Ex parte Fowl River Protective Ass'n, Inc.
| Citation | 572 So.2d 446 |
| Parties | Ex parte FOWL RIVER PROTECTIVE ASSOCIATION, INC., and South Alabama Seafood Association, Inc. (Re Stanley GRAVES, et al. v. FOWL RIVER PROTECTIVE ASSOCIATION, INC., et al. and FOWL RIVER PROTECTIVE ASSOCIATION, INC., et al. v. BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE). 88-561. |
| Decision Date | 25 May 1990 |
| Court | Supreme Court of Alabama |
Fowl River Protective Association, Inc. ("Fowl River"), and South Alabama Seafood Association, Inc. (we refer to both appellants as "Fowl River"), appeal from a Court of Civil Appeals judgment that favors the Alabama Environmental Management Commission ("Commission") and its chairman Stanley Graves, the Alabama Department of Environmental Management ("ADEM"), and the Board of Water and Sewer Commissioners of the City of Mobile ("Sewer Board"). Because we agree with Fowl River's arguments that the Court of Civil Appeals erred when it approved both the Commission's interpretation of Alabama's antidegradation policy and the Commission's application of the evidence contained in the record, we reverse the judgment and remand the cause. Fowl River makes additional arguments, which we do not address, because we resolve the case otherwise; by not addressing those arguments, we do not mean to imply that we necessarily agree with those rulings of the Court of Civil Appeals that we do not expressly reverse.
The Alabama Water Improvement Commission ("AWIC"), the predecessor state agency to ADEM, approved the issuance of a National Pollutant Discharge and Elimination System ("NPDES") permit to the Sewer Board. That permit allowed the Sewer Board to discharge up to 25 million gallons per day of treated industrial waste and sewage into the water approximately one and one-half miles from the western shore of Mobile Bay; the proposed location for the discharge is named Theodore Outfall. Fowl River filed an administrative appeal of the issuance of that permit, and AWIC appointed a hearing officer to conduct an administrative hearing. During the period when evidence was being presented to the hearing officer, the legislature created ADEM and the Commission, Ala.Code 1975, § 22-22A-1 et seq., which replaced AWIC. The hearing officer presented his opinion with recommendations to the Commission. The Commission adopted the hearing officer's opinion, which approved the issuance of the permit with some modifications. The modifications reduced the permit allowance for fecal coliform bacteria and reduced by 10 percent the permit allowance for total suspended solids, total phosphorous, total iron, total aluminum, and total dissolved solids.
Fowl River appealed this decision to the Circuit Court of Mobile County. That court reversed the Commission's decision and remanded the case for further study; the court found that before ADEM issued the permit it had failed to investigate properly and to account for the effects of a phenomenon called "stratification" that occurs in the water of Mobile Bay. The trial court did not find that ADEM's interpretation of the state antidegradation policy was improper, however. ADEM, the Commission, and the Sewer Board appealed, and Fowl River cross-appealed. The Court of Civil Appeals reversed the trial court's holding that remanded the case to the Commission, Graves v. Fowl River Protective Ass'n, 572 So.2d 441 (Ala.Civ.App.1988); that court held that the Commission's interpretation of Alabama's antidegradation policy was proper. Id.
In this appeal, we address two questions that Fowl River raises:
1. Whether the Court of Civil Appeals erred when it affirmed the Commission's interpretation of Alabama's antidegradation policy.
2. Whether the Court of Civil Appeals erred when it affirmed the Commission's application of the evidence contained in the record to the Sewer Board's request for the NPDES permit.
The antidegradation policy is a policy promulgated by ADEM pursuant to federal statutes and regulations. That policy is stated in ADEM Admin.Code R. 335-6-10, and, according to its own terms, serves to protect, maintain, and improve the quality of the water of the state by preventing and controlling water pollution. ADEM implements that policy by using water quality standards, which provide specific scientific and technical criteria for evaluating water cleanliness. See ADEM Admin.Code R. 335-6-10, § 6.
Water quality standards are established by the water's "water use classification"; in other words, water quality standards are determined by what the water is used for. In Alabama, the water use classifications are public water supply, swimming and other whole body water-contact sports, shellfish harvesting, fish and wildlife, agricultural and industrial water supply, industrial operations, and navigation. ADEM Admin.Code R. 335-6-11-.01. Public water supply is the "highest" water use classification, the classification with the most stringent restrictions on pollution; that is, water that is to be used by the public must be cleaner than water that might be used for shellfish harvesting, fish and wildlife, etc. ADEM Admin.Code R. 335-6-10, § 6. ADEM rates the uses and quality of the bodies of water within the state, and ADEM has not imposed on any water in Alabama a higher rating than that imposed on water classified as "public water supply." ADEM Admin.Code R. 335-6-11-.02.
The federal and state statutory and regulatory framework that creates the antidegradation policy also prescribes the responsibility for issuing NPDES permits, like the permit that is involved in this action. ADEM must comply with the antidegradation policy when it issues NPDES permits and, thus, to understand fully how the antidegradation policy applies to this case one must understand the statutes and regulations concerned with the issuance of the NPDES permits. The statutory authority to issue NPDES permits comes from the federal Clean Water Act, 33 U.S.C.A. §§ 1251, 1342 (1986). The United States Congress directed the Environmental Protection Agency ("EPA") to administer the NPDES program initially, 33 U.S.C.A. §§ 1251(d), 1342(a) (1986), and Congress gave the states the right to apply to EPA for permission to administer the NPDES program for the waters within the state. 33 U.S.C.A. § 1342(b) (1986). EPA determines whether a state is allowed to administer the NPDES program, 33 U.S.C.A. § 1342, but Congress requires that each state have sufficient enabling statutes and regulations to be able to implement and comply with the provisions of the federal statutes and regulations, 33 U.S.C.A. § 1342(b) (1986). Also, EPA has promulgated regulations that include specific provisions that are mandatory for any state that administers its own NPDES program, see e.g., 40 C.F.R. 122.4, 124.11. The national antidegradation policy, by its own terms, is such a mandatory provision and is found at 40 C.F.R. 131.12; we will discuss that provision further at a later point.
EPA authorized AWIC and now authorizes ADEM to administer the NPDES program in Alabama. ADEM agreed to comply with the requirements of the Clean Water Act and all applicable EPA regulations, and ADEM, in its brief, acknowledges that it is bound by federal statutes and EPA regulations. Accordingly, when ADEM issues an NPDES permit, it must do so in accordance with the provisions of the relevant federal statutes and those portions of the EPA regulations that are mandatorily applicable to the state's administration of its own NPDES program.
EPA promulgated the national antidegradation policy to conserve, protect, maintain, and improve the waters of the nation by preventing and controlling water pollution, 40 C.F.R. 131.12, as the state antidegradation policy also serves to do. The national antidegradation policy uses water quality standards in a manner similar to the way Alabama uses them. The Clean Water Act allowed EPA to promulgate regulations setting forth water quality standards for states exercising NPDES permitting authority. Pursuant to that statutory authority, EPA adopted water quality standards applicable to the states in 40 C.F.R., Part 131. Part of that provision is 40 C.F.R. 131.12, the national antidegradation policy, which reads:
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