Five Georgia Environmental Bills to Watch in 2015

Georgia legislature warms up to solar panels, gets protective of coastal marshes, withdraws support for electric cars, and sacrifices LEED certifications in favor of jobs.

April 2, 2015 marked final adjournment of the 2015 Georgia legislative session. Upon adjournment, the legislature sends five key environmental bills to Governor Deal for signing.

(1) HB 57 – Solar Power Free-Market Financing Act of 2015 (“Solar Freedom Bill”)

The Solar Freedom Bill allows property owners to finance the addition of solar panels to their properties as they would finance cars or homes. The legislation eases hurdles associated with purchasing solar panels which generally requires arduous up-front costs, historically deterring property owners. Solar developers supporting the bill have complained that Georgia’s ambiguity on the issue made it difficult and risky to sell in the state. Across the aisle, power companies voiced concern that legislation would allow for rival retail utilities to enter the market. They were pacified, however, with inclusion of certain protections in the bill allowing them to maintain a monopoly system, controlling the size of panels, limiting liability related to equipment use, and allowing them to control safety requirements. See, Ray Henry, Georgia likely to permit third-party lending for solar panels, Athens Banner-Herald, (Mar. 22, 2015).

(2) SB 101 – “Salt-Water Marsh Bill”

SB 101 was crafted to insulate marshlands lining Georgia’s coastline. The marshes provide food and shelter for Georgia bird, fish, and wildlife species. The bill preserves Georgia’s marshes by protecting them with 25-foot buffers in which unregulated development is prohibited. Additionally, the bill allows projects approved by the U.S. Army Corp of Engineers to be decided on a case-by-case basis based on local variances. Advocates for the bill, however, say it does not go far enough. Former director of Georgia’s Environmental Protection Division, Carol Couch, points out that the bill allows for variances inconsistent with those allowed for rivers and streams, making it less protective. See, Carol Couch, Carol Couch: Former EPD chief: Fix marsh-buffer bill, Savannah Morning News, (Mar. 26, 2015).

(3) HB 170 – Transportation Funding Act of 2015 (“Transportation Bill”)

HB 170 seeks to raise money for improvements to Georgia’s transportation system including the construction of new highway projects, maintenance of existing infrastructure, bridge repair and safety enhancements, with priority given to the state’s most highly congested highway areas. If signed, the bill would allow local municipalities and counties to collect a 1% sales tax on gasoline sales. In addition, the bill (i) creates a “highway user impact fee” imposing a new $50-$100 tag fee on trucks and busses; (ii) creates a $5/per night tax on hotel and motel bookings; and (iii) imposes a $300/yearly fee on alternative fuel commercial vehicles. Additionally, marking the end of the legislature’s honeymoon with electric vehicles, the new legislation imposes a $200/yearly fee on users of privately owned electric vehicles and eliminates the $5,000 state tax credit allowed on low-emission vehicles and zero emission vehicles (including electric vehicle purchases). See, HB 170, Transportation Funding Act of 2015, Georgia Municipal Association, (Apr. 14, 2015).

(4) HB 255 – “Green Certification Bill”

The “Wood Wars” wages on in Georgia. Under HB 255 no state contract for construction, addition, repair or renovation work will be enforced unless it requires contractors and subcontractors to exclusively use Georgia forest products. In addition, when a state project requires green building standards, the contractor applying for such project can only use green building standards that give certification credits equally to Georgia forest products grown, manufactured, and certified under the Sustainable Forestry Initiative, the American Tree Farm System, the Forest Stewardship Council, or other similar certifying organizations. Arguably, however, the bill creates more bubbles than bath where the Governor already decreed such requirements in a 2012 executive order. See, Stuart Kaplow, Georgia’s Legislation Banning LEED for State Buildings is Much Ado About Nothing, Green Building Law Update, (Mar. 2, 2015). Supporters of the bill argue that LEED certification unfairly reduces the amount of Georgia produced wood used during construction of new projects.  Consequently, motivation behind the bill is said to be job protection and creation. See, Georgia Passes Legislation Banning LEED for State Buildings, (Mar. 25, 2015).

(5) HB 397 – Soil and Water Commission Overhaul

Finally, as indicated in our prior post, HB 397 focuses on changes to the State Soil and Water Conservation Commission.  The bill curbs the Soil and Water Commission’s independence and streamlines its regulations by bringing it within the umbrella and oversight of the Department of Agriculture.

In total, the 2015 legislative session saw moderate environmental impact. We now await final signing of these bills by the Governor.

For advice and assistance with obtaining variances around marsh lands or other environmental/property related issues please contact Scott Hitch at

Georgia General Assembly Ends Water and Land Conservation Tax Credits

At the end of its recent session, the Georgia General Assembly passed HB 464 by unanimous votes to cap the land conservation tax credit at $30 million for 2016 and then eliminate it altogether at the end of 2016. HB 464 also repeals the tax credits for water conservation facilities and ending groundwater usage, effective at the end of 2016.

