305 Ga. 799 FINAL COPY
S18G0944. CITY OF GUYTON v. BARROW. S18G0945. DUNN v. BARROW.
PETERSON, Justice.
At the core of the judicial power is the authority and
responsibility to interpret legal text. We have many tools that aid us
in this task. When we find the text of a statute ambiguous, nearly a
century of Georgia case law instructs us to defer to the
interpretation of the state agency charged with administering the
statute. More recently, we decided that agency interpretations of
their own regulations should be afforded the same deference. Some
have argued that this doctrine is in tension with our role as the
principal interpreter of Georgia law, and we granted certiorari here
on that question. But any such tension could exist only in cases
where we have exhausted all of our interpretive tools without
determining a text’s meaning. This is not one of those cases. At issue in this case is whether the Environmental Protection
Division of the Georgia Department of Natural Resources (“EPD”)
properly issued a permit to the City of Guyton to build and operate
a land application system (“LAS”) that would apply treated
wastewater to a tract of land through spray irrigation. Craig Barrow
III challenged the issuance of that permit, arguing that, among
other things, EPD issued the permit in violation of a water quality
standard, Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii) (the
“antidegradation rule”), because it failed to determine whether any
resulting degradation of water quality in the State waters
surrounding the proposed LAS was necessary to accommodate
important economic or social development in the area. An
administrative law judge (“ALJ”) rejected Barrow’s argument,
finding that the rule required an antidegradation analysis only for
point source discharges of pollutants and the LAS at issue was a
nonpoint source discharge. The superior court affirmed the
administrative ruling. The Court of Appeals reversed, concluding
that the plain language of the antidegradation rule required EPD to perform the antidegradation analysis for nonpoint source
discharges, and that EPD’s internal guidelines to the contrary did
not warrant deference. See Barrow v. Dunn, 344 Ga. App. 747 (812
SE2d 63) (2018).
We granted certiorari in this case to consider what level of
deference courts should afford EPD’s interpretation of the
antidegradation rule, and whether that regulation requires an
antidegradation analysis for nonpoint source discharges. We
conclude that the Court of Appeals was correct that the
antidegradation rule is unambiguous, and, therefore, we do not
answer the first question, which matters only when a regulation is
ambiguous. But the Court of Appeals erred in its interpretation of
the regulation. The text and legal context of the regulation show that
an antidegradation analysis is required only for point sources, not
nonpoint sources. Therefore, we reverse.
1. An overview of the City’s LAS permit.
In 2011, the City applied for a permit for the LAS as part of a
plan to construct a municipal wastewater treatment facility on a tract of land in Effingham County. Under the City’s proposal,
wastewater that has been treated to remove solids and break down
organic waste would be applied by spray irrigation to a portion of
that tract of land, which would be covered with vegetation in order
to absorb the treated wastewater. EPD issued a permit to the City
in 2013, authorizing the City to build and operate the LAS. The
permit placed a number of restrictions on the operation of the LAS:
a prohibition on irrigation if conditions would permit runoff and
discharge outside the sprayfield; establishment of buffer zones
between the sprayfield and wetlands; a requirement that the
groundwater leaving the boundaries of the facility must not exceed
the maximum contaminant levels for drinking water; and a
maximum application rate of 0.25 inches per hour and 1.61 inches
per week, which was more restrictive than the general ceiling of 2.5
inches per week for a typical LAS. The permit also required the City
to conduct a watershed assessment to determine baseline water
quality, develop a watershed protection plan, and issue periodic reports outlining stream data and verifying that the watershed
protection plan was being implemented.
Barrow owns land across the road from the tract of land that
contains the City’s proposed LAS. He challenged the issuance of the
City’s permit, alleging that the City’s operations would harm
aquatic species in the wetlands on his property. Barrow specifically
challenged the issuance of the permit on the basis that EPD failed
to conduct an antidegradation analysis prior to issuing the permit.
After several hearings, the ALJ concluded that the permit was
lawful and that the City’s LAS did not require an antidegradation
analysis because it was a nonpoint source discharge.1 Barrow sought
review before the superior court, which affirmed the ALJ’s ruling.
