Erosion and Sedimentation Act of

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Erosion and Sedimentation Act of Powered By Docstoc
					          Erosion and
      Sedimentation Act of
              1975
         Presented by
       Donald D.J. Stack
       Lisa B. Perlstein
    Stack & Associates, P.C.
800 Flatiron Building                219 West
Bryan Street
84 Peachtree Street                   Suite 303
Atlanta, GA 30303               Savannah, GA 31405
(404)525-9205           (912)352-3648
     Why Do We Need the Act?
 • The Georgia Legislature found that:

 “soil erosion and sediment deposition onto lands and into
   waters within the watersheds of this state are occurring as a
   result of
                 widespread failure
 to apply proper soil erosion and sedimentation control practices
in land clearing, soil movement, and construction activities. . . .”
        What Is the Impact?
• The Legislature has found that this
  widespread failure:

“result[s] in the pollution of state waters and
  damage to domestic, agricultural,
  recreational, fish and wildlife, and other
  resource uses.”
       IMPACT TO TROUT




An increase in fine sediments within stream
 substrates generally has a negative impact
                 on salmonids
  Impact of Sediment on Trout
• prevents oxygen from reaching eggs, trap fry in
  the substrate, and retard the removal of toxic
  compounds from redds.

• Affects diversity and population of benthic
  organisms which are a major portion of the trout’s
  diet.

• Restricts winter cover for adult fish by filling in
  low-velocity habitats such as deep pools and
  undercut banks.
                 State Policy
“It is therefore declared to be the policy of this state
   and the intent of this chapter to strengthen and
   extend the present erosion and sediment control
   activities and programs of this state and to provide
   for the establishment and implementation of a
   state-wide comprehensive soil erosion and
   sediment control program to conserve and protect
   the land, water, air, and other resources of this
   state.”
In order to conduct land disturbing activities,
                one must have a




          PERMIT
How Do I Get A Permit?
1) Apply to the Local
   Issuing Authority;

or

2) Give notice to
   EPD that I intend
   to be covered
   under the state
   General Permit.
        All permits Require:
1) The Minimum Requirements set out by
   the Act AND the State General Permit

                     +
2) The additional Requirements set out by
   Local Ordinance
    The Act Requires:
           Design

         Installation

        Maintenance

BEST MANAGEMENT PRACTICES
    Minimum
Requirements Set
 Forth in the Act
     Include:
Stripping of vegetation,
 regrading, and other
development activities
shall be conducted in a
    manner so as to
   minimize erosion
Cut and fill operations
  must be kept to a
      minimum
Development Plans must
 conform to topography
 and soil type, so as to
    create the lowest
   practicable erosion
        potential
Whenever feasible, natural
vegetation shall be retained,
protected, and supplemented
The disturbed area and the
  duration of exposure to
 erosive elements shall be
    kept to a practicable
          minimum
Disturbed soil shall be stabilized as
       quickly as practicable
 Temporary vegetation or
mulching shall be employed to
protect exposed critical areas
     during development
 Permanent vegetation and
  structural erosion control
measures must be installed as
     soon as practicable
   To the extent necessary,
 sediment in run-off water must
be trapped by the use of debris
  basins, sediment basins, silt
traps, or similar measures until
the disturbed area is stabilized.
Adequate provision must be
provided to minimize damage
from surface water to the cut
  face of excavations or the
    sloping surfaces of fills
Cuts and fills may not endanger
       adjoining property
Fills may not encroach upon
    natural water courses or
  constructed channels in a
  manner so as to adversely
 affect other property owners
 Grading equipment must cross
  flowing streams by the means
   of bridges or culverts, except
    when such methods are not
 feasible, provided, in any case,
that such crossing must be kept
           to a minimum
Land-disturbing activity plans for
    erosion and sedimentation
 control shall include provisions
  for treatment or control of any
     source of sediments and
 adequate sedimentation control
 facilities to retain sediments on
  site or preclude sedimentation
      of adjacent waters. . . .
 All state waters shall have a 25
 foot buffer on each bank;

 Trout streams with an average
 flow of more    than 25 gallons per
 minute shall have a 50 foot buffer
 on each bank;

 No land disturbing activity
 may take place       within the
 buffer. It shall remain in its
   natural, undisturbed, state of
The Act Also Requires Compliance with the
         standards set forth in the
  “Manual for Erosion and Sedimentation
            Control in Georgia”




            A/K/A the “Green Book”
        All permits Require:
 The Minimum Requirements set out by the
      Act AND the State General Permit

                     +

The additional Requirements set out by Local
                  Ordinance
The State General
     Permit
  GAR 100003
    Requires:
   Comply with all requirements of the Erosion and
    Sedimentation Act

   Submit Erosion Control Plans and a Notice of
    Intent to EPD

   Plan and engage in a Comprehensive Monitoring
    Program for stormwater turbidity

   Gather and record rainfall data

   Comply with Reporting Requirements

                          AND
   Discharge must not cause a violation of the State
        Water Quality Standards which include:

1) The “free from . . .” standards;

2) Dissolved oxygen criteria;

3) Homogenous mixture of effluent requirements;
NOI’s sINce september 30,
            2003
 Primary         Secondary
 Permittee:      Permittee:

 10,400           23,600
In areas where a Local Issuing Authority
  issues the Land Disturbing Permit, the
     Local Issuing Authority may have
          additional requirements.
               FOR EXAMPLE

Though State law requires a 50 foot buffer along
  trout streams, . . .



