The Georgia Water Quality Control Act – O.C.G.A. 12-5-20 et seq.

 

 

 

The Georgia Water Quality Control Act works in conjunction with the CWA to deal with waste water discharge, site selection, and wetlands mitigation requirements.

 

Silt and Runoff

 

In Georgia, stormwater discharges associated with such construction activities are regulated by a general permit. A developer permitted under a GAR 100003 has continuing liability for any violations of the General Permit until a Notice of Termination has been submitted to EPD. GAR 100003, Part(I)(E).  (There are also GAR 100001 (standalone project) and GAR00002 (infrastructure) permits.)

The General Permit requires the submittal of a Notice of Intent (NOI) at least fourteen days prior to the commencement of construction activities. GAR 100003 Part II (A). The General Permit also specifies that best management practices (BMP’s), to prevent or reduce pollution, must be properly implemented for all construction activities. GAR 100003, Part III(C)(1)&(2). Where BMP’s have not been properly designed, installed, and maintained, it is a violation of the General Permit for each day that those BMPs are not properly designed, installed, and maintained. In addition, when BMPs are not properly designed, installed, or maintained, it is a second violation on each day that discharges increase turbidity by more than 25 nephelometric turbidity units. GAR 100003, Part III(C)(3).

In addition, the General Permit specifies that discharges shall not cause violations of water quality standards. GAR 100003, Part I(C)(4). The following are just some of the applicable state water quality standards:

  • Ga. Comp. R. & Regs. 391-3-6-.03(5)(b), which states that “[a]ll waters shall be free from …floating debris … in amounts sufficient to be unsightly or to interfere with legitimate water uses”;
  • Ga. Comp. R. & Regs. 391-3-6-.03(5)(c), which states that “[a]ll waters shall be free from material … which produce turbidity, color, odor or other objectionable conditions which interfere with legitimate water uses”;
  • Ga. Comp. R. & Regs. 391-3-6-.03(5)(d), which states that “[a]ll waters shall be free from turbidity which results in a substantial visual contrast in a water body due to man-made activity”; and
  • Ga. Comp. R. & Regs. 391-3-6-.03(2)(b) and 40 C.F.R. § 131.12(a)(1), which state that “[e]xisting in-stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.”

 

With respect to the general construction permit, state law has delegated some of the duties to “Local Issuing Authorities” or “LIAs” which are typically county entities. However, EPD and EPA always retain authority over implementation of the permit. The Army Corps of Engineers has authority over Section 404 of the Clean Water Act (dredge/fill permits).

 

Local Issuing Authorities (LIAs)

 

In order to be qualified to oversee implementation of the General Permit, the LIA must be certified and adopt an ordinance which meets basic requirements of the law by July 2004. If LIA fails to enforce or adhere to State erosion and sedimentation control laws they may be de-certified as an LIA. The LIA can issue warnings and stop work orders. In fact, under many circumstances, the LIA is required to take action. For example, the LIA is required to issue written warnings for the 1st and 2nd violations (whereby the violator has 5 days to correct the violation). If the violations are not corrected, the LIA must issue a stop work order.

 

Mandatory stop work orders are also required for actions taken without a permit, where significant amounts of sediment have been or are being discharged in to the water, where the permittee has failed to maintain a stream buffer, or where BMPs not properly maintained or designed. The LIA can also issue penalties of up to $2,500 per day. 

EPA and EPD also have authority to take action under the CWA general enforcement powers and in fact, always retain authority over its implementation. Actions can include penalties up to $27,500 per day.  Authority for implementation of Section 404 of the Clean Water Act remains with the Army Corps of Engineers.

 

Citizen Suits

 

Where the appropriate agencies have failed to act, the CWA specifically grants citizens the right to enforce all of the requirements of the General Permit and other provisions of the Clean Water Act. A citizen must provide 60-days notice of his/her intent to sue after which time it can file suit. A citizen can seek specific orders that the site comply with law or that remedial measures be taken. He/she can also obtain penalties of up to $27,500 per day and attorneys’ fees.

 

Penalties

 

·     Assessed penalties of up to $27,500 per day per violation (payable to the U.S. Treasury)

·     Ordered to comply with the terms of its permit and perform other types of “injunctive relief.” Injunctive relief is when the court orders the polluter to take certain actions such as implementing pollution control measures, replacing equipment, undergoing training, and other measures necessary to prevent further violations.

 

Required to undertake “supplemental environmental projects” or “SEP.” A supplemental project is typically a project implemented by the violator that benefits the community impacted by the illegal dischargers

 

Christopher R. Reeves, EPD, EPA, Georgia, Environmental, attorney, litigator, litigation, water, pollution, lawyer, finley, law, firm, regulations, administrative, climate change, esq, toxic, land

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