$100M mistake. Chattahoochee fecal bacteria limit may force Columbus sewer changes
Editor’s note: Here’s an overview of this issue and a breakdown of legal arguments made by both sides.
A Muscogee County Superior Court judge could deal another blow to the fight Columbus Water Works is putting up against state regulators and river advocates over acceptable levels of fecal bacteria discharged into the Chattahoochee River.
Judge Maureen Gottfried heard arguments from attorneys representing the Columbus Water Works, the Georgia Environmental Protection Division and the Chattahoochee Riverkeeper on Thursday over issues surrounding a permit that enforces tougher fecal coliform limits on water flowing from the city’s sewer system into the river.
An administrative law judge ruled against the utility company last year, and Columbus Water Works is fighting the decision. Georgia EPD and the Chattahoochee Riverkeeper, a nonprofit environmental advocacy group that joined the case as a third party, argued that the previous ruling was correct based on federal water quality standards and that the utility company has no right to appeal.
Columbus Water Works argued the new limits are illegal, and the previous judge committed legal errors in her ruling. The judge, they allege, failed to consider expert testimony from outside witnesses. The utility wants a chance to present its evidence at a hearing.
Further, the utility company claims the court must independently determine if EPD properly assessed the sewer system’s risk instead of taking the state agency at its word. The changes could cost the city more than $10 million. Its $100 million sewer system that funnels rainwater and sewage through a single pipe wasn’t designed with these proposed limits in mind.
Gottfried could uphold the state court’s ruling or reverse the decision and send it back to the Office of State Administrative Hearings, an administrative court that resolves disputes between the public and state agencies.
“I think if you go strictly on fairness, to a certain extent, I think a full hearing is needed,” she said at the close of proceedings Thursday. “However, I’m not sure that legally I can rule that.
“What I find most concerning when we get to the very end is the fact that all of sudden this is being addressed because it was a mistake, and the city of Columbus and Columbus Water Works spent $100 million… on something that was based on a mistake.”
Should Columbus’ appeal be granted?
Arguments from the Georgia EPD and the Chattahoochee Riverkeeper assert that Columbus Water Works shouldn’t be able to present evidence at a hearing because they’ve already asked a judge to issue a ruling without one.
Both parties asked for the judgment last year, and by asking for the ruling, the utility effectively claimed there were no “material facts in dispute,” the groups argue.
The argument put forth in the appeal is a reversal that isn’t allowed, lawyers from the two parties said in court Thursday.
“Their argument that they were denied their day in court simply doesn’t hold up,” said Hutton Brown, an attorney representing the Chattahoochee Riverkeeper. “(Columbus Water Works) did not create an issue of (material) fact sufficient to create an issue for trial.”
Columbus Water Works alleges the previous judge made legal errors, and the utility did not waive its right to a hearing where it could present further evidence.
Attorneys from Atlanta’s King & Spalding as well as Columbus firm Page, Scrantom, Sprouse, Tucker & Ford are representing the utility company in its appeal. They argued that they sought the first judgment because they felt EPD didn’t put up a case.
The utility provided affidavits from outside experts alleging the fecal bacteria limits weren’t legal or necessary, disputing claims made by the state. When the judge denied Columbus Water Work’s motion, the case should have been set for trial, said King & Spalding attorney Lewis B. Jones.
“There could be no doubt that we disputed facts,” he said. “We put up facts. The judge found that EPD created a genuine dispute. ...So, we should have had a trial. We are entitled to a trial.”
Was the fecal bacteria limit properly determined?
EPD and the Chattahoochee Riverkeeper allege that the state agency followed the law. Both groups also argue that Columbus Water Works failed to prove that EPD didn’t conduct a reasonable potential analysis, a process mandated by the federal Clean Water Act.
EPD, the groups said, followed the necessary guidelines for establishing the fecal bacteria limit. The agency conducted its analysis to determine if the sewer system could present future water quality issues. Heavy rains, they argue, could send untreated sewage into the city’s popular whitewater course.
The agency doesn’t have to demonstrate a current violation to enforce stricter limits, and it doesn’t need to produce a written record to prove it did an analysis.
The new limit corrects mistakes made by the agency when it approved past permits. Previous permits, EPD said, should have accounted for the risk Columbus’ combined sewer system poses to Chattahoochee River water quality. While the city’s past performance is considered, it isn’t the only factor.
“The Clean Water Act is designed to protect water bodies. …The folks who fish in the river in Columbus, the folks who kayak through the white water course — they don’t want the rule to be that the water must be harmed and then we claw it back to health,” said Chris Held, a state Assistant Attorney General representing Georgia EPD.
Columbus Water Works argued the permit is costly, illegal and isn’t needed to maintain water quality standards, citing testimony from outside experts and 20 years of water quality data. One of its experts claims the state didn’t conduct an analysis.
The utility constructed its $100 million sewer system in the early 1990s with EPD approval. EPD granted the utility operation permits in 1998 and 2010 with no issues. The change now, the group said, makes no sense.
The system was designed to meet fecal bacteria standards by testing water out of the river, not water coming directly out of the pipe. Columbus Water Works estimates it could cost the city more than $10 million to comply with the new end-of-pipe fecal bacteria limit.
Though fighting the limit has proven expensive as well. From May 2019 to mid-October 2020, Columbus Water Works paid King & Spalding about $411,000, according to previous reporting from the Georgia Recorder, a nonprofit news organization.
“(Columbus Water Works) and the ratepayers should not be forced to spend millions of dollars to comply with unnecessary band-aids based on questionable technical determinations that have never been produced and never been explained and that no court has ever reviewed,” Jones said.
This story was originally published April 4, 2022 at 5:00 AM.