Barrow appealed to the Court of Appeals, which reversed on
the basis that EPD was required to conduct an antidegradation
analysis before issuing the LAS permit. In reaching this conclusion,
the Court of Appeals noted that it was undisputed that the LAS was
1 The ALJ rejected Barrow’s other challenges to the permit, but those
issues are not before us. a nonpoint source discharge and that nonpoint source discharges
require a permit, and determined that the plain language of the
antidegradation rule requires EPD to conduct an antidegradation
analysis before issuing any permit that allows for the lowering of
water quality. Barrow, 344 Ga. App. at 749-753. The Court of
Appeals also rejected EPD’s interpretation of the antidegradation
rule — that it — applied only to point source discharges — because
the agency’s interpretation was inconsistent with the plain language
of the rule. Id. at 752-753.
We granted the City’s and EPD’s petitions for certiorari,
directing the parties to address questions of deference to agency
interpretations and whether the Court of Appeals erred in
concluding that an antidegradation analysis was required for the
City’s LAS. We first explain why we need not resolve the question of
whether we should defer to EPD’s interpretation of the
antidegradation rule, before turning to the meaning of the rule
itself. After reviewing the text of the rule within its applicable legal
context, we conclude that the antidegradation rule did not require EPD to perform an antidegradation analysis before issuing the
permit to the City, and therefore reverse the Court of Appeals.
2. It is unnecessary to decide the question of judicial deference in this case.
More than 30 years ago in The Atlanta Journal &The Atlanta
Constitution v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988),
we imported to Georgia the United States Supreme Court’s
jurisprudence on judicial deference to agency interpretations of
regulations that has become known as Auer or Seminole Rock
deference. See Auer v. Robbins, 519 U. S. 452, 461 (117 SCt 905, 137
LE2d 79) (1997) (agency’s interpretation of its own regulation is
“controlling unless plainly erroneous or inconsistent with the
regulation” (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S.
410, 414 (65 SCt 1215, 89 LE 1700) (1945) (punctuation omitted))).
In recent years, the validity of Auer/Seminole Rock deference has
been strongly criticized. See, e.g., Decker v. Northwest
Environmental Defense Center, 568 U. S. 597, 615-616 (133 SCt
1326, 185 LE2d 447) (2013) (Roberts, C.J., joined by Alito, J., concurring) (“The bar is now aware that there is some interest in
reconsidering [Seminole Rock and Auer]. . . . I would await a case in
which the issue is properly raised and argued.”); id. at 616-621
(Scalia, J., concurring in part and dissenting in part) (“For decades,
and for no good reason, we have been giving agencies the authority
to say what their rules mean, under the harmless-sounding banner
of . . . Seminole Rock or Auer deference.”); Talk America, Inc. v.
Michigan Bell Tel. Co., 564 U. S. 50, 67-69 (131 SCt 2254, 180 LE2d
96) (2011) (Scalia, J., concurring) (noting inclination to reconsider
Auer in a case where properly raised). The United States Supreme
Court has now granted certiorari to revisit its Auer/Seminole Rock
precedent. See Kisor v. Wilkie, No. 18-15.2
Our statement in Atlanta Journal that an agency’s
interpretation is “controlling”3 unless “it is plainly erroneous or
2 The State of Georgia has joined an amicus brief in Kisor that supports
overruling Auer and Seminole Rock.
3 This type of deference is stronger than so-called Skidmore deference,
where an agency’s interpretation is “entitled to respect to the extent it has the power to persuade the reviewing court.” See Cook v. Glover, 295 Ga. 495, 502 (761 SE2d 267) (2014) (Nahmias, J., concurring) (citations and punctuation omitted). inconsistent” with the regulation seemingly requires us to follow an
agency interpretation so long as it is reasonable. See 257 Ga. at 792
(2). Although our statement in Atlanta Journal placed no qualifiers
on judicial deference to agency interpretations, it is clear that we are
to defer to an agency’s interpretation only when we are unable to
determine the meaning of the legal text at issue. See Christensen v.
