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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Tuesday, September 28, 2010

Georgia Implementation of the Clean Water Act

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 U.S. 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. Id. § 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 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).  On June 28, 1974, the State of Georgia 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.
Hughey v. JMS Development Corp.,  78 F.3d 1523, 1524 -25 (11th Cir. 1996).  

The standards that make untreated storm water flows illegal can be found in regulations of the Georgia Department of Natural Resources.  "''Effluent standard or limitation' is defined to include 'a permit or condition thereof issued under section 1342 of this title.' 33 U.S.C. § 1365(f)(6). Section 1342(b), in turn, authorizes states to administer their own permit programs, and thereby issue state permits, after receiving EPA approval. Thus, a plain reading of this statute indicates that state permits and conditions fall within the effluent standards or conditions covered 'under this chapter.'"  Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1005 (11th Cir. 2004).  
 Storm water discharges into waters of the United States or "state waters" under Georgia law are regulated.  If Best Management Practices, which are a condition of available National Pollution Discharge Elimination Permits (an "NPDES Permit") are not provided or followed, then the discharges violate both Georgia DNR regulations and federal law.  
(3) Permit Requirements.
(a) Authorization to Discharge. Storm water point sources, as defined in this Paragraph, are point sources subject to the NPDES permit program. The Director may issue an NPDES permit or permits for discharges into waters of the State from a storm water source covering all conveyances which are part of that storm water point source. Where there is more than one owner or operator of a storm water point source, any or all discharges into that storm water point source may be identified in the application submitted by the owner or operator of the portion of the storm water point source that discharges directly into waters of the State. Any such application shall include all information regarding discharges into the storm water point source that would be required if the dischargers submitted separate applications. Dischargers so identified shall not require a separate permit unless the Director specifies otherwise. Any permit covering more than one owner or operator shall identify the effluent limitations, if any, which apply to each owner or operator. Where there is more than one owner or operator, no discharger into the storm water point source may be subject to a permit condition for discharges into the storm water source other than its own discharges into that system without his consent. All dischargers into a storm water point source must either be covered by an individual permit, an area wide permit or a general permit issued to the owner or operator of that portion of the system that directly discharges into waters of the State.
Rule 391-3-6-.16 of the Georgia Department of Natural Resources, GA ADC 391-3-6-.16.

Basically, some degree of treatment is required for all storm water discharges that fall into Georgia streams, rivers and lakes.   The degree of treatment may range from storm water detention or retention areas to Best Management Practices.    
(4) Degree of Waste Treatment Required. All pollutants shall receive such treatment or corrective action so as to ensure compliance with the terms and conditions of the issued permit and with the following, whenever applicable:
(a) Effluent limitations established by the EPA pursuant to Sections 301, 302, 303, 306, 307, 308, 318, and 405 of the Federal Act;
 (c) Notwithstanding the above, more stringent effluent limitations may be required as deemed necessary by the Division (a) to meet any other existing Federal laws or regulations, or (b) to ensure compliance with any applicable State water quality standards, effluent limitations, treatment standards, or schedules of compliance; and
 (d) Calculations and specifications of effluent limits and standards shall be made in accordance with the provisions of Federal Regulations, 40 CFR 122.44(k) and 122.45; provided, however, that in regard to 40 CFR 122.44(k)(2), the feasibility of establishing numeric effluent limitations shall be made by the Director based upon best professional judgment.
GA ADC 391-3-6-.16.
 The other thing to remember before deciding on whether to contact an attorney regarding flooding problem on property is that regardless of the application of water quality control standards under state and federal law, storm water flooding to a neighbor or downstream owner can also amount to a nuisance regardless of water quality issues or discharges into streams.  The only trigger for liability is human interference with the natural flow of water.  "An interference with the natural flow of surface water may also amount to a nuisance, without the presence of the element of danger to health." City of Macon v. Cannon,  89 Ga.App. 484, 492 (1954).   At Teague & Zeliff, LLC, the attorneys follow an approach that looks at federal and state water quality standards as well as common law nuisance as possible means to provide a remedy for storm water and flooding issues.     

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