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, http://www.caldwellforhouse.com/votes/hb-397-state-soil-and-water-conservation-commission-revise-provisions-provisions/ (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, http://www.garivers.org/gawater/getinvolved.html (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.

Georgia Court of Appeals Upholds Class Certification in Air Pollution Case

The Georgia Court of Appeals,  on July 16, issued its opinion affirming the Effingham County Superior Court’s decision to certify a class consisting of the owners of properties neighboring Georgia-Pacific’s Savannah River Mill in Rincon. Plaintiffs, owners of four of the neighboring properties, argued that the mill releases hydrogen sulfide gas onto their properties and sought class certification to include properties located within a mile of the mill. Plaintiffs brought claims for nuisance, trespass, and negligence in connection with fumes created in connection with the mill’s wastewater treatment process.

In so holding, the Court of Appeals majority found that the proposed class is too large to handle by joinder, that the common questions of law or fact prevail over individualized questions relative to individual properties, and that the claims raised by the proposed class would be common.

A three-judge dissent questioned whether plaintiffs had established that the mill’s hydrogen sulfide releases actually affected each property included in the class and concluded that fact-intensive inquiries related to the scope of injuries at each property would render the case too unwieldy to manage as a class action.

Georgia-Pacific has indicated that it will seek a review by the Georgia Supreme Court.

The case is Georgia-Pacific v. Ratner, No. A13A0455.

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 EPD Proposing New Requirements on New Inert Waste Landfill Operations

Georgia EPD is proposing to require any new inert waste landfill operations to obtain an inert waste landfill solid waste handling permit. It also provides a transition period to allow existing inert waste landfill operations to comply with these new requirements or close under the existing inert waste landfill permit by rule closure criteria.

EPD will be requiring specific design and operational criteria, and will impose a solid waste handling permit process to replace the existing notification of permit by rule (PBR) operations.

 

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.