Harris County, 529 U. S. 576, 588 (120 SCt 1655, 146 LE2d 621)
(2000) (“Auer deference is warranted only when the language of the
regulation is ambiguous.”). Our case law predating Atlanta Journal
made that clear. Prior to Atlanta Journal, our long-held rule in
interpreting statutes was that courts were to defer to an agency’s
construction only in cases where the meaning of a statute was
ambiguous. See, e.g., Suttles v. Northwestern Mut. Life Ins. Co., 193
Ga. 495, 515 (4) (19 SE2d 396) (1942) (a “[reasonable] administrative
interpretation and practice, continued for a long period, should be
accepted as controlling . . . only when the law is ambiguous and
susceptible of different interpretations”); Elder v. Home Building &
Loan Assn., 188 Ga. 113, 116 (2) (3 SE2d 75) (1939) (“[W]here the invalidity of a statute is doubtful, [an agency’s interpretation] has
much weight with the court in determining its validity[.]”);
Standard Oil Co. of Kentucky v. State Revenue Commission, 179 Ga.
371, 376 (176 SE 1) (1934) (“The rulings of departmental and
executive officers are at best persuasive, and may be of great force
in cases of doubt[, and] . . . should be restricted to cases in which the
meaning of the statute is really doubtful[.]” (citation and
punctuation omitted)).4 This long-held rule has survived Atlanta
Journal. See, e.g., New Cingular Wireless PCS, LLC v. Ga. Dept. of
Revenue, 303 Ga. 468, 471-473 (2) (813 SE2d 388) (2018) (applying
rule in construing regulation); Tibbles v. Teachers Retirement Sys.
of Ga., 297 Ga. 557, 558-559 (1) (775 SE2d 527) (2015) (applying rule
in construction of statute).
4 This approach is similar to the Chevron deference applicable to federal
statutes. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-845 (104 SCt 2778, 81 LE2d 694) (1984) (a reviewing court must defer to an agency’s interpretation of ambiguous statute so long as it is reasonable); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 559 (1) n.2 (775 SE2d 527) (2015) (noting that our approach closely resembles Chevron). We may conclude that an ambiguity exists, however, only after
we have exhausted all tools of construction. See New Cingular
Wireless, 303 Ga. at 471-472 (2) (using rules of statutory
construction to construe regulation before concluding that, if any
ambiguity existed, the agency’s interpretation was unreasonable);
see also Epic Systems Corp. v. Lewis, ___ U. S. ___, ___ (138 SCt
1612, 200 LE2d 889) (2018) (“[D]eference is not due unless a court,
employing traditional tools of statutory construction, is left with an
unresolved ambiguity.” (citation and punctuation omitted)). A
significant criticism of Auer/Seminole Rock deference is that courts,
faced with the task of interpreting difficult agency regulations, are
often too eager to sidestep the obligation of discerning what the law
is. See Pereira v. Sessions, ___ U. S. ___, ___ (138 SCt 2105, 201 LE2d
433) (2018) (Kennedy, J., concurring) (finding troubling lower courts’
“cursory” application of rules of construction in interpreting
immigration statute and their “reflexive deference” to agency
interpretations); Perez v. Mortgage Bankers Assn., ___ U. S. ___, ___
(135 SCt 1199, 191 LE2d 186) (2015) (Thomas, J., concurring in the judgment) (“[T]he Judiciary has a responsibility to decide cases
properly before it, even those it would gladly avoid . . . . But we have
not consistently exercised the judicial check with respect to
administrative agencies.” (citations and punctuation omitted)). A
statute or regulation is not ambiguous merely because interpreting
it is hard. See Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 706
(111 SCt 2524, 115 LE2d 604) (1991) (Scalia, J., dissenting)
(“Chevron is a recognition that the ambiguities in statutes are to be
resolved by the agencies charged with implementing them, not a
declaration that, when statutory construction becomes difficult, we
will throw up our hands and let regulatory agencies do it for us.”).
