Hoebel, William S.

English

University of Denver

Water Law Review Volume 9 Issue 2 Article 57 1-1-2006 City of Rincon v. Couch, 623 S.E.2d 754 (Ga. Ct. App. 2005) William S. Hoebel Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation William S. Hoebel, Court Report, City of Rincon v. Couch, 623 S.E.2d 754 (Ga. Ct. App. 2005), 9 U. Denv. Water L. Rev. 658 (2006). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWGEORGIACity of Rincon v. Couch, 623 S.E.2d 754 (Ga. Ct. App. 2005) (holdingthat an administrative law judge did not err in granting summary de-termination in favor of an administrative agency's denial of a city'sgroundwater withdrawal permit).In 2001, the Environmental Protection Division of the Georgia De-partment of Natural Resources ("EPD") found that the City of Rinconwas withdrawing in excess of its groundwater limit from the UpperFloridan Aquifer. In response, the EPD and the City entered into aconsent order requiring the City to connect its existing water line to anEffingham County transmission main. In September 2003, the Cityapplied for a second groundwater withdrawal permit, allowing it towithdraw additional groundwater from a new well it had drilled intothe Lower Floridan Aquifer. The EPD denied the application on thebasis that the City "failed to demonstrate a need or necessity for thenew water withdrawal" given the consent order. In January 2004, theCity challenged the EPD's denial of their application. An administra-tive lawjudge ("ALJ") granted a motion for summary determination onbehalf of the EPD. The City appealed to the Superior Court of FultonCounty, which affirmed the ALJ's decision. The City then applied fordiscretionary appeal with the Court of Appeals of Georgia.The City claimed that the ALJ erred by not considering each of theten factors set forth in Georgia's Ground-water Use Act ("GWUA"):(1) the number of persons using an aquifer and the object, extent,and necessity of their respective withdrawals or uses; (2) the natureand size of the aquifer; (3) the physical and chemical nature of anyimpairment of the aquifer adversely affecting its availability or fitnessfor other water uses, including public use; (4) the probable severityand duration of such impairnent under foreseeable conditions; (5)the injury to public health, safety, or welfare which would result ifsuch impairment were not prevented or abated; (6) the kinds of busi-nesses or activities to which the various uses are related; (7) the im-portance and necessity of the uses . . ; (8) diversion from or reduc-tion of flows in other watercourses or aquifers; (9) a regional waterdevelopment conservation and sustainable use plan, where applica-ble; and (10) any other relevant factors.The court found that the City failed to prove that the EPD did notconsider all of the factors and further noted that the EPD had no statu-tory requirement to issue findings of fact or conclusions of law demon-strating that it had considered all ten factors. The court pointed outthat, absent statutory language to the contrary, Georgia law entitles anadministrative agency to place more emphasis on one statutory factorthan another. The court also noted that the EPD's emphasis on theVolumne 9COURT REPORTSnecessity of the groundwater withdrawal was in line with Georgia's pol-icy of conserving its water resources as specified in the GWUA.The City also claimed that the ALJ erred when it allowed the EPDto consider alternative water sources when reviewing groundwaterwithdrawal applications. The court held this contention contrary tothe plain language of the GWUA. Although the City claimed that theEPD had a longstanding policy of allowing localities to decide whatsource of water best suits their needs, the court found no evidence tosupport the existence of such a policy. The City further contendedthat the ALJ's determination was in error because the City's proposedwithdrawal would have no adverse effect on other users. The Cityclaimed that the ALJ's determination would force the City to acquireadditional water from more expensive sources, an outcome that is con-trary to public policy. Moreover, the City claimed that the EPD shouldgive it priority over other applicants because the water was for humanconsumption. The court disagreed, noting that the statutory factors setforth in the GWUA are what the EPD should consider and that thestatutory scheme does not require the EPD to grant withdrawal permitsto applicants presenting no adverse effects to other users. Further, thecourt pointed out that the consent order does not force the City topurchase water from Effingham County; rather it gives the City theoption to make the purchase. Moreover, the court noted that even ifthe City's evaluation of costs were true, the EPD could weigh that ex-pense against other public policy concerns. Regarding the City's con-tention that the EPD should give it priority, the court noted that hu-man consumptive use priority considerations exist only in emergencyperiods of water shortage.The City also argued that the consent agreement would not satisfyits water needs. In response, the court noted that the ALJ's determina-tion showed that the consent order would fulfill the City's water needsfor the foreseeable future without the need for further groundwaterwithdrawal. Moreover, the court found no legal error in the ALJ's de-termination that no genuine issue of material fact remained as to theCity's current and projected water needs. The City further argued thatthe EPD abused its discretion when it allegedly encouraged the City toinstall an additional well but then denied its application to use it. Thecourt responded that nothing in the administrative record showed thatany EPD employee promised the City that the EPD would grant itswithdrawal permit upon completion of its well. The City also claimedthat the ALJ erred in retroactively applying an EPD interim strategyregarding Lower Floridan Aquifer withdrawals. The court was unper-suaded and noted that the ALJ had not predicated its legal analysis onthat strategy but rather on the statutory framework of the GWUA.Finally, the City contended that the ALJ's determination was un-constitutional because it deprived the City of due process of law, equalprotection of the laws, and it constituted a taking of property withoutIssue 2WATER LAW REVIEWjust compensation. The court did not agree, finding that although anALJ lacks the authority to hear the claim, parties must plead constitu-tional claims in the administrative court. Because the City failed toraise these issues, it waived its ability to raise them on appeal. Regard-ing the wrongful taking claim, the court noted that the City did notpresent any factual or legal arguments as to why the denial of its appli-cation constituted an unlawful taking without just compensation. Thecourt affirmed the ALJ's grant of summary determination in favor ofthe EPD.William S. Hoebel, IIIIDAHOChisholm v. Idaho Dep't of Water Res., 125 P.3d 515 (Idaho 2005)(holding that owners of property near a proposed dairy failed to provethat Department of Water Resources hearing officer improperly con-sidered the "local public interest" in granting water rights transfer todairy).In order to expand its operations, K&W Dairy ("K&W") filed anapplication with the Idaho Department of Water Resources ("IDWR")for a transfer of water rights to meet the needs of a proposed newdairy, and to flush waste from its parlor and alleys. Over property own-ers Bill Chisholm and Lee Halper's ("property owners") protests, anIDWR hearing officer held a hearing taking evidence on a range ofissues including odor control measures, and issued a preliminary orderapproving K&W's application. The property owners sought review ofthe IDWR decision, arguing that because of odors from the proposeddairy, the water rights transfer did not comport with the local publicinterest standard codified in the controlling Iowa statute. On appealto the Supreme Court of Idaho, the property owners asserted thatK&W's failure to present any evidence that the dairy would not add tothe existing odor problem constituted a violation of the public intereststandard. IDWR and K&W maintained that the findings of fact weresupported by substantial and competent evidence and should be af-firmed.The controlling Idaho statute required the IDWR director to exam-ine all the evidence and to approve the change in whole, in part, orconditionally, if the change was consistent with the conservation ofwater resources in the state and was in the local public interest. TheIdaho Code defined the local public interest as "the affairs of the peo-ple in the area directly affected by the proposed use." The court de-termined that by adopting the general phrase "local public interest,"the legislature intended to include any locally important factor im-pacted by the proposed appropriations.Volume 9

City of Rincon v. Couch, 623 S.E.2d 754 (Ga. Ct. App. 2005)

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City of Rincon v. Couch, 623 S.E.2d 754 (Ga. Ct. App. 2005)

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