  FULTON COUNTY REQUIRES A
    100 FOOT BUFFER ALONG
        TROUT STREAMS
 COUNTIES WHO ARE LOCAL ISSUING
          AUTHORITIES:
Atkinson – Baldwin – Banks – Barrow – Bartow - Ben Hill – Berrien – Bibb –
Bleckley – Brooks – Bryan – Bulloch – Burke – Butts – Candler – Carroll –
Catossa – Charlton – Chatham – Cherokee – Clarke – Clay – Clayton – Clinch –
Cobb – Coffee – Columbia – Cook – Coweta – Crisp – Decatur – Dekalb – Dodge
– Dooly – Dougherty – Douglas – Effingham – Fannin – Fayette – Floyd –
Forsyth – Franklin – Fulton – Gilmer – Glascock – Glynn – Gordon – Grady –
Greene – Gwinnett – Habersham – Hall – Hancock – Haralson – Harris – Hart –
Heard – Henry – Houston – Irwin – Jackson – Jasper – Jefferson – Johnson –
Jones – Lamar – Lanier – Laurens – Lee – Liberty – Lincoln – Lowndes –
Lumpkin – Marion – McDuffie – Meriwether – Miller – Mitchell – Monroe –
Montgomery – Morgan – Murray – Muscogee – Newton – Oconee – Oglethorpe –
Paulding – Peach – Pickens – Pierce – Pike – Pulaski – Putnam – Rabun –
Richmond – Rockdale – Screven – Seminole – Spaulding – Stewart – Sumter –
Taylor – Telfair – Terell – Thomas – Tift – Toombs – Treutlen – Troup – Turner
– Union – Walker – Walton – Ware – Warren – Washington – Wayne – Webster
– White – Whifield – Wilcox – Wilkes – Wilkonson
The Discharge of water from any disturbed area
          where BMPs have not been

                 DESIGNED
                     or
               MAINTAINED
                     or
                INSTALLED

CONSTITUTES A VIOLATION OF THE ACT
EACH DAY CONSTITUTES A
    NEW VIOLATION
Getting into Court
 2 Ways in Which Erosion Issues
   End up in your Courtroom:
1) Enforcement Action

2) Civil Litigation
  ENFORECEMENT ACTION
Enforcement Action for violation of a
   permit condition is taken by the
          Issuing Authority:


               EPD
              County
               City
When a County takes enforcement Action, the matter
 is generally heard by the MAGISTRATE COURT.

Prior to a hearing, the permitee may request a jury trial
  in Superior Court, and the matter is transferred.




Subsequent to a Magistrate Court hearing, the decision
  of the Magistrate Court may be appealed to
  State/Superior Court
When EPD takes enforcement action, the matter may
 be heard in the Office of State Administrative
 Hearings by and Administrative Law Judge.

The permitee may appeal the decision of the ALJ to
 the Superior Court
     Enforcement By EPD
 July 1, 2002 through June 30,
              2003
509 inspections
137 Notices of Violation issued
1        Administrative Order
  issued
92 Consent Orders executed
Total Penalties: $223,400
    CIVIL LITIGATION
              Failure to properly
                    DESIGN
                    INSTALL
                      and/or
                   MAINTAIN
                      BMPs
will often result in tort damage to downstream
                      property.
TORTS WHICH MAY OCCUR:
           Nuisance
          Negligence
       Negligence per se
           Trespass
     Inverse condemnation
        Riparian Rights
              NUISANCE
A nuisance will be created by an up-gradient
 property owner disturbing land by:

          Increase in water volume
         Increase in water velocity
         Increase in water turbidity
          NEGLIGENCE
        NEGLIGENCE PER SE
The violation of a permit constitutes negligence and
  negligence per se.

Enforcement action is not the only evidence of
  permit violations.

Plaintiffs can establish independent evidence that
  BMPs were not properly designed, installed or
  maintained.
                 TRESPASS
The unpermitted intrusion of water and sediment
  onto a down-gradient property owner constitutes a
  trespass.



Compliance with a permit designed to discharge
  water and sediment onto a down-gradient property
  owner is NOT A VIABLE DEFENSE.
      Riparian Rights
No one may divert water running on their land
 nor so use or adulterate the water so as to
 interfere with the enjoyment of it by the
 next owner.
       Inverse Condemnation
 Where the discharging Defendant is a City, County
   or Government Agency, the discharge of water
  and sediment may rise to the level of an inverse
              condemnation or Taking.

Compliance with a permit designed to discharge
  water and sediment onto a down gradient property
  owners is NOT A VIABLE DEFENSE.
The Appellate Courts
    have said . . . .
           Sumitomo v. Deal
         256 Ga.App. 703 (2002)

Trespass and nuisance caused by increased water flow
    are NOT subject to a defense of reasonable use
       Saheen v. G & G Corp.,
         230 Ga.646 (1973)
Increased water and sediment accumulating on
   Plaintiff’s property as a result of up-gradient
  Defendant’s land disturbing activity support a
finding against Defendant for continuing trespass
              and continuing nuisance.
    Ponce de Leon Condominiums v. DiGirolamo,
                238 Ga. 188 (1977)

Creating and/or failing to abate discharges onto down
   gradient properties demonstrates the

1) “conscious indifference to the consequences”
   sufficient to sustain an award of punitive damages.

2) “bad faith” sufficient to sustain an award of
   attorneys’ fees.
             Tyler v. Lincoln
           272 Ga. 118 (2000)
                “Tyler II”
“every intentional tort invokes a species
 of bad faith the entitles a person
 wronged to recover the expenses of
 litigation including attorney fees.”

     Trespass is an intentional tort.
              Lincoln v. Tyler
          258 Ga. App. 374 (2002)
                “Tyler III”

“where there is some evidence supporting a finding of
  bad faith, an award of attorney fees on that basis
  must be affirmed. Further, . . ., the award of
  attorney fees is not apportioned to only those
  attorney fees attributable to the claims on which the
  plaintiff prevailed. In our view, a party acting in
  bad faith should pay the full price for losing.”

				
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