After using all tools of construction, there are few statutes or
regulations that are truly ambiguous. And here, although the
meaning of the applicable regulation is not obvious on its face, this
does not mean the regulation is ambiguous. We explain below why
the antidegradation rule is unambiguous given the legal context
from which the rule developed. Because the rule is not ambiguous, we do not reach the question of whether deference is appropriate in
the case of true ambiguity.
3. Georgia’s antidegradation rule does not require an antidegradation analysis for nonpoint sources.
At the center of the dispute in this case is EPD’s
antidegradation rule, which, at the time EPD issued a permit to the
City, provided:
Where the quality of the waters exceeds 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 [EPD] finds, after full satisfaction of the intergovernmental coordination and public participation provisions of [EPD’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, [EPD] shall assure water quality adequate to protect existing uses fully. Further, [EPD] 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. Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii) (2011).5 The parties
agree that the rule is unambiguous, but offer diametrically opposite
interpretations of its meaning. EPD argues that the rule’s context
informs its meaning and shows that an antidegradation analysis is
not required for nonpoint sources. Barrow, on the other hand, argues
that the unambiguous text of the rule refers to both point and
nonpoint sources, and that, therefore, an antidegradation analysis
was required for the City’s LAS.
At first blush, one might read Georgia’s antidegradation rule
to require an antidegradation analysis for both point and nonpoint
sources, as it discusses both sources of discharge. See Ga. Comp. R.
& Regs. r. 391-3-6-.03 (2) (b) (ii). But a closer inspection of the rule,
and an understanding of the legal context in which the rule was
created, shows that it applies only to point sources.
5 In its brief, EPD notes that an additional provision was added to the
antidegradation rule in 2018 as part of the Board of Natural Resources’ triennial review of water quality standards. We do not consider this additional language because it was not effective at the time EPD issued the permit in this case. In any case, this provision sheds no light on whether an antidegradation analysis is required for nonpoint sources. As we have said many times before when interpreting legal
text, “we do not read words in isolation, but rather in context.” Smith
v. Ellis, 291 Ga. 566, 573 (3) (a) (731 SE2d 731) (2012). The primary
determinant of a text’s meaning is its context, which includes the
structure and history of the text and the broader context in which
that text was enacted, including statutory and decisional law that
forms the legal background of the written text. See Undisclosed LLC
v. State, 302 Ga. 418, 420 (2) (a) (807 SE2d 393) (2017); Olevik v.
State, 302 Ga. 228, 235-236 (2) (c) (i) (806 SE2d 505) (2017); Deal v.
Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013). This
principle, and other rules of statutory construction, apply to all
positive legal rules, including agency regulations. See Ga. Dept. of
Community Health v. Northside Hosp., 295 Ga. 446, 450 (761 SE2d
74) (2014) (applying rules of statutory construction to conclude that
“the final sentence of [a regulation] cannot be read in isolation from
the other language contained in it” (citation omitted)); see also
Undisclosed, 302 Ga. at 428 (2) (b) (explaining that “[w]e interpret
court rules in the same manner we interpret other written instruments,” which includes the context in which the written
instrument was enacted). Thus, “[e]ven if words are apparently
plain in meaning, they must not be read in isolation and instead,
must be read in the context of the regulation as a whole.” Elliott v.
State, 305 Ga. 179, 187 (II) (B) (824 SE2d 265) (2019) (quoting Upper
Chattahoochee Riverkeeper, Inc. v. Forsyth County, 318 Ga. App.
499, 502 (1) (734 SE2d 242) (2012) (punctuation omitted)); see also
Brown v. Gardner, 513 U. S. 115, 118 (115 SCt 552, 130 LE2d 462)
(1994) (“Ambiguity is a creature not of definitional possibilities but
of statutory context[.]”).
(a) The legal context of EPD’s antidegradation rule.
