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Appellate court hears wastewater permit case
Could take until fall to reach decision
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Forsyth County News

It could take until late fall for the Georgia Court of Appeals to issue a decision on a challenge to a Forsyth County wastewater permit.

A three-person panel of judges heard arguments Wednesday on the Chattahoochee Riverkeeper’s appeal to a county discharge permit approved in August 2010 by the Georgia Environmental Protection Division.

The permit gave the county the ability to release 6 million gallons per day of treated water from the Fowler wastewater facility, in the county’s south end, into the Chattahoochee River.

Riverkeeper appealed the permit that September, arguing the allowable pollutant levels were “unnecessarily weak.”

Judge Kristin Miller of the Office of State Administrative Hearings agreed with Riverkeeper and set revised pollutant levels for a resistance of the permit in June 2011.

However, Forsyth County appealed Miller’s decision to the Forsyth County Superior Court, where Judge Jeffrey S. Bagley reversed the ruling and ordered further review by the administrative law judge.

The appeals court agreed to hear the case at Riverkeeper’s request.

Juliet Cohen, legal counsel for the organization, said the group is glad the court agreed to hear the case.

“It’s a very important issue for the Chattahoochee River, and especially the national recreation area,” Cohen said. “The matter of the case is precedent setting.”

She said the judges asked questions about what it means to lower water quality, how the permitting system works and how the Clean Water Act applies to the state antidegradation rule.

Executive Director Sally Bethea said the rule works to keep clean the waters we have “to protect designated uses.”

“That’s what this is all about, and that’s why this is important to us,” Bethea said. “There are a number of wastewater discharges into the Chattahoochee River National Recreation Area, but because of the pristine nature of this part of the park, we were compelled to take this issue forward in court.”

Though Riverkeeper launched the suit against the EPD, Forsyth joined to defend its permit and hired law firm King & Spalding to represent it.

The attorneys for Forsyth believed the county would “prevail” based on the questions the judges asked, said Tim Perkins, county water and sewer director.

“Our attorneys felt comfortable that the reversal that we got in Superior Court … got it right and that the appeals court will see it that way,” Perkins said.

As issued, the EPD and Forsyth County felt the permit levels would not degrade the quality of the water, Perkins said, and comments from the judges hinted at the same conclusion.

“The judges were focusing on [that] these are the guys that are in charge with protecting the environment. They write the rules, they enforce the rules,” he said. “It was done correctly. Why shouldn’t we rely on their interpretation of the rules?”

The Fowler plant currently holds a seasonal permit, which allows discharge into the Chattahoochee during the colder months of the year.

As part of the discharge expansion request, the county also applied to receive a year-round permit.

While that permit is on hold, the seasonal one won’t be affected by the court’s decision.

Perkins said the delay hasn’t caused an issue yet.

“But it could, as far as growth, it could slow that down,” he said. “It’s just putting off the construction until we can get the permit.”

To defend that interest, Forsyth has so far paid a little more than $500,000 to King & Spalding in legal fees, as well as nearly $10,000 to the county’s law firm for its work on the case.