Gwinnett County v. Lake Lanier Ass'n

614 S.E.2d 114, 272 Ga. App. 849

Opinion

Bernes, Judge.

The Supreme Court granted certiorari in this case to determine whether this Court correctly held that a permit to allow Gwinnett County to discharge 40 million gallons of treated wastewater into Lake Lanier on a daily basis was properly issued.

In Division 1 of Gwinnett County v. Lake Lanier Assn., 265 Ga. App. 214 (593 SE2d 678) (2004), this Court held that the superior court erred in reversing the administrative law judge’s grant of summary judgment to the Environmental Protection Division (“EPD”). The effect of the grant of summary judgment was to allow the issuance of a final discharge permit to Gwinnett County. The Supreme Court reversed our disposition of the issue, finding that the administrative law judge’s grant of summary judgment to EPD was improper because the final discharge permit was not properly noticed to the public. Hughey v. Gwinnett County, 278 Ga. 740, 744 (4) (609 SE2d 324) (2004). Accordingly, we vacate Division 1 of our opinion, Gwinnett County v. Lake Lanier Assn., supra at 218, 221 (1), and adopt the judgment of the Supreme Court as our own.

Decided April 14, 2005. Alston & Bird, Lee A. DeHihns III, E. Peyton Nunez, Daniel N. Esrey, for Gwinnett County. Smith, Gambrell & Russell, Stephen E. O'Day, Andrew M. Thompson, Justine I. Thompson, for Lake Lanier Association and Hughey et al. Thurbert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, William R. Phillips, John E. Hennelly, Assistant Attorneys General, for Reheis. Andrew, Merritt, Reilly & Smith, Paul E. Andrew, Clyde Y. Morris, Jr., King & Spalding, Patricia T. Barmeyer, Lewis B. Jones, Mary M. Asbill, amici curiae.

The Supreme Court also reversed Division 3 (d) of our opinion. Hughey v. Gwinnett County, supra at 743 (3) (b). In Division 3 (d), we held that Georgia’s anti-degradation rules did not require the permittee to use the highest and best level of treatment practicable under existing technology. Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b). Accordingly, we vacate our ruling in Division 3 (d), Gwinnett County v. Lake Lanier Assn., supra at 224-225 (3) (d), and make the judgment of the Supreme Court the judgment of this Court. Divisions 2 and 3 (a) -(c) of our opinion were affirmed by the Supreme Court and therefore remain in effect, id. at 221-224 (2), (3) (a)-(c), as do Divisions 4, 5 and 6, which were not appealed.

Judgment reversed.

Johnson, P. J., and Mikell, J., concur.