The antidegradation rule at issue is part of a comprehensive
regulatory framework, both federal and state, to limit the discharge
of pollutants into the waters of the United States and Georgia. The
primary governing authority in this context is the federal Clean
Water Act (“CWA”) (33 USC § 1251 et seq.). See South Fla. Water
Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U. S. 95, 102 (124
SCt 1537, 158 LE2d 264) (2004). The CWA protects water quality through two measures. First, the CWA authorizes the federal
Environmental Protection Agency (“EPA”) to establish “effluent
limitations” to restrict the quantity, rate, and concentration of
specified substances from point sources. See Arkansas v. Oklahoma,
503 U. S. 91, 101 (112 SCt 1046, 117 LE2d 239) (1992) (citing 33
USC §§ 1311, 1314). Second, the CWA also requires states to
establish “water quality standards” for all waters within their
boundaries. See id. (citing 33 USC § 1313); Pronsolino v. Nastri, 291
F3d 1123, 1127 (9th Cir. 2002).
The CWA enforces these effluent limitations and water quality
standards by making it unlawful to discharge any pollutant through
a point source without a permit issued under the National Pollutant
Discharge Elimination System (“NPDES”). Arkansas, 503 U. S. at
101-102. Georgia, as do most states, administers the NPDES
program within its borders subject to EPA oversight of the permit-
issuing procedures. See OCGA § 12-5-23 (a) (5) (A), (c) (15); see also
Sierra Club v. Meiburg, 296 F3d 1021, 1024 (11th Cir. 2002); Altamaha Riverkeeper, Inc. v. Rayonier Performance Fibers, LLC,
346 Ga. App. 269, 270 (816 SE2d 125) (2018).
By its very terms, the CWA regulates only the discharge from
a point source, which is defined as “any discernible, confined and
discrete conveyance,” such as a pipe, ditch, channel, or tunnel.
Meiburg, 296 F3d at 1024-1025; Id. (citing 33 USC § 1362 (12), (14));
Simsbury-Avon Preservation Society, LLC v. Metacon Gun Club,
Inc., 575 F3d 199, 219 (2d Cir. 2009). The CWA does not regulate
nonpoint source pollution of water bodies caused by “diffuse land use
activities . . . enter[ing] the waters primarily through indiscrete and
less identifiable natural processes such as runoffs, precipitation and
percolation.” Simsbury-Avon Preservation Society, 575 F3d at 219-
220 (citation and punctuation omitted); see also Kentucky
Waterways Alliance v. Kentucky Utilities Co., 905 F3d 925, 933 (6th
Cir. 2018); Defenders of Wildlife v. U. S. Environmental Protection
Agency, 415 F3d 1121, 1124-1125 (10th Cir. 2005); Meiburg, 296 F3d
at 1024. The regulation of nonpoint sources is left to the states. See
Simsbury-Avon Preservation Society, 575 F3d at 219-220. Although nonpoint sources are not regulated by the CWA, and
thus the NPDES program does not apply to nonpoint sources, such
sources are accounted for through the establishment of water
quality standards. See, e.g., Simsbury-Avon Preservation Society,
575 F3d at 219; Meiburg, 296 F3d at 1025; Pronsolino, 291 F3d at
1127. In establishing water quality standards, the CWA requires
states to designate a use for each water body, specify water quality
criteria that support a particular designated use, and, pursuant to a
1987 amendment, develop an antidegradation policy to protect
existing uses and high quality waters. See PUD No. 1 of Jefferson
County v. Washington Dept. of Ecology, 511 U. S. 700, 704-705 (114
SCt 1900, 128 LE2d 716) (1994) (citing 33 USC § 1313 (c) (2) (A), (d)
(4) (B)); see also Natural Resources Defense Council v. U. S.
Environmental Protection Agency, 16 F3d 1395, 1400 (4th Cir. 1993);
40 CFR § 131.12 (“The State shall develop and adopt a statewide
antidegradation policy.”). Because a water quality standard must be
maintained, pollution caused by nonpoint source discharges that
affects the water quality might require more stringent limitations upon point source discharges than would otherwise be required
under the NPDES program. See Meiburg, 296 F3d at 1025; see also
Miccosukee Tribe, 541 U. S. at 107; Arkansas, 503 U. S. at 101.
