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South River Watershed Alliance asks U.S. Court of Appeals to help halt sewer spills

By David Pendered

The South River Watershed Alliance has turned to the U.S. Court of Appeals in Atlanta in its effort to compel DeKalb County to stop spilling sewage from sewer pipes in all of DeKalb, not just a third of the county as is now the case.

The South River, seen here at Panola Shoals, transports untreated sewage that leaks from DeKalb County’s sewerage system. A federal lawsuit seeks to halt the leaks. Credit: Kelly Jordan

The alliance has appealed a September ruling by U.S. District Court Judge Steven Grimberg, who ruled that a federal court cannot intervene in a consent decree that’s been signed by the federal Environmental Protection Agency.

“The decision to appeal the judge’s ruling was made because the health and welfare of the County’s citizens and waterways and elimination of sanitary sewage spills depend on compliance with the CWA [Clean Water Act],” the alliance observed in a statement.

The alliance also has raised an equity issue: The county is repairing the sewerage system in historically white neighborhoods and not making repairs in historically Black neighborhoods, under terms of a federal consent decree signed by the county, the state and the federal Environmental Protection Agency.

An estimated 32 million gallons of untreated sewage has spilled since 2014 into waterways from leaking sewer pipes that are not being addressed under provisions of the federal consent decree. DeKalb promised in the decree to stop spilling sewage, but the alliance contends the decree is faulty because it covers just a third of the county – the historically white neighborhoods.

Jackie Echols, president of South River Watershed Alliance’s board, observed in the statement:

dekalb consent decree, priority areas

DeKalb County’s original federal consent decree, to stop polluting waterways, contained these priority areas. A federal judge has dismissed a case that contended two thirds of the raw sewage spilled in DeKalb is outside the purview of the consent decree. File/Credit: Federal consent decree, U.S. District Court in Atlanta

  • “Before the 2010 consent decree, DeKalb County polluted the South River and surrounding communities for almost 50 years under the watchful eye of GA EPD and EPA, and this unfortunate situation continues today.
  • “The Clean Water Act is the law and its protections should apply to everyone equally, Judge Grimberg’s ruling denies DeKalb County residents equal protection under the law and that’s just plain wrong.
  • “Protection for some is not equivalent to protect for all.”

The statement refers to Georgia’s Environmental Protection Division, of the state Department of Natural Resources.

The alliance filed a citizen lawsuit in 2019 under the federal Clean Water Act.

The lawsuit contended that the federal consent decree compelling the county to stop leaks in one-third of the county should have been written to cover the entire county.

Grimberg’s ruling noted that he is in “agreement with Plaintiffs’ ultimate goals….” However, he wrote, a judge is precluded from opening up the consent agreement by a 2007 ruling by a federal appellate judge in an Oklahoma case.

In deciding to appeal Grimberg’s ruling, the alliance has concluded that the Grimberg ruling cannot stand because it “eliminates the Clean Water Act’s protection from two-thirds of DeKalb County, and for all of the South River,” as Echols said following the ruling.

The alliance appealed Grimberg’s opinion and order to the U.S. 11th Circuit Court of Appeals, in Atlanta. The appeal statement filed on Oct. 11 cites two issues that are to be raised:

  • “The Clean water Act bars citizen enforcement of the Act when the U.S. Environmental Protection Agency or the State ‘has commenced and is diligently prosecuting’ an action in court ‘to require compliance’ with the same standard or limitation. =33 U.S.C. ~ 1365(b)(1)(B). Sewage spills violate a Clean Water Act effluent standard or limitation.
  • “DeKalb County’s sewer system includes a ‘Priority Areas’ and ‘Non-Priority Areas.’ The issue in this appeal is whether a 2011 Consent Decree bars a Clean Water Acti citizen suit for sewage spills in Non-Priority Areas when the Consent decree did not include anyt deadline for DeKalb County to rehabilitate the sewer system within Non-Priority Areas and did not require the County to stop sewage spills in Non-Priority Areas.”

 

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David Pendered

David Pendered, Managing Editor, is an Atlanta journalist with more than 30 years experience reporting on the region’s urban affairs, from Atlanta City Hall to the state Capitol. Since 2008, he has written for print and digital publications, and advised on media and governmental affairs. Previously, he spent more than 26 years with The Atlanta Journal-Constitution and won awards for his coverage of schools and urban development. David graduated from North Carolina State University and was a Western Knight Center Fellow.

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