Craig BARROW, III v. Richard E. DUNN Et Al.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

February 27, 2018

In the Court of Appeals of Georgia
A17A1385. CRAIG BARROW, III v. RICHARD E. DUNN et al.

BARNES, Presiding Judge.

Craig Barrow, III appeals the superior court’s judgment entered against him

in this case, wherein he challenged the propriety of a permit issued by Georgia’s

Department of Natural Resources, Environmental Protection Division (“EPD”) to the

City of Guyton (“City”) for a wastewater treatment facility. For reasons that follow,

we reverse the judgment and remand the case for proceedings not inconsistent with

this opinion.

On October 18, 2013, the EPD (acting through its Director1) issued a permit

to the City, authorizing the City to build and operate a land application system facility

(“LAS”) upon a 265-acre tract of land located in Effingham County (“Site”). In

connection therewith, wastewater collected in the City’s sewer system would enter

1
Since the permit was issued, (appellee) Richard E. Dunn has become the
Director of the EPD.
the facility and undergo a series of treatments,2 after which the treated wastewater

would be applied to fields at the Site using spray irrigation. Approximately 44 acres

of the Site will be devoted to sprayfield usage, and the sprayfield will operate up to

five days each week.

The Site is bound on one side by a dirt road, across from which lies Barrow’s

2,400-acre farm. (On the other side of Barrow’s farm is the Ogeechee River.) Barrow

uses his farm for pine forestry and recreation; he also promotes wildlife on his

property by growing food plots for animals such as turkey and deer. One section of

Barrow’s farmland (that lies next to the dirt road) is comprised of wetlands that

provide a habitat for, among other things, frogs, toads, salamanders, and turtles.

Complaining that surface water and groundwater traveling from the Site would

pollute and degrade the waters on his property and harm the wetlands and various

plant and animal life, Barrow administratively appealed the EPD’s issuance of the

permit.3 Among the grounds asserted, Barrow claimed that the EPD had issued the

2
See further footnote 13, infra.
3
See OCGA § 12-2-2 (c) (2) (A) (“[A]ny person who is aggrieved or adversely
affected by any order or action of the director shall . . . have a right to a hearing
before an administrative law judge of the Office of State Administrative Hearings .
. . acting in the place of the Board of Natural Resources.”).

2
permit without complying with Georgia’s antidegradation rule, Ga. Comp. R. & Regs.

391-3-6-.03 (2) (b). The EPD, and the City as intervenor, claimed that issuance of the

permit was not in violation of the antidegradation rule, citing further internal EPD

guidelines.

Following a determination that Barrow had standing, an administrative law

judge (ALJ) conducted an evidentiary hearing on the merits.4 Thereafter, the ALJ

issued a final decision affirming the EPD’s issuance of the permit based on her

interpretation of the antidegradation rule. Barrow petitioned for judicial review,

maintaining before the superior court that the EPD had issued the permit without

compliance with the antidegradation rule. The superior court affirmed the ALJ’s

decision, concluding that issuance of the permit was lawful.

In this discretionary appeal, Barrow contends that the superior court erred in

affirming the ALJ’s decision.5 In related claims of error, Barrow argues that the

relevant part of the antidegradation rule is unambiguous; that the ALJ’s and the

superior court’s interpretation of that rule contradicted the rule’s plain language; and

4
See Ga. Comp. R. & Regs. 616-1-2-.21 (1) (providing that the ALJ “shall
make an independent determination on the basis of the competent evidence presented
at the hearing”).
5
The City, as intervenor, has also filed an appellate brief, siding with the EPD.

3
that the EPD’s cited guidelines provided no authority to avoid the clear mandates of

that rule.

“[T]his Court conducts a de novo review of claimed errors of law in the

superior court’s appellate review of an ALJ’s decision. Furthermore, the

interpretation of a statute or regulation is a question of law and, thus, is also reviewed

de novo on appeal.” (Punctuation and footnotes omitted.) Upper Chattahoochee

Riverkeeper v. Forsyth County, 318 Ga. App. 499, 502 (734 SE2d 242) (2012). With

these guiding principles in mind, we review first the statutory scheme and rule at

issue here.

Pursuant to the Federal Clean Water Act, the individual states are permitted to

enact and administer their own water-quality programs, subject to certain federal

minimum standards. See 33 USC § 1313; see also Upper Chattahoochee Riverkeeper,

318 Ga. App. at 502 (1). Toward that end, the Georgia Water Quality Control Act

(Act), OCGA § 12-5-20 et seq., has as a central purpose the prevention of

unnecessary degradation of current water quality. Hughey v. Gwinnett County, 278

Ga. 740, 742 (3) (609 SE2d 324) (2004) (interpreting OCGA § 12-5-21 (a), which

declares the policy on the State’s water resources).