Under the authority provided by Georgia’s Water Quality
Control Act (“GWQCA”), the Board of Natural Resources and EPD
implement Georgia’s obligations under the CWA, including
administering the NPDES program for point sources and
establishing the State’s water quality standards. See, e.g., OCGA §§
12-2-24; 12-5-23 (a) (1) (C) & (R); 12-5-23 (c) (1) & (15). Pursuant to
CWA requirements, the Board of Natural Resources promulgated a
regulation covering both water quality standards and an
antidegradation policy. Ga. Comp. R. & Regs. r. 391-3-6-.03 (titled
“Water Use Classifications and Water Quality Standards”); see also
OCGA § 12-5-23 (a) (1) (C) (authorizing board to establish
regulations governing water quality standards). That regulation
includes the antidegradation rule at issue in this case, which is
identical in all material respects to the EPA’s minimum
antidegradation policy. Compare 40 CFR § 131.12 (a) (2) (providing minimum antidegradation policy with which a state’s policy must be
consistent) with Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii).
In addition to ensuring compliance with the CWA, the GWQCA
fills the CWA’s regulatory gap for nonpoint sources by requiring
permits for certain nonpoint source discharges. Specifically, the
GWQCA provides:
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 from a nonpoint source 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. Any person desiring to erect, modify, alter, or commence operation of a facility which will result in such discharge but which is not discharging such pollutants as of July 1, 1974, must obtain such permit prior to the discharge of same. The director, under the conditions he prescribes, may require the submission of such plans, specifications, and other information as he deems relevant in connection with the issuance of such permits. 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.
OCGA § 12-5-30 (b).
Pursuant to this statutory requirement, the Board of Natural
Resources has issued permitting regulations governing nonpoint
sources, including for LASs like the City’s proposed facility in this
case. See, e.g., Ga. Comp. R. & Regs. rr. 391-3-6-.11 (land disposal
systems) and 391-3-6-.19 (land application systems).6 For land
disposal and land application systems, EPD regulations require,
among other things, that pollutants be treated if they would be
harmful to humans or to animal or plant life if present in state
6 The terms “land disposal system” and “land application system” are
identically defined as “any method of disposing pollutants in which the pollutants are applied to the surface or beneath the surface of a parcel of land and which results in pollutants percolating, infiltrating, or being absorbed into the soil and then into the waters of the State.” Ga. Comp. R. & Regs. rr. 391-3- 6-.11 (2) (b) (land disposal system) and 391-3-6-.19 (2) (a) (land application system). A “land disposal system” applies to pollutants generally and a “land application system” applies specifically to wastes. Ga. Comp. R. & Regs., rr. 391-3-6-.11 (1) and 391-3-6-.19 (1). Moreover, a “land disposal system” excludes landfills but includes “ponds, basins, or lagoons used for disposal of wastes or wastewaters, where evaporation and/or percolation of the wastes or wastewaters are used or intended to be used to prevent point discharge of pollutants into waters of the State,” and such systems will require an NPDES permit (rather than a land disposal permit) when the system will employ a technique resulting in “one or more point source discharges into surface waters of the State.” Id., r. 391-3-6-.11 (2) (b), (3). waters, allow EPD to establish the degree of treatment required and
the hydraulic loading rate for each proposed system, and specify that
the groundwater leaving the boundaries of the disposal or
application system must not exceed maximum contaminant levels
for drinking water in accordance with other regulations. See id. rr.
391-3-6-.11 (4) and 391-3-6-.19 (4) (a) (1).
(b) This legal context shows that Georgia’s antidegradation rule does not require an antidegradation analysis for nonpoint sources.
The Court of Appeals construed the rule to require an
antidegradation analysis for nonpoint source discharges because (1)
EPD must issue a permit for such discharges under OCGA § 12-5-
30 (b), (2) the antidegradation rule mentions nonpoint sources, and
(3) the rule does not specifically exclude nonpoint sources from the
antidegradation-analysis requirement. In construing the
antidegradation rule, the Court of Appeals failed to consider
adequately the legal framework surrounding the rule. Georgia’s
antidegradation rule does not require an antidegradation analysis
for nonpoint source discharges. Because Georgia’s antidegradation rule mirrors the minimum
rule set forth by the EPA under 40 CFR § 131.12 (a) (2), the federal
CWA is the legal context from which Georgia’s antidegradation rule
came and guides our interpretation of our own regulation. See, e.g.,
Abrams v. Laughlin, 304 Ga. 34, 36 (2) (816 SE2d 26) (2018) (“[I]n
construing a Georgia statute that closely tracks federal statutory
law, we may look to federal court decisions and commentary
interpreting the federal statute as persuasive authority.”); Superior
Pine Products Co. v. Williams, 214 Ga. 485, 491 (106 SE2d 6) (1958)
(where the text of a federal statute was copied into a state statute,
federal law construing that text “might be strongly persuasive”).
