Key Points

  • The Georgia Court of Appeals held that Comprehensive Nutrient Optimization Plan conditions in DeKalb County's NPDES permits are best management practices, not effluent limitations, under City & County of San Francisco v. EPA.
  • Because the conditions are not effluent limitations, EPD was not required to conduct a reasonable potential analysis under 40 CFR § 122.44(d)(1)(ii).
  • The court held clearly erroneous the ALJ's finding that the practices were reasonably necessary under 40 CFR § 122.44(k)(4), because no evidence tied the Snapfinger Creek and Polebridge Creek plants' discharges to Lake Jackson's chlorophyll-a impairment.
  • Requests for exculpatory records under OCGA § 50-13-18(d)(1) and Rule 37 do not apply in permit challenges, which cannot result in revocation, suspension, or limitation of a license.
  • The court reversed and remanded to the superior court with direction to remand to the ALJ, and did not reach the county's home rule argument.

Georgia's environmental regulators failed to show that two DeKalb County wastewater plants needed state-ordered plans to cut the nutrients they release, the Georgia Court of Appeals ruled Monday. The court reversed a superior court decision affirming an administrative ruling that had upheld the plan requirements in the plants' discharge permits.

Judge Gobeil, writing for a unanimous three-judge panel, sided with the state on a threshold question. The plan requirements are "best management practices," the court held, meaning management steps that a permit holder designs for itself, rather than effluent limitations, restrictions on the quantities, rates or concentrations of pollutants discharged. But the court held that an administrative law judge was clearly wrong to find the practices "reasonably necessary" for the two plants. Presiding Judge Dillard and Judge Pipkin concurred.

The ruling turns on evidence about the particular plants, not statewide policy. The administrative law judge had found that statewide nutrient concerns of the Environmental Protection Division of the Georgia Department of Natural Resources, known as EPD, justified the conditions. An EPD witness testified that the condition goes into the permit "for every facility that discharges upstream from a lake, reservoir, or estuary and that we know has nutrients."

DeKalb County owns the Snapfinger Creek and Polebridge Creek Advanced Wastewater Treatment Facilities. Both discharge into the South River, which flows into Lake Jackson. Treated wastewater carries nitrogen and phosphorus, which feed algae; according to the opinion, algal blooms can deplete dissolved oxygen and kill aquatic life. In 2024, Lake Jackson was found in violation of its water quality criteria for chlorophyll-a, the green pigment in algae.

That finding obligated EPD to develop a TMDL, which includes waste load allocations for point sources such as the plants. That work was not complete. Meanwhile, EPD, through its director, Jeffrey W. Cown, reissued the county's permits in 2024 with new Comprehensive Nutrient Optimization Plan conditions. Within 24 months, the county "shall, at a minimum, identify and quantify sources of nutrients entering the wastewater treatment plant, evaluate potential source reductions, identify and implement operational adjustments aimed to reduce nutrients, and establish annual nutrient reduction goals." The plans must be updated, with a progress report, each year.

The county challenged the conditions. It argued they were effluent limits imposed without a reasonable potential analysis, a determination that a discharge could cause or contribute to a water quality violation. The acting director of the county's watershed management department attested that compliance would be extremely burdensome and costly. Anna Truszczynski, chief of EPD's watershed protection branch, attested that the provisions "do not actually require Dekalb to reduce its nutrient outputs."

An administrative law judge ruled in November 2024 that the conditions were best management practices and needed no reasonable potential analysis. The judge held a hearing on whether they were reasonably necessary and upheld them in May 2025. The county sought review in superior court, which heard argument in October 2025 but did not rule within the time state law allows, so the decision was affirmed by operation of law. The Court of Appeals then granted the county's application for discretionary review.

On the first question, the panel relied on the U.S. Supreme Court's 2025 decision in City & County of San Francisco v. EPA. Judge Gobeil wrote that the conditions "do not require the County to achieve a specific result, such as a numerical limit, nor do they require that the County attain a certain percentage reduction." Instead, the court held, they regulate "the means by which the County is to achieve the water-quality ends." In a footnote, the court noted that at oral argument EPD "emphatically denied that the County could be the subject of an enforcement action for failing to meet any targets or goals made under the provisions at issue."

The county won on the second question. Federal regulations allow such practices when they are "reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of" the Clean Water Act. Judge Gobeil wrote that, though that language is broad, the practices "still must be grounded in 'reasonable necessity,' which connotes some level of specificity."

The record fell short, the court held. No hearing evidence analyzed the county's nutrient contribution to Lake Jackson, and no flow modeling connected the plants' discharges to measured conditions in the lake. Nor was there specific evidence that reducing the county's nitrogen output would address chlorophyll-a in a lake that "receives input from multiple tributaries." The administrative law judge had flagged that gap before the hearing, writing that "it is unclear whether the BMPs are reasonably necessary to protect the waterways, including Lake Jackson."

"Instead, the hearing evidence showed that the CNOP provisions were developed to help with EPD goals as a stopgap measure until a more specific plan could be developed," Judge Gobeil wrote. "This amorphous plan, unmoored from evidentiary support, does not equate to the reasonable necessity required under 40 CFR § 122.44(k)(4)."

The court upheld the administrative law judge's rejection of the county's request for agency records it described as exculpatory or favorable. The state statute and agency rule the county invoked cover proceedings that could result in the "revocation, suspension, or limitation" of a license. A permit challenge cannot produce that result, the court held, because only the EPD director may revoke, suspend or modify a permit. Nor, it wrote, are there "allegations" against the County from which it can be "exculpated." The panel did not reach the county's argument that the conditions violated Georgia's constitutional home rule provisions.

The Court of Appeals reversed and sent the case back to the superior court, with direction to return it to the administrative law judge for proceedings consistent with the opinion. Under the court's rules, motions for reconsideration are due by 4:30 p.m. on the 10th day after the decision.