Southern Lessons in Environmental Law

I come from the scenic Hudson Valley of New York State with a rich and inspiring history of environmental litigation in the name of conservation. It was there, at the Bard Center for Environmental Policy, that I was inspired to pursue my interest in environmental law. After completing my first year of graduate school, I was privileged to intern for an accomplished environmental attorney, Michael P. Carvalho at Carvalho & Associates, P.C., in Marietta, Georgia. Travel can be transformative, but experiences of that kind cannot be anticipated; I arrived in Marietta with an open heart.

Photo Credit: www.carvalholawfirm.com

Photo Credit: www.carvalholawfirm.com

My first impression of the large city of Marietta was less promising. Located 15 miles from Atlanta, Marietta is part of a growing metropolis. Apartment complexes, retail centers, and massive highways traverse the landscape with an occasional pocketed, suburban neighborhood or park. In my attempts to assimilate into the community, I rarely had opportunity to impress my views of urban sprawl, except to discuss the numberless, stray cats and dogs. I had to look far to recycle and to find myself in nature.

At first glance, Marietta was not a fitting location for an environmental law practice, but my four months at Carvalho & Associates taught me, otherwise. Where environmental issues are compounded with rapid development, legal opportunities are abundant with respect to property rights and environmental regulations. I discovered that, in fact, Marietta was the ideal location.

One opportunity arises from lack of enforcement of the Clean Water Act (CWA). Various amendments to the CWA have given new authority to states and local governments to address escalating water quality issues that result from increases in urban runoff. A principal measure required states to implement and enforce watershed stormwater management plans. With amendments in 1999, priority for state-run stormwater programs extended beyond municipal sewer systems to development sites, including pre- and post-construction activities and small development sites (under 5 acres). In 2003, Georgia accordingly amended the Georgia Erosion and Sedimentation Act, requiring for development sites: stormwater controls, Best Management Practices (BMPs), measures of impact (i.e. turbidity standards, land disturbance by acre), inspections, state certifications for stormwater management, and hydrologic maintenance, codified in O.C.G.A. §12-7-6(b) and specified in Georgia’s Manual for Erosion and Sedimentation Control. Counties and municipalities, as the Local Issuing Authorities (LIAs) for NPDES permits under the CWA, followed these guidelines through enactment of commensurate regulations and ordnances; this authority is delegated to counties and municipalities by the State Department of Natural Resources (DNR), Environmental Protection Division (EPD). While these steps in regulatory history ensured regional attention to matters of stormwater management, there were some unforeseen consequences.

"Sediment Control" Photo Credit: www.carvalholawfirm.com

“Sediment Control” Photo Credit: www.carvalholawfirm.com

Namely, LIAs are responsible for stormwater management and for the economic and social benefits of development. In some cases, this presents a conflict of interest for cities that must effectively approve development projects in short order as opportunities arise; there is little incentive to consider what cumulative impacts multiple projects might have on a watershed. A single event, precipitated by punctuated rainfall, has a statistical likelihood of causing protective stormwater controls to fail, which may result in damages that violate the CWA and certain property rights.

 

A significant event might result in widespread damages, such as the following:

  • permanent changes in hydrology,
  • destruction of property and infrastructure,
  • loss of wildlife and ecological damages,
  • pollution that is hazardous to human health,
  • loss of occupational and recreational value.

When such catastrophic events occur, the scale of the damage determines the response. The EPD, the United States Army Corps of Engineers (USCOE), property owners, developers, city officials, engineers, and hydrologists may be assembled to attribute liability, to remediate damages, and to provide meaningful public participation in enforcement of the CWA. Where there is disagreement about proportional liability and who should bear the costs, and often there is, environmental attorneys may be called to represent marginalized parties.

While I am not at liberty to discuss the particulars of any case, my overall impression of the enforcement process is that it suffers from a lack of coordination among affected parties. Notwithstanding, the breakdown of stormwater management occurs from the very beginning when watershed hydrology is assessed for development approval by LIAs. LIAs need to provide comprehensive studies of the watershed, to adopt management plans for sites that were constructed before regulations required erosion and sedimentation control plans (ESCPs), and to integrate stormwater controls on watershed-scale, rather than limiting them to individual sites. If these recommendations were enforced in the initial phases of development, the costs to citizens and municipalities for stormwater management would be significantly reduced, by preventing subsequent costs and inefficiencies from remediation and allocation of damages after they occur.

What I learned from this experience is that regulating nonpoint source pollution is a localized responsibility under the CWA. Citizens must set stormwater management standards for local regulators, and this can only be achieved when the public is educated about the risks of development to the environment and to human well-being. In states, like my home in New York, where environmental law has been transformed by litigious precedent, citizens were first mobilized around issues, protecting the rights of their own communities; the transformation did not occur overnight. I hope to continue to feel inspired by the collective progress towards state regulatory reform of environmental law, while these instigative instruments of the law are slowly but actively tried in Georgia, and elsewhere.


Lauren Hubbell

About Lauren Hubbell