Particularly pertinent here, OCGA § 12-5-30 (b) of the Act sets out:

4
 Any person desiring to erect or modify facilities or commence or alter
an operation of any type which will result in the discharge of
pollutants[6] from a nonpoint source[7] into the waters of the state, which
will render or is likely to render such waters harmful to the public
health, safety, or welfare, or harmful or substantially less useful for
domestic, municipal, industrial, agricultural, recreational, or other lawful
uses, or for animals, birds, or aquatic life, shall obtain a permit from the
director to make such discharge. . . . The director may, after public
notice and opportunity for public hearing, issue a permit which
authorizes the person to make such discharge upon condition that such
discharge meets or will meet, pursuant to any schedule of compliance
included in such permit, all water quality standards, effluent limitations,
and all other requirements established pursuant to this article.[8]

6
Under the Act, “‘[p]ollutant’ means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt, industrial wastes, municipal waste, and agricultural waste discharged into
the waters of the state.” OCGA § 12-5-22 (9). See also OCGA § 12-5-22 (10) - (13).
7
The Act defines “nonpoint source” as “any source which discharges pollutants
into the waters of the state other than a point source.” OCGA § 12-5-22 (5). The Act
further defines “point source” as “any discernible, confined, or discrete conveyance,
including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or may be discharged.” OCGA § 12-5-
22 (8). The ALJ found, and the parties agree, that the LAS is a “nonpoint source” of
discharge.
8
(Emphasis supplied.) In its brief, the EPD concedes, “In the case of an LAS,
Georgia does require a permit which by its terms would be protective of the waters

5
(Emphasis supplied.)

Georgia’s Board of Natural Resources is the agency responsible for

promulgating rules and regulations governing the issuance of permits for constructing

and operating facilities that discharge pollutants into Georgia’s waters. See OCGA

§ 12-5-23 (a) (1) (C), (J).9 And pursuant to that responsibility, the Board has

promulgated a rule pertaining to the antidegradation of water-quality standards. Ga.

Comp. R. & Regs. r. 391-3-6-.03. See Upper Chattahoochee, 318 Ga. App. at 503 (1).

The specific question presented to the ALJ that remains contested at this

juncture is whether the EPD’s issuance of the City’s permit was in violation of

Georgia’s antidegradation rule. In relevant part, that rule provides:

Where the quality of the waters exceed[s] levels necessary to support
propagation of fish, shellfish, and wildlife and recreation in and on the
water, that quality shall be maintained and protected unless the division
finds, after full satisfaction of the intergovernmental coordination and
public participation provisions of the division’s continuing planning
process, that allowing lower water quality is necessary to accommodate
important economic or social development in the area in which the
waters are located. In allowing such degradation or lower water quality,

of the state.”
9
See generally, e.g., OCGA §§ 12-5-29 (a), (b); 12-5-30.

6
 the division shall assure water quality adequate to protect existing uses
fully. Further, the division shall assure that there shall be achieved the
highest statutory and regulatory requirements for all new and existing
point sources and all cost-effective and reasonable best management
practices for nonpoint source control.

(Emphasis supplied.) Ga. Comp. R. & Regs. 391-3-6-.03 (2) (b) (ii).10 See Ga. Comp.

R. & Regs. 391-3-9-.01 (2) (e) (defining “division” as “the Division of Environmental

Protection of the Department of Natural Resources, State of Georgia”).

Barrow argued below that, under the plain language of the antidegradation rule,

a permit that allows the lowering of water quality requires that the EPD first find that

such degrading of the water is “necessary to accommodate important economic or

social development in the area in which the waters are located.” Ga. Comp. R. &

Regs. 391-3-6-.03 (2) (b) (ii). Barrow complained that the EPD failed to conduct the

requisite antidegradation analysis in issuing the permit to the City, and consequently

failed to make such mandatory finding.

In defending the issuance of the permit, the EPD and the City reminded the

ALJ of principles such as:

10
The parties do not dispute that the quality of the waters at issue here exceeds
levels necessary to support propagation of fish, shellfish, and wildlife and recreation
in and on the water.

7
 When an administrative agency decision is the subject of judicial
review, judicial deference is to be afforded the agency’s interpretation
of statutes it is charged with enforcing or administering and the agency’s
interpretation of rules and regulations it has enacted to fulfill the
function given it by the legislative branch.

Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 159 (2) (664 SE2d 223)

(2008). Additionally, they relied upon the EPD’s Antidegradation Analysis

Guidelines (the “Guidelines”). In particular, the EPD pointed out, while the

Guidelines specified that the antidegradation analysis is triggered when a new or

expanded point source discharge could degrade water quality, the Guidelines did not

specify that an antidegradation analysis process is required for nonpoint source

discharges (such as the LAS). Rather, the EPD and the City emphasized that the

EPD’s Guidelines expressly provided that “[a]n antidegradation analysis is not

required for . . . Land Application Systems (LAS).” (Emphasis supplied.)

