DeKalb County’s consent decree: New issues raised as motion to dismiss looms in federal court
By David Pendered
As DeKalb County aims to squash in July a federal lawsuit that challenges the county’s efforts to stop polluting waterways, the environmental group that filed the lawsuit is making a new claim regarding sewage spills.
The South River Watershed Alliance contends that, since 2014, significant volumes of sewage have been spilled in areas not covered by the 2010 federal consent decree that mandates sewerage improvements. The alliance contends:
- Half of 1,000-plus sewage spills have occurred outside the purview of the consent decree;
- An estimated 32 million gallons of raw sewage has spilled from areas outside the consent decree.
DeKalb County officials have previously maintained that the county has made the sewerage repairs a priority project and is proceeding in good faith efforts to complete the improvements.
The consent decree was signed by DeKalb County, Georgia’s Environmental Protection Division, and the federal Environmental Protection Division. The decree intends to resolve the county’s long-standing violations of state and federal water quality laws in an action brought forward by EPD and EPA. Atlanta now is fulfilling terms of a similar consent decree related to its antiquated sewer system.
According to the watershed alliance, the spills it has cited reinforce its contention that the lawsuit is needed to compel the county to eliminate sewage spills throughout the county, and not just in selected “priority areas” identified in the consent decree, according to a May 3 statement released by the alliance.
Priority areas cover about 838 miles of some 2,600 miles of sewerage. The rest of the sewer pipe is beyond the scope of the consent decree because it is portions of the county designated as “non priority areas,” according to the statement:
- “What is clear at this point is that the non priority area is not covered under the consent decree and SRWA’s Clean Water Act citizen lawsuit provides the only opportunity to ensure that sanitary sewage spills in this expansive area of DeKalb County are addressed and eliminated,” Jackie Echols, president of the alliance’s board, said in the statement.
DeKalb officials said last Summer, when the alliance notified of its intent to file a lawsuit, that the county is complying fully with the “letter and spirit” of the consent decree.
In a recent federal court filing, DeKalb County has submitted a motion that contends the judge should dismiss the alliance’s lawsuit.
The county’s motion to dismiss, filed March 9, is accompanied by a detailed memo that cites a total of five reasons supporting its claim the judge should drop the lawsuit. Among the reasons: The federal and state prosecution of the county bars the alliance from bringing a lawsuit; and the watershed alliance doesn’t have the legal standing to file a lawsuit.
“Therefore,” the motion to dismiss concludes, “there is no subject matter jurisdiction for SRWA’s claims, and SRWA fails to state a claim on which relief can be granted.”
The alliance put the non-priority areas front and center in its response to the county’s motion to dismiss:
- “The Consent Decree had no deadline for repairing the sewer system in Non-Priority Areas, which account for more than two-thirds of the sewer pipes and the majority of sewage spills. …
- “DeKalb could have entered into a Consent Decree which required compliance with CWA [Clean Water Act] effluent standards and limitations. Instead, DeKalb negotiated the terms of a settlement which didn’t impose any deadline for assessing and rehabilitating more than two-thirds of the sewer system and which didn’t impose any express deadline to stop sewage spills. This agreement does not provide a shield from SRWA’s Clean Water Act citizen suit.”
DeKalb is now represented by a team led by Todd Silliman, head of the Environment and Natural Resources Practice in the Atlanta office of Dentons US. During the consent decree negotiations, the Atlanta office of Troutman Sanders represented the county.
The South River Watershed Alliance is represented by Atlanta environmental lawyer Jonathan Schwartz.
U.S. District Court Judge Steven Grimberg, in Atlanta, has set a July 14 hearing to hear the two sides make their arguments.
Part of the new issue raised by the watershed alliance involves a provision in the consent decree that indicates it doesn’t cover the entire county.
The original consent decree included a map of “priority areas” that were to be the focus of the county’s efforts. Echols contends the general public was under the impression that all the sewer leaks were to be repaired:
- “I am certain residents of the County assumed that the consent decree covered the entire county. Why doesn’t it? Why would the EPA and GA EPD agree to a consent action that only addresses sewage spills in one-third of the county? These are questions that should be asked and answered.”
Echols has been working on environmental issues in the region since 2000 and addressed some of her concerns about the South River in a guest column that appeared in 2019 in SaportaReport.com.