. State Water Res. Control Bd., 426
200, 203, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976). The amended CWA absolutely prohibits the discharge of any pollutant by any person, unless the discharge is made according to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. § 1311(a). This “zero discharge” standard presupposes the availability of an NPDES permit, allowing for the discharge of pollutants under the conditions set forth in the permit. U.S. § 1342(a)(1). NPDES permits are usually available from the Environmental Protection Agency (“EPA”); however, 33 U.S.C. § 1342(c)(1) suspends the availability of federal NPDES permits once a state permitting program has been submitted and approved by the EPA. Thus, if a state administers its own NPDES permitting program under the auspices of the EPA, applicants must seek an NPDES permit from the state agency. See 33 U.S.C. § 1342(c)(1); Gwaltney v. Chesapeake Bay Foundation, 484 Id. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). On June 28, 1974, the State of U.S. was authorized by EPA to administer an NPDES program within its borders. The Georgia agency responsible for administration of that program is the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources. EPA-issued NPDES permits are thus not available in Georgia . Georgia
Hughey v. JMS Development Corp., 78 F.3d 1523, 1524 -25 (11th Cir. 1996).