As explained above, in 1987, the CWA was amended to require
states to promulgate an antidegradation policy as part of the
development of water quality standards. For many years prior to the
1987 amendment, the CWA was interpreted to apply only to point
sources. See, e.g., United States v. Earth Sciences, Inc., 599 F2d 368,
373 (10th Cir. 1979) (concluding that certain activities may involve
both point and nonpoint source discharge of pollutants, but only “those from point sources are subject to regulation”); Appalachian
Power Co. v. Train, 545 F2d 1351, 1373 (4th Cir. 1976) (“Congress
consciously distinguished between point source and nonpoint source
discharges, giving EPA authority under the [Clean Water] Act to
regulate only the former.”). And the water quality standards
developed by the states, of which the antidegradation rule is part,
have continuously been interpreted as being intertwined with the
NPDES permitting program applicable only to point sources. See
Miccosukee Tribe, 541 U. S. at 107 (water quality standards “directly
affect local NPDES permits”); American Paper Institute, Inc. v. U. S.
Environmental Protection Agency, 890 F2d 869, 877 (7th Cir. 1989)
(“[T]he antidegradation regulation . . . do[es] not limit the
permissible amount of discharge but establish[es] criteria for
increasing the amount that a point source may emit.”).
The 1987 amendment to the CWA cannot be read as requiring
states to conduct an antidegradation analysis for nonpoint sources.
The EPA’s minimum rule, virtually unchanged since 1987, does
refer to nonpoint sources, requiring states, in developing water quality standards, to “assure that there shall be achieved . . . all cost-
effective and reasonable best management practices for nonpoint
source control.” 40 CFR § 131.12 (a) (2). This requirement that states
achieve “best management practices for nonpoint source control”
does not require, either expressly or implicitly, states to conduct an
antidegradation analysis for nonpoint sources. Such a requirement
would exceed the EPA’s authority; the EPA cannot force states to
regulate conduct through indirect means when it cannot do so
directly. See, e.g., American Wildlands v. Browner, 260 F3d 1192,
1198 (10th Cir. 2001) (“[T]he Act nowhere gives the EPA the
authority to regulate nonpoint source discharges[.]”); Appalachian
Power Co., 545 F2d at 1373 (EPA has the authority to regulate only
point sources).
Georgia’s passage of the antidegradation rule merely satisfies
its requirement under the CWA to develop water quality standards
applicable to point sources. Nothing in the text of the rule suggests
a broader application to include nonpoint sources. Georgia’s
antidegradation rule carries out the EPA’s antidegradation mandate by requiring “best management practices” for nonpoint
source control. See Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii).
Ensuring best management practices is hardly textual support
requiring states to conduct a rigid and thorough antidegradation
analysis for nonpoint sources.
And although the CWA does not bar states from regulating
nonpoint sources, nothing about our regulatory scheme in this area
supports a reading that an antidegradation analysis is required for
nonpoint sources. Georgia has enacted a statute requiring a permit
for nonpoint sources, but this statute does not require an
antidegradation analysis as a prerequisite of a permit. See OCGA §
12-5-30 (b). And the regulations applicable to LASs — the source of
the discharge here — do not refer to the antidegradation rule found
in Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii) or otherwise require
an antidegradation analysis. See Ga. Comp. R. & Regs. r. 391-3-6-
.19. In short, nothing about the text or legal background of the
antidegradation rule or legal framework of the permitting scheme for a LAS shows that the antidegradation analysis requirement
applies to nonpoint sources.