In upholding the permit, the ALJ interpreted the antidegradation rule as not

requiring the EPD to undertake an antidegradation analysis for “nonpoint source”

discharges such as the LAS. Such interpretation, the ALJ expressly reasoned, was

consistent with explicit language cited in the EPD’s Guidelines. In thus adopting the

EPD’s and the City’s position, the ALJ quoted Bentley v. Chastain, 242 Ga. 348 (249

8
SE2d 38) (1978), for the proposition that “agencies provide a high level of expertise

and an opportunity for specialization unavailable in the judicial or legislative

branches.” Id. at 350-351 (1).

We agree, however, with Barrow that the ALJ and the superior court erred as

a matter of law in interpreting the antidegradation rule in such manner. The proper

interpretation of the antidegradation rule, which adheres to its plain language, is that

before a permit can be issued that allows lower water quality, the EPD must find that

degradation of the water quality is necessary to accommodate important economic or

social development in the relevant area. See Ga. Comp. R. & Regs. 391-3-6-.03 (2)

(b) (ii). Notably, the antidegradation rule does not limit its application to point source

discharges. And the Supreme Court of Georgia has already held that, pursuant to

Georgia’s antidegradation rule, a permit that will degrade the high quality of water

cannot be granted unless the applicant meets substantive requirements, one of which

is that the degradation be justifiable as “provid[ing] necessary social or economic

development.” (Punctuation and footnote omitted.) Hughey v. Gwinnett County, 278

Ga. 740, 742 (3) (609 SE2d 324) (2004).11

11
As detailed in Upper Chattahoochee, 318 Ga. App. at 506 (3), a portion of
the antidegradation rule was revised since Hughey was decided. That revision,
however, is not implicated in this case.

9
 Nothing in the cited EPD’s internal Guidelines authorizes a conclusion contrary

to the antidegradation rule’s plain words or to Hughey’s holding. “[I]n construing

administrative rules, the ultimate criterion is the administrative interpretation, which

becomes of controlling weight unless it is plainly erroneous or inconsistent with the

rule.” (Citation and punctuation omitted; emphasis supplied.) The Atlanta Journal &

The Atlanta Constitution v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988); see

Pruitt Corp., 284 Ga. at 159-160 (2) (explaining that it is erroneous for a superior

court to give full “deference due a statute, rule or regulation to a term in a

departmental manual, the terms of which ha[ve] not undergone the scrutiny afforded

a statute during the legislative process or the adoption process through which all rules

and regulations must pass”). Given the foregoing, the ALJ erroneously interpreted the

antidegradation rule as inapplicable for the mere reason that the LAS was a nonpoint

source of discharge.

Seeking affirmance of their favorable ruling(s) nonetheless, the EPD and the

City posit that no antidegradation analysis was required in this case for an alternative

reason. They cite evidence that, as planned, wastewater collected in the City’s sewer

10
system and brought to the facility would first undergo a series of treatments,12 next

be sprayed upon designated fields at the Site, and finally percolate down through soil

to allow cleansing by the natural process of absorption before ultimately seeping into

the groundwater. Given such processes, the EPD and the City seemingly claim that

the planned LAS facility will not discharge pollutants into the waters of the State in

a harmful manner and thus OCGA § 12-5-30 (b)’s requirement that the discharge

comply with “all water quality standards” is never triggered. And accordingly, the

antidegradation rule never comes into play.

However, the ALJ did not affirm the permit on that alternative, evidentiary

premise. Because the EPD’s and the City’s alternative argument was not ruled upon

by the ALJ, it is not considered in this appeal. See generally Ga. Bd. of Dentistry v.

12
Regarding such treatments, the ALJ found in her final decision (which
findings the parties do not dispute):
Upon arrival [at the Site’s facility], the wastewater [from the City’s
sewer system] will first pass through screens that will remove solids.
Next, it will move to aeration ponds, where bacteria will break down the
organic waste. This treated wastewater . . . will then be transferred to
storage ponds and eventually applied to fields at the Guyton site using
spray irrigation.

11
Pence, 223 Ga. App. 603, 607 (5) (478 SE2d 437) (1996) (reiterating agency review

as a prerequisite to judicial review).

For the reasons explained above, the ALJ’s interpretation of the

antidegradation rule amounted to plain error; the superior court’s judgment affirming

the ALJ’s decision is thus reversed. This case is remanded for proceedings not

inconsistent with this opinion.

Judgment reversed and case remanded. McMillian and Mercier, JJ., concur.

12