In Georgia, the National Pollutant Discharge Elimination System (“NPDES”) under the Clean Water Act of 1972 is implemented through state permits issued by the Environmental Protection Division (the “EPD”) of the Georgia Department of Natural Resources (“DNR”). An NPDES Permit allows a person or entity to discharge pollutants into waters of the state without violating state and federal laws.
Cities and counties in the North Georgia Metropolitan area are subject to requirements of NPDES Permits for their storm water drains. In order to discharge storm water from streets and gutters into state waters, cities and counties subject to an NPDES Permit must comply with the terms of the EPD issued permit.
One of the terms of the separate NPDES Permits issued to the City of Alpharetta, the City of Sandy Springs, and Forsyth County, Georgia require these governmental entities to ensure that storm waters are treated by adequate structural controls before discharging into state waters. These structural controls are known as Best Management Practices (“BMP’s”).
Accordingly, all storm water drains in Forsyth County, Sandy Springs, and the City of Alpharetta must rely on Best Management Practices to legally comply with the NPDES Permit.
The literal terms of the Permit and Georgia and United States law also require that cities and counties maintain Best Management Practices in order to comply with the terms of their NPDES Permit. This means they must perform maintenance of detention ponds and pipes that convey their storm waters to outfalls into streams, rivers, and ponds.
Failure to maintain BMP’s constitutes a violation of the terms of the NPDES Permit, which places cities and counties in violation of state and federal laws.
Forsyth County, Sandy Springs, and Alpharetta are routinely and actively evading their responsibilities for implementation of BMP’s by passing ordinances that limit the extent of their ownership of their storm water systems. However, this limitation of ownership simply means that the counties and cities are violating state and federal law. Their evasion is further an attempt to pass off the responsibility for maintaining down hill pipes and detention ponds to private property owners including home owner associations in subdivisions with associations. When the county and cities cannot force associations to step up to the plate, they legislate that private property owners must maintain the government’s system. Basically, the governments are evading their legal responsibilities by attempting to force private groups to comply with the law for them. (Home owners associations, on the other hand, may also be equally as guilty of evading laws when they refuse to maintain detention ponds and pipes that drain subdivision properties.)
In circumstances where the cities and county are failing to follow the law regarding storm system maintenance and are causing a nuisance to private property owners, they are also in violation of the Bill of Rights and the Fifth and Fourteenth Amendments to the United States Constitution, as well as equivalent provisions of the state constitution. These constitutional provisions prohibit the taking of private property without just compensation to private property owners.
At Teague & Zeliff, LLC, we are currently involved in a series of active suits that are challenging the evasion of these responsibilities by goverment. These suits are filed in state courts, but we are preparing to file suits in federal court. Federal court may be the only option to enforce constitutional limits on our government if the state courts refuse to enforce the state part of federal and state NPDES Permitting to the injury of the property owners that are stuck with fee simple property ownership of the governments' utilities.