Barrow points to no authority showing that other jurisdictions
have interpreted the antidegradation analysis requirement to apply
to nonpoint sources. To the contrary, the weight of authority shows
that issues relating to antidegradation analysis arise only in the
context of point source (NPDES) permits. See, e.g., Upper
Chattahoochee Riverkeeper, 318 Ga. App. at 503 (1) (“The specific
issue for determination by the ALJ in the case [at hand] was
whether the NPDES permit granted to Forsyth County’s [water
reclamation facilities] violated the Georgia water quality anti-
degradation rule.”); Pickard v. Tenn. Water Quality Control Bd., 424
SW3d 511, 514 n.1, 519-525 (Tenn. 2013) (concluding that a party
challenging the issuance of NPDES permit on basis of
antidegradation policy must first exhaust administrative remedies);
City of Gary v. Ind. Dept. of Environmental Mgmt., 967 NE2d 1053
(Ind. Ct. App. 2012) (evaluating whether state agency reasonably
interpreted antidegradation requirement in issuing NPDES permit for a new wastewater treatment plant); Native Village of Point Hope
v. U.S. Environmental Protection Agency, No. 3:11-CV-00200-TMB,
2012 WL 12898808, at *11 n.88 (D. Alaska Sept. 14, 2012) (“The
1987 Water Quality Act Amendments to the Clean Water Act (CWA)
explicitly incorporated reference to antidegradation policies in
section 303 (d) (4) (B), which requires that such
antidegradation requirements be satisfied prior to modifying
certain NPDES permits to include less stringent effluent limitations
(this concept is referred to as antibacksliding).”); People to Save
Sheyenne River, Inc. v. N.D. Dept. of Health, 744 NW2d 748, 753-755
(N.D. 2008) (evaluating challenge to agency’s decision to modify
NPDES permit on basis that agency failed to conduct
antidegradation review); Ill. Environmental Protection Agency v. Ill.
Pollution Control Bd., 896 NE2d 479, 487-492 (Ill. App. Ct. 2008)
(affirming agency’s antidegradation assessment for NPDES permit);
Save the Lake v. Schregardus, 752 NE2d 295, 298, 300-301 (Ohio
App. Ct. 2001) (determining whether the state agency erred in
applying the state’s antidegradation rule to NPDES permit application); Ex parte Fowl River Protective Assn., Inc., 572 So2d 446
(Ala. 1990) (reversing agency’s interpretation of state’s
antidegradation policy when it issued NPDES permit); Matter of
Issuance of a Permit by Dept. of Environmental Protection to Ciba-
Geigy Corp., 576 A2d 784, 790-792 (N. J. 1990) (concluding that
agency failed to make antidegradation findings necessary to issue
NPDES renewal permit); Blue Mountain Preservation Assn., Inc. v.
Dept. of Environmental Protection, No. 1783 C.D. 2011, 2012 WL
8692599 (Pa. Comm. Ct. Apr. 25, 2012) (reviewing whether
administrative board correctly determined that NPDES permit
complied with antidegradation regulations). Barrow has identified
no equivalent case law applying similar rules to nonpoint sources,
and we have found none.
We conclude that the applicable regulations, when considered
against the relevant legal background, do not require EPD to
conduct an antidegradation analysis before issuing a permit for
nonpoint sources, including LASs. The Court of Appeals erred in concluding otherwise, and we therefore reverse the Court of
Appeals.
Judgment reversed. All the Justices concur, except Warren, J.,
disqualified.
Decided May 20, 2019.
Certiorari to the Court of Appeals of Georgia — 344 Ga. App.
747.
Ray C. Smith, for City of Guyton.
Christopher M. Carr, Attorney General, Isaac Byrd, Deputy
Attorney General, John E. Hennelly, James D. Coots, Suzanne S.
Osborne, Senior Assistant Attorneys General, Margaret K. Eckrote,
Jameson B. Bilsborrow, Assistant Attorneys General, Andrew A.
Pinson, Solicitor-General, Ross W. Bergethon, Deputy Solicitor-
General, for Richard E. Dunn.
Jonathan L. Schwartz, for Craig Barrow.