A middle Georgia public utility has spent years fighting a new state permit that would impose more limits on pollution flowing from the sewer system into a popular stretch of the Chattahoochee River known for its fishing and whitewater rafting.
The Columbus Water Works has cited the cost to comply with the new water quality requirements as at least part of the reason for its long-standing objections to a state permit that has been in limbo for years. Its previous permit expired in 2015.
But challenging the permit has a cost, too. A public records request, produced with the assistance of a new law clinic, revealed that the utility is spending significant amounts of public funds to challenge water quality requirements.
The public utility has hired outside legal help over the years to push back on the permit, and last summer, it enlisted a high-powered Atlanta law firm, King & Spalding, in its fight with the state agency.
Over the course of a year and a half, from last May through mid-October, the Columbus Water Works paid the firm about $411,000 to represent them in the latest chapter of its years-long negotiations with the state agency. That tally does not include legal bills paid before King & Spalding was hired or for payments made since October.
But the utility’s legal maneuvers and threat of a legal challenge did not stop state regulators from signing off last month on a permit with the tougher water quality regulations. The utility appealed the agency’s decision last week.
Vic Burchfield, a senior vice president with the utility, said in a statement it could cost more than $10 million to pay for the projects needed to comply with the new permit requirements, and he’s wary this would likely just be beginning. The changes baked into the permit, he said, could lead to “even tighter requirements” when the permit is up for renewal in five years.
“We have a responsibility to manage our customers’ costs,” he said. “The legal expenses are far less than the additional financial burden these unnecessary requirements would cause our customers to pay in the form of higher rates.”
The utility’s water board recently approved a rate increase for the spring that is unrelated to the permit, he said.
The Columbus Water Works initially rejected requests from the Georgia Recorder for billing statements from King & Spalding, citing attorney-client privilege and attorney work product doctrine and the potential that spikes in payments could reveal information about the utility’s legal strategy.
But with pressure from the First Amendment Clinic housed within the University of Georgia School of Law, the utility agreed to provide an aggregate dollar amount. The clinic opened its doors this year with the mission of defending and advancing freedoms under the First Amendment, and as part of that, its staff and student workers provide legal assistance at no charge to journalists pursuing thorny public record requests.
“These issues are of significant public interest to people in the community whose water and environment is being affected and whose taxes fund CWW’s activities,” wrote clinic fellow Samantha C. Hamilton in a letter to the utility and its lawyers.
A costly legal fight or a costlier fix?
The Columbus system is one of a handful of older sewer systems in Georgia built to collect rainwater runoff and sewage in the same pipe.
The stormwater that makes the winding path from home rain gutters to city drains and the sewage coming from homes and businesses end up together on the way to treatment facilities.
But the wastewater doesn’t always make it there, which is by design. Heavy rains can overwhelm these systems and their capacity to handle the wastewater, occasionally allowing untreated wastewater to overflow into the state’s waterways.
The potential for untreated domestic sewage ending up in the mix that flows into the Chattahoochee River – the centerpiece of Columbus’ prized waterfront and home to a popular whitewater course – is what drove the state to press for tougher water regulations. That includes a new limit on the amount of fecal coliform bacteria that can be released into the river.
“What we’re talking about here is the potential to discharge untreated domestic sewage into the river,” Jac Capp, chief of the state’s Watershed Protection Branch, told the Department of Natural Resources board of trustees this fall. “So, we do believe that there’s reasonable potential to violate the water quality standards for bacteria when that is happening.”
Fecal coliform contamination in waterways is one of the major pollution problems from combined sewer overflows, said Dr. John H. Koon, an environmental engineering professor at Georgia Tech, speaking generally about the pitfalls of combined sewer systems.
“Fecal coliforms are pretty much an indicator organism,” Koon said. “They’re easy to test for – there are effective tests for them – and if they’re present, that indicates the likelihood that there will be some pathogenic organisms present also.”
The permitting required under the Clean Water Act is meant as a safeguard designed to limit the pollution entering the nation’s rivers and lakes that provide drinking water and areas to fish, swim and boat.
But the Columbus Water works has railed against what is called an end-of-pipe limit for fecal coliform because system officials argue the state is demanding more than is required under federal law and more than is needed to keep the river clean.
There are other new requirements that have triggered protest from the utility: a limit imposed on chlorine, which is used to treat the wastewater released into the river, and new monitoring requirements at the smaller discharge points from the system into the river.
The utility argues that the state is changing its rules for the system after signing off on plans for a $100 million control facilities for its combined sewer system in the 1990s, and it questions why the state has not imposed a fecal coliform limit in earlier permits.
The utility says that the cost to upgrade its system to comply with the permit “could easily run into the tens of millions of dollars,” according to a petition filed last week appealing EPD’s decision.
“Columbus’ ability to comply with the new permit limit will thus be determined by factors outside its control: the frequency and intensity of rainfall and the bacterial load waiting to be flushed when storms occur,” King & Spalding attorney Lewis B. Jones wrote in the document requesting a hearing.
‘Very aggressive and expensive delay tactics’
The Georgia Water Coalition, a group of environmental advocacy groups, flagged the city’s sewer overflows in this year’s Dirty Dozen report highlighting the top environmental concerns in the state. Stormwater has overwhelmed the city’s system and polluted the river at least 36 times this year through October, according to the report.
Burchfield with the utility said the Georgia Water Coalition’s report “inaccurately portrays” the system’s operations. And He said any discharges from the system are mostly stormwater and, therefore, diluted.
Currently, the utility tests the water quality upstream from where the system’s water flows into the river and again a few miles downstream of the system’s last discharge point. Burchfield said the utility is also sampling the river three times a week behind the Columbus Convention and Trade Center.
Kevin Jeselnik, general counsel for the Chattahoochee Riverkeeper, which is a member of the coalition, says his group has documented troubling levels of fecal coliform entering the river during the downpours that overwhelm the system. He said it’s less clear, though, what the overall impact is on the river’s water quality.
“They’re getting five miles of river flow, assimilation and dilution of whatever they’re putting into the river, and at their last discharge point, they’re sending chlorinated water into the river and they have been for years,” Jeselnik said.
“So, they’re getting to kind of bleach out some of their inputs into the river and then let the river flow – where other creeks are flowing in and rainwater and other things are flowing in downstream of Columbus – and then five miles later, they do some sampling and say everything is fine,” he added. “We don’t think that’s adequate.”
Jeselnik said the permit’s new instream monitoring requirements are also an important improvement because it helps paddlers, whitewater rafters and people fishing better understand their risk when out enjoying the water.
The Chattahoochee Riverkeeper backs the permit as is. The environmental advocacy group also argues that the tougher water regulations have long been sought and will bring the utility in line with others.
Jeselnik said the utility has recycled similar arguments over the years challenging the permit.
“It seems to be just very aggressive and expensive delay tactics to put off something that we think the agency absolutely has the discretion to do, which is modernizing and strengthen the permit by adding increased monitoring instream and an additional end-of-pipe limits on the actual combined sewer discharges into the river,” he said.