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Official Opinion 2013-3

Official Opinion 2013-3

July 10, 2013
To: 

Director

GSFIC, Construction Division

Re: 

The state, its departments, agencies, and authorities, including the Georgia State Financing and Investment Commission and its construction projects,[1] are not required to seek and obtain permits for post-development stormwater handling or to enter stormwater facility maintenance agreements; neither the issuance of land-disturbance permits nor connection to the local storm sewer may be conditioned on the state’s compliance with local post-development stormwater requirements.  Local governments may require payment by the state of a tap or impact fee as a condition of connecting the local storm sewer.

This responds to your request for an official opinion regarding several questions related to whether local governments have the authority to require the Georgia State Financing and Investment Commission (“GSFIC”) to comply with post-development stormwater obligations contained in local ordinances, to enter stormwater facility maintenance agreements, or to pay stormwater impact fees.[1]  Specifically you ask:

  1. Can a local government in the State of Georgia require GSFIC or its contractors to seek and obtain permits from that local government for post-development stormwater handling or treatment?

 

  1. If a local government can require GSFIC or its contractors to obtain permits for post-development stormwater handling or treatment, can the local government also require GSFIC to enter into a Stormwater Facility Maintenance Agreement?

 

  1. Can a local government condition the issuance of a Land Disturbance Permit or other permits on compliance with its post-development stormwater regulations?

 

  1. Can a local government require payment of an impact fee (or tap fee) or compliance with its post-development stormwater regulations before allowing a GSFIC construction project to connect to its local storm sewer?

 

The answers to all of these questions depend on whether the General Assembly has granted local governments the authority to impose such obligations on the State of Georgia, its departments, agencies, and authorities, including GSFIC (collectively, “the State”).  As a rule, the State is “not bound by the passage of a law unless it is named therein or unless the words of the law are so plain, clear, and unmistakable as to leave no doubt as to the intention of the General Assembly.” O.C.G.A. § 1‑3‑8.  Thus, a general power granted to a local government does not apply to the State or its instrumentalities in the absence of express language[2] or “without the use of words which, by necessary implication, would bring [the State] within” the terms of the statute.  City of Atlanta v. Smith, 99 Ga. 462, 466‑67 (1896) (emphasis added); see also 1971 Op. Att’y Gen 71‑113.  It follows that the projects and public property of the State are not subject to local regulation, or to local permit requirements, absent express or implicit statutory language to the contrary.[3]

The State, however, is subject to the National Pollutant Discharge Elimination System (“NPDES”) program, which requires anyone, including the State, discharging pollutants into waters of the United States to obtain an NPDES permit.[4]  Stormwater discharge associated with construction activity is a pollutant subject to NPDES requirements; thus NPDES permits are required for State construction projects.[5]  The Environmental Protection Agency (“EPA”) delegated the implementation and enforcement of the NPDES program in Georgia to the Georgia Environmental Protection Division (“EPD”).[6]  Pursuant to that delegation, EPD issued the state general permit for stormwater runoff from construction activities.[7]  To provide for appropriate resources for the implementation of the NPDES program and to assure compliance with the requirements of the state general permit, the Georgia General Assembly enacted the Erosion and Sedimentation Act of 1975, O.C.G.A. §§ 12‑7‑1 through ‑22 (“Erosion and Sedimentation Act”).[8]  The Erosion and Sedimentation Act authorizes EPD to certify qualifying local governments as local issuing authorities.[9]  In turn, local issuing authorities are also authorized to issue land-disturbing permits that mandate compliance with the minimum requirements of the NPDES program.[10]  Local issuing authorities are authorized to enact stricter stream buffer standards than those contained in the NPDES minimum requirements as well as to integrate the NPDES minimum requirements “with other local ordinances relating to land development including but not limited to tree protection, flood plain protection, stream buffers, or storm-water management.”[11]  The Erosion and Sedimentation Act does not include express or implicit language empowering local issuing authorities to impose these additional local requirements on State projects.[12]  Accordingly, although many local governments have expanded the obligations imposed by their land-disturbance permits, the State is required to comply only with the NPDES minimum requirements.  While the State is subject to the land disturbance permitting requirement as mandated by the NPDES program, it is not subject to additional local requirements, including any requirement for post-construction stormwater management, that the local government has incorporated into its land disturbance permits.  The Erosion and Sedimentation Act does not mandate a post-development regulatory framework and it cannot serve as a basis for local governments to assert regulatory authority over the State in a post-development capacity.

