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.

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.

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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.

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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.

 

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Georgia Department of Revenue Proposes Conservation Tax Credit Rule Changes

The Georgia Department of Revenue Income is proposing a change to the Tax Division Rule on conservation tax credits. Interested parties seeking to comment on the proposed Rule should review the notice for further guidance. The notice and an exact copy and synopsis of the proposed Rule may be found on the Department’s website at:

https://etax.dor.ga.gov/inctax/newregs/10-16-12__Rule_560-7-8-_50_Conservation_Tax_Credit.pdf

 

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Land Protection Brand of Georgia EPD Organizational Changes

The Land Protection Branch of Georgia EPD recently announced several organizational changes. The reorganization became effective on August 1, 2012.

Included among the Branch reorganization are:

• The position of Assistant Branch Chief has been established and is held by Jeff Cown

• A new Special Projects role for data management and work process improvements is held by Renee Hudson Goodley

• Response and Remediation Program now includes the Brownfields Unit. Derrick Williams has assumed the role of Program Manager, moving from the Underground Storage Tank Program

• The new Program Manager for the Underground Storage Tank Program is Lon Revall

• Acting Manager of the Solid Waste Program, pending selection of a permanent program manager, is Melanie Henry

• Jan Simmons heads the Hazardous Waste Management Program, under which the Hazardous Waste Compliance Program and the Lead and Asbestos Unit have been consolidated

• Jim Brown leads the Hazardous Waste Corrective Action Program, and part of the Hazardous Waste Management remediation projects and associated staff now fall under that Program

• The Waste Reduction and Scrap Tire Units are being consolidated into the Solid Waste

Program.

 

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.