The original bill, introduced by Representative Bruce Williamson (R-115; Monroe), did not address the land conservation tax credit. Section 1 of the original bill repeals the tax credit for water conservation facilities; Section 2 ends the tax credit for shifting from ground-water usage; both repeals are effective at the end of 2016. The House Ways and Means Committee added Section 3 to the bill which caps and sunsets the land conservation tax credit at the end of 2016.

The bill was sent to the Governor on April 7, but so far, he has not signed it.

Georgia Governor Expected to Sign Overhaul to Soil and Water Commission (HB 397)

On Friday, March 27, 2015 the Georgia legislature passed HB 397, overhauling the State Soil and Water Conservation Commission (“Commission“). HB 397 is intended to curb the Commission’s independence and streamline its regulations. The bill transforms the Commission from an independent state agency to one within the umbrella and oversight of the Department of Agriculture. One state representative provides that the bill is expected to save the state up to $300,000. See Michael Caldwell, Legislative Tracker, (Mar. 9, 2015).

Final passage of the bill comes days after Brent Dykes, Executive Director for the Commission, gets axed. In a statement to the Atlanta Journal Constitution (“AJC“) Dykes stated, “[i]t has become increasingly evident that [it] is time for someone else to lead this organization; someone who has the full support of the current state board.” (emphasis added). Dykes leaves after having served within the Commission for 18 years. See Kristina Torres, Senate passes bill affecting state agency that just fired director, AJC, here (Mar. 26, 2015).

Pursuant to HB 397, Governor Nathan Deal will make appointments to the commission, with one member coming from each of the five soil and water conservation districts. Further, the reorganized commission will tap into the expertise of the University of Georgia’s College of Agricultural and Environmental Sciences through the appointment of the college’s Dean, Director, and two Associate Deans to advisory roles. Additionally, advisors to the Commission will include the Commissioner of Natural Resources, Commissioner of Agriculture, Director of State Forestry, and others.

The bill removes the Commission’s power to award grants of up to 40% of the cost of obtaining a permit under the Clean Water Act for the construction of new public water supply reservoirs. Additionally, the bill creates an Erosion and Sediment Control Overview Council (“Council“) to approve the Manual for Erosion and Sediment Control in Georgia (“Manual” or “Green Book“). The Green Book is created to provide guidance on best practices for protecting against erosion and sedimentation. The Council will be comprised of two legislators; members of the Environmental Protection Division of the Department of Natural Resources, Department of Transportation, and the State Road and Tollway Authority; representatives from the highway contracting industry and the electric utility industry; and a privately employed engineer.

Not all were on board with the bill, however. Organizations such as the Georgia Water Coalition (“GWC“) strongly opposed the bill, stating that it “pulls the commission into the Governor’s orbit by radically changing the composition of the commission’s primary governing board.” The GWC further echoed concerns that the council was comprised of “Georgia Department of Transportation officials with potential conflicts of interest. . .while failing to actually resolve the confusion over which edition of the Green Book design professionals and road builders should use to keep dirt out of our waterways.” Georgia Water Coalition, (Mar. 30, 2015).

HB 397 is currently before the Governor for signing and is expected to obtain final approval in the upcoming weeks.

Alabama Continues to Evaluate Water Use and Availability Issues

A combination of factors in Alabama has raised concerns about the reliability of adequate water in various parts of the State in the event of prolonged droughts or significant withdrawals. Industrial users and public water systems would be well advised to become familiar with, and participate in, current efforts by State government and the Legislature to address these problems.

Alabama has an abundance of surface stream mileage, and historically has had the water to fill those stream beds. In fact, Alabama is said to have more navigable channels than any other state. (A Treasure Taken For Granted). However, the availability and volume issues that have driven the long-running dispute between Alabama, Georgia, and Florida (the “Water Wars”) have gradually, but increasingly, manifested themselves in Alabama, including areas not directly affected by the river basins that have been the focus of the interstate disputes.

Unlike most states in the region, including specifically Georgia and Florida, Alabama does not have a system of permitting for water withdrawals. Instead, it only monitors water withdrawals above certain volumes through a system of registration and certification managed by Alabama’s Office of Water Resources. (OWR). The lack of a statutory system regulating water withdrawal and use leaves water users and prospective users to rely on the common law riparian rights system adopted by the State’s Courts in the Nineteenth Century. While the historic abundance of surface and ground water has spared the State from many serious fights over water access and rights, increasing use associated with both public and private growth signals a possible change and the consequent need for a more formal system of water allocations.

While many see a need for some type of action, the effort has been slow to build in the State. Recently, however, there is a renewed focus increasing the prospect for some type of change. In 2008, the Alabama Legislature created the Permanent Joint Legislative Committee on Water Policy and Management (the “Joint Legislative Committee”). (Act 2008-164 SJR28). In 2011, Governor Bentley created the Alabama Water Agencies Working Group (“AWAWG” – Homepage)to assess water resource programs and policies in the State and provide policy options and recommendations. AWAWG submitted its initial report on December 1, 2013. (First Report) And the Joint Legislative Committee has periodically conducted hearings around the State to assess the need for legislative solutions. In a recent interview (here), Senator Arthur Orr, the current chair of the Joint Legislative Committee discussed the future work of AWAWG and potential activity by the Legislature. While his prediction that the Legislature will take water management issues up in a piecemeal, rather than comprehensive, manner has drawn attention, perhaps the more significant point is that Alabama might take any action at all. The fact that the Legislature has appropriated $2 million for AWAWG to conduct detailed assessments of water resources and potential shortfalls indicates that this is a serious effort.

It appears likely that these ongoing actions by AWAWG and the Legislature will result in significant changes to Alabama law governing the withdrawal and use of water and including such issues as interbasin transfers and return discharges. It would be wise for users of water resources, particularly those who make significant withdrawals, to pay careful attention and participate in this process as it moves forward over the next few months in Alabama.

Georgia EPD Appoints New Brownfield Program Coordinator

Beth Blalock has been named the new Brownfield Coordinator for the Georgia Environmental Protection Division, replacing Madeleine Kellam, who has led the brownfield program since its inception and will retire at the end of 2014.

Ms. Blalock is an environmental attorney (UGA, 2003), with a background in environmental and land use law. Her prior experience includes approximately five years as general counsel for the Georgia Conservancy and, previously, with King and Spalding. Beth will begin work with the Georgia EPD within the coming weeks, allowing for at least a two-month transition period, during which she can work directly with Madeleine before her retirement.

Georgia EPD Changes Marsh Buffer Policy

On April 22, Judson Turner, director of Georgia’s Environmental Protection Division, issued a memorandum that changes how the agency and local government development authorities are to measure vegetated buffer requirements along coastal marshland.

The Georgia Erosion and Sedimentation Control Act requires a 25 foot vegetated buffer adjacent to waters of the state, in which no development or impervious surfaces may be located.

Since at least 2004, EPD has by policy measured the buffer along marshes from the jurisdictional line set by the Coastal Marshland Protection Act. With the policy change, the buffer zone will now be measured from the point of wrested vegetation, or the point at which wave or tidal action creates a sharp line between water flow and growing vegetation.

Environmental organizations already have commented that the policy change will effectively eliminate the buffer requirement along marshes and have vowed to seek a reversal of the policy change through legislation, litigation, or otherwise.

Director Turner stated publicly that the intention of the policy change is to ease the burden on local development authorities, which have reported difficulties in implementing the prior policy.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

EPA Announces Regional Administrator for Region 4 Office in Atlanta

On January 14, the U.S. Environmental Protection Agency announced that Heather McTeer Toney has been appointed by President Obama as regional administrator for EPA’s regional office in Atlanta.

Ms. McTeer Toney was the first African-American and first female to serve as the Mayor of Greenville, Mississippi, holding that post from 2004-2012. Thereafter, she served as the Executive Director of the Center for Excellence in Student Learning at Mississippi Valley State University, and as the principal attorney at Heather McTeer, PLLC.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Georgia DNR Board Postpones Vote on CAFO Rules Changes

On November 18, the Board of the Georgia Department of Natural Resources postponed a vote scheduled for December 3 on rules changes that, if approved, could expand the state’s hog industry by raising the threshold for stricter environmental controls on hog operations from 7,500 to 12,500 hogs per facility.

DNR indicated that the proposed rule changes would be subject to further review and study.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Georgia DNR Board to Consider Increases to CAFO Permitting Thresholds

The board of the Georgia Department of Natural Resources will consider changes to rules for permit requirements for swine feeding operations. The most significant change proposed is to increase the threshold for triggering the requirement to obtain a permit from Georgia EPD under the Georgia Water Quality Control Act.

Currently, a swine feeding operation is exempt from permitting if it manages less than 75,000 mature swine or 30,000 immature swine (less than 55 pounds).

The proposed rule would increase the permit threshold to 12,500 mature or 50,000 immature swine.

The proposed rule also changes permitting requirements for land application systems for the treatment and handling of liquid manure waste.

The proposed rule and commentary can be accessed here.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Florida to Sue Georgia over impact to Apalachicola Bay

Earlier this month, the State of Florida announced it will be filing a lawsuit in September in  the U.S. Supreme Court seeking to limit Georgia’s consumption of water from the Chattahoochee and Flint River Basins through an injunction. Florida claims that the unchecked consumption of the upstream water flows have negatively impacted Apalachicola Bay by increasing the salinity of the Bay, particularly in the summer and fall months. The reduction in the salinity is blamed for the reduction in the oyster population. Apalachicola Bay produces 90% of Florida’s oyster supply and 10% of the US domestic supply and is claimed to have the highest density of amphibians and reptiles north of Mexico. All the rivers discharging into the Bay draw from an approximate 20,000 sq. mile total watershed. The news release published by the Florida Department of Environmental Protection states that Georgia/Atlanta’s water consumption is expected to double to 705 million gallons per day by 2035. Previous negotiations between Georgia, Alabama and Florida have clearly failed to find a compromise acceptable to all three states.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.