There is, however, another aspect of the federal NPDES program that more directly involves local governments and post-development stormwater management.  Municipalities and counties operating municipal separate storm sewer systems (or “MS4s”) are required to obtain an MS4 permit.[13] As a condition of the MS4 permit, the local government must implement a stormwater management program designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable in order to protect water quality.[14] Certain local governments may include the requirement for post-development stormwater handling and treatment in their land disturbance permits in order to implement their obligations under their MS4 permit.  However, while the MS4 permit anticipates local governments utilizing facility maintenance agreements as an implementation tool, it does so only in the context of an agreement between the local government and the owner or operator of a privately-owned structure.[15]  The MS4 permit makes clear that local government ordinances or other regulatory mechanisms may address post-construction runoff only to the extent allowable under state and local law,[16] and state law, specifically the Georgia Water Quality Control Act, does not confer local government control over the State.  Accordingly, since neither the State nor the federal law regarding post-construction stormwater runoff applies to the State, the MS4 permit cannot give local governments the authority to regulate the State with regard to post-construction stormwater handling or treatment.[17]

Local issuing authorities may argue that they are not imposing local ordinances on the State but are instead requiring the State to assume by a contract the obligations contained in their local ordinances.  By entering into such an agreement, however, GSFIC would be providing the local issuing authorities with a contractual right to enforce obligations where no governmental regulatory right exists.  “‘What can not be done by an ordinance can not be done by a contract.’”  City of Jonesboro v. Clayton County Water Auth., 136 Ga. App. 768, 773 (1975) (quoting Screws v. City of Atlanta, 189 Ga. 839, 843 (1940)).  Thus, local governments may not by contract or as a condition for connecting to the local storm sewer require the State to comply with local ordinances that do not otherwise apply to the State.

Local governments, however, are authorized to charge the State for stormwater management services pursuant to the home rule section of the Georgia Constitution and general statutory law.  McLeod v. Columbia County, 278 Ga. 242, 243 (2004).  So long as such charges are “fees” and not “taxes,” local governments are authorized to require payment of such charges by the State as a condition of connecting to the local storm sewer.[18]  A tax is defined as “‘an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered.’”  Gunby v. Yates, 214 Ga. 17, 19 (1958), quoted in McLeod, 278 Ga. at 244.  Relying on McLeod, the Georgia Supreme Court recently upheld a local government’s stormwater management charges as a permissible “fee” and not an unconstitutional tax.  Unified Gov't of Athens-Clarke County v. Homewood Vill., 292 Ga. 514 (2013).[19]

Therefore, it is my official opinion that the State is not required to seek and obtain permits for post-development stormwater handling and that a local government, even if certified as a local issuing authority, may not condition the issuance of a land disturbance permit to the State, or its contractors, on compliance with any requirements, including local post-development stormwater regulations, other than the requirements set forth in O.C.G.A. § 12‑7‑6(b) and the state general permit.  Further, a local government may not require the State to enter into a stormwater facility maintenance agreement, either as a condition for issuance of a permit or for connecting to the local storm sewer.  A local government may, however, require payment of a local stormwater management fee from the State before allowing a State construction project to connect to the local sewer system.




[1] A previous opinion of this Office concludes that the “state and its departments, agencies, and authorities, including the Georgia Department of Transportation and its construction projects, are not subject to the “post-development stormwater runoff” regulations or other ordinances adopted by a local government, local authority, or regional authority, including the model ordinance promulgated by the Metropolitan North Georgia Water Planning District.  See 2009 Op. Att’y Gen. 2009-6.

[2] 1958‑59 Op. Att’y Gen. 5 (1959).

[3] Bd. of Tr’s of the Gate City Guard v. City of Atlanta, 113 Ga. 883 (1901); Mayor of Atlanta v. Cent. R.R. & Banking Co., 53 Ga. 120, 123 (1874); 1958-59 Op. Att’y Gen. 219.  The State and its departments, agencies, and authorities are not generally subject to local permits or licenses, see 1996 Op. Att’y Gen. 96-4; 1972 Op. Att’y Gen. 72-9 (contractors not required to obtain building permits for State construction projects), or local environmental regulations, see 1996 Op. Att’y Gen. 96-4 (ordinance requiring the reporting of certain releases of hazardous materials did not apply to State entities).

[4] The NPDES Program was established by the federal Clean Water Act and federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 through 1357; 40 CFR 122.1(b) (2012). 

[5] NPDES permits are required by 40 CFR § 122.26(a)(9)(i)(B) (2012)for “storm water associated with small construction activity,” which is defined as “[c]onstruction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre and less than five acres.” 40 CFR § 122.26(a)(15) (2012).  NPDES permits are also required by 40 CFR § 122.26(a)(1)(ii) (2012)for storm water discharge associated with “[c]onstruction activity including clearing, grading and excavation,” that results in land disturbance of five acres or more. 40 CFR § 122.26(a)(14)(x) (2012).

[6] See Hughey v. JMS Dev. Corp., 78 F.3d 1523 (11th Cir. 1996).  “On June 28, 1974, the State of Georgia was authorized by EPA to administer an NPDES program within its borders.  The Georgia agency responsible for administration of that program is the Environmental Protection Division ("EPD") of the Georgia Department of Natural Resources.  EPA-issued NPDES permits are thus not available in Georgia.”  Id at 1525.

[7] The state general permit is defined as “the National Pollution Discharge Elimination System general permit or permits for storm-water runoff from construction activities … pursuant to the state’s authority to implement the same through federal delegation under the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq., and subsection (f) of Code Section 12‑5‑30.”  O.C.G.A. § 12‑7‑3(15).

[8] Explicit references in the definitions of “operator” and “person” contained in the Erosion and Sedimentation Act make it applicable to the State. “Operator” is defined as the party or parties having “[d]ay-to-day operational control of those activities that are necessary to ensure compliance with a storm-water pollution prevention plan for the site or other permit conditions, such as a person authorized to direct workers at a site to carry out activities required by the storm-water pollution prevention plan or to comply with other permit conditions.” O.C.G.A. § 12‑7‑3(10.1)(B) (emphasis added).  “Person” is defined as any “public or private corporation, . . . public or private institution, utility, cooperative, state agency, municipality or other political subdivision of this state, any interstate body, or any other legal entity.” O.C.G.A. § 12‑7‑3(11).

[9] In order for a local government to be certified as a “local issuing authority,” it must enact ordinances “which meet or exceed the standards, requirements, and provisions of [the Erosion and Sedimentation Act] and the state general permit . . . which are enforceable by [the] county or municipality.” O.C.G.A. § 12‑7‑8(a)(1). It also must employ “qualified personnel to implement enacted ordinances.” Id.

[10] The minimum requirements consist of the best management practices listed at O.C.G.A. § 12‑7‑6(b)(1) through (16) and the conditions contained in the state general permit.

[11] O.C.G.A. § 12‑7‑4(a).

[12] O.C.G.A. § 12‑7‑6(c).

[13] 40 CFR § 122.26(a) (2012); Ga. Comp. R. & Regs. r. 391‑3‑6-16 (2001).

[14] General NPDES Stormwater Permit No. GAG610000, Part 4.  All references to provisions of the MS4 permit refer to this specific permit for Small MS4s.  EPD has also promulgated general permits for medium and large MS4s which contain substantially similar conditions.  Each MS4 permit further requires that the stormwater management program contain, at a minimum, information on six minimum control measures described in 40 CFR. § 122.34(b) (2012).

[15] MS4 permit, Part 4.2.5(a).4.b.1.

[16] MS4 permit, Part 4.2.5.

[17] “[L]ocal governments, having no inherent power to regulate the state, . . . would be acting ultra vires in attempting to regulate and enforce such regulation against the state.” 2009 Op. Att’y Gen. 2009-6.

[18] While state-owned property is exempt from property taxes under O.C.G.A. § 48‑5‑41, it is subject to fees for services. 1979 Op. Att’y Gen. 79-5.

[19] The ordinance implementing the stormwater management charge, “like the ordinance in McLeod, (1) ‘establish[es] a stormwater utility and impose[s] a utility charge for the stormwater management services’; (2) ‘applies to residential and non-residential developed property, but not to undeveloped property, which actually contributes to the absorption of stormwater runoff[,] and . . . the cost of [the stormwater] services [is] properly apportioned based primarily on horizontal impervious surface area;’ and (3) ‘the properties charged receive a special benefit from the funded stormwater services, which are designed to implement federal and state policies through the control and treatment of polluted stormwater contributed by those properties.’”  292 Ga. at 515 (quoting McLeod, 278 Ga. at 243, 245 (internal citations omitted)).  The Court further noted that property owners could “reduce the amount of the charge by creating and maintaining private stormwater management systems” rather than connecting to the local storm sewer. Id.

Prepared by:

Denise E. Whiting-Pack

Senior Assistant Attorney General

Helen Pope Taylor

Assistant Attorney General