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Cities of Fairburn, Palmetto, and Union City Draft Surface Water Withdrawal Permit Response to Comments July 23, 2020

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Cities of Fairburn, Palmetto, and Union City Draft Surface Water Withdrawal Permit Response to Comments July 23, 2020 Cities of Fairburn, Palmetto, and Union City Draft Surface Water Withdrawal Permit Response to Comments July 23, 2020 Atlanta Comment 1: Atlanta is particularly concerned with EPD’s apparent acceptance of the South Fulton Cities characterization of the underlying facts, including the reasons underlying the South Fulton Cities’ rejection of Atlanta’s existing, fully-permitted water capacity to provide the needed wholesale water supply to the South Fulton Cities. Atlanta has provided wholesale water to Fairburn and Union City since 1957 and has continued to do so despite Fairburn and Union City’s unwillingness to enter into a long term contract. Despite the South Fulton Cities’ protestations otherwise, this water supply is available and Atlanta remains willing and able to enter into a long term water supply contract with the South Fulton Cities. As such, this Permit should be denied. Response to Atlanta Comment 1: The absence of a long-term contract between the City of Atlanta and the Cities of Fairburn, Palmetto, and Union City (South Fulton Cities) has been considered by EPD in its review of the water withdrawal application by the South Fulton Cities. The fact that these cities and their citizens are without the benefit and guarantee of a long-term water supply contract weighs in EPD’s assessment and decision-making. EPD does not have the legal authority to determine, and therefore does not take a position on, who bears the responsibility of the lack of a contract. Under the 1999 Fulton County Service Delivery Strategy (SDS), the South Fulton Cities are designated water supply providers to citizens residing inside the cities’ geographic areas. Before any newer version of the SDS is agreed upon, the 1999 version remains the effective one. This in combination with the lack of a long-term water supply contract clearly establishes the need of water supply for the cities and their residents. Atlanta Comment 2: In addition, even if the Draft Permit is issued, the South Fulton Cities are required to obtain a Permit to Operate a Public Water System under the Safe Drinking Water Act of 1977, O.C.G.A. 391-3-5, and the Georgia Rules for Safe Drinking Water, r. 391-3-5, which will required this issue to be revisited under a different regulatory standard, which the South Fulton Cities will not be able to satisfy. The South Fulton Cities will be required to “evaluate connecting to an existing locally governmentally owned system” and EPD is prohibited from issuing this permit “until the owner has provided acceptable certification to the Division outlining the reasons why the system cannot connect to an existing local governmentally owned system.” GRR 391.3.5-.04(4) and (5). EPD Guidance provides that, before EPD can consider a water system development project, the permit applicant must provide a “written letter . from the nearest governmentally owned water system denying the owner’s request for water service.” See EPD Water System Review and Permitting Process (October 2016). Further, this document provides that if this and other mandatory information is not received within 90 days of commencement of phase I of the three phase permitting process, “no further consideration will be given for the water system development project.” Atlanta is the “nearest governmentally owned water system.” The South Fulton Cities cannot demonstrate that it has requested this service from Atlanta or that Atlanta has denied providing this service. In fact, Atlanta will continue to agree to provide water service to the South Fulton Cities and is ready to develop a long-term contract to do so. Response to Atlanta Comment 2: First, Rule 391-3-5-.04 is one of Georgia Rules for Safe Drinking Water. It does not address how an application of a surface water withdrawal permit is reviewed and processