A Muskogee County Superior Court judge may strike another blow against Columbus Water against state regulators and river advocates over acceptable levels of fecal bacteria discharged into the Chattahoochee River.
On Thursday, Judge Maureen Gottfried heard arguments from attorneys representing Columbus Water Works, the Georgia Department of Environmental Protection and the Chattahoochee Riverkeeper over a permit that imposes stricter rules on water flowing into the river from the city’s sewer system Fecal coliform restriction.
An administrative law judge ruled against the utility last year, a decision Columbus Water is fighting. The Georgia EPA and the Chattahoochee River Keepers, a nonprofit environmental advocacy group that joined the case as a third party, argued that the previous ruling was correct under federal water quality standards and that the utility had no right to appeal.
Columbus Water Works argued the new restrictions were illegal, and a former judge made a legal error in her ruling. They claim that the judge did not consider expert testimony from outside witnesses. The utility wants an opportunity to present its evidence at the hearing.
In addition, the utility claims the court must independently determine whether the EPA correctly assessed the risks to the sewer system, rather than listening to the state agency. The changes could cost the city more than $10 million. Its $100 million sewer system, which brings together stormwater and sewage through a single pipe, was not designed with these proposed constraints in mind.
Gottfried can uphold or reverse state court rulings and send them back to the Office of State Administrative Hearings, an administrative court that resolves disputes between public and state agencies.
“I think if you’re strictly following the principles of fairness, at some point, I think there needs to be a full hearing,” she said at the conclusion of the proceedings on Thursday. “However, I’m not sure I can rule this legally.
“When we got to the end, what I found most concerning was that, all of a sudden, because it was a mistake, this problem was fixed, and it cost the city of Columbus and the Columbus Water Works $100 million … mistake.”
Should Columbus’ appeal be granted?
Arguments by the Georgia EPA and Chattahoochee River administrator claim that the Columbus Water Works should not be able to give evidence at the hearing because they have asked a judge to rule without evidence.
Both parties asked for a judgment last year, and by asking for a ruling, the utility actually claimed there were no “material facts in dispute,” the groups argued.
Lawyers for both parties told the court on Thursday that the arguments made in the appeal were an impermissible reversal.
“The argument that they think they’ve been deprived of a day in court simply doesn’t hold,” said Hutton Brown, an attorney representing the Chattahoochee River Guardian. “(The Columbus Water Works) did not create a (significant) question of fact sufficient to warrant a trial.”
Columbus Water Works alleges the former judge made a legal error and the utility did not waive its right to a hearing where further evidence could be provided.
Attorneys from Atlanta’s King & Spalding and Columbus companies Page, Scrantom, Sprouse, Tucker & Ford appealed on behalf of the utility. They argued that they sought the first judgment because they believed the EPA did not file a case.
The utility provided affidavits from outside experts arguing that fecal bacteria restrictions were unlawful or unnecessary, contesting the state’s claims. When the judge dismissed Columbus Water’s motion, the case should have gone to trial, said Lewis B. Jones, an attorney for King & Spalding.
“There is no doubt that we dispute the facts,” he said. “We presented the facts. The judge thought the EPA created a real controversy. … So, we should have a trial. We are entitled to a trial.”
Are fecal bacterial limits correctly determined?
The EPA and Chattahoochee Riverkeeper claim the state agency complied with the law. The groups also argue that Columbus Water Works failed to demonstrate that the EPA did not conduct a reasonable underlying analysis, a process required by the federal Clean Water Act.
The groups said the EPA followed the necessary guidelines for determining fecal bacteria limits. The agency conducted an analysis to determine whether the sewer system could experience future water quality problems. They believe the heavy rain could have dumped untreated sewage into the city’s popular whitewater canals.
The agency doesn’t need to prove current violations to impose stricter restrictions, or produce written records to prove it conducted an analysis.
The new restrictions correct mistakes the agency made in approving past licenses. The EPA said the previous permit should take into account the risks Columbus’ combined sewer system poses to the water quality of the Chattahoochee River. While the city’s past performance is considered, that’s not the only factor.
“The Clean Water Act is designed to protect bodies of water. … people fishing in the Columbus River, people kayaking on the white waterways — they don’t want the water to have to be harmed before we can put it Get back to health,” said Chris Held, assistant state attorney general representing the Georgia EPA.
Citing testimony from outside experts and 20 years of water quality data, Columbus Water Works said the permit is costly, illegal and does not require maintaining water quality standards. One of the experts claimed the state did not conduct the analysis.
The utility built a $100 million sewer system in the early 1990s and received EPA approval. The EPD successfully issued utility operating licenses in 1998 and 2010. The group says the changes now make no sense.
The system is designed to meet fecal bacteria standards by testing water in rivers rather than water flowing directly from pipes. Columbus Water Works estimates it could cost the city more than $10 million to comply with new end-of-pipe fecal bacteria limits.
Although battling the limit has also proven expensive. Columbus Water Works paid King & Spalding about $411,000 from May 2019 to mid-October 2020, according to a previous report by the nonprofit news organization Georgia Recorder.
“[The Columbus Water Works]and taxpayers shouldn’t be forced to spend millions of dollars adhering to unnecessary Band-Aids based on questionable technology decisions that were never made, never explained, and never reviewed by the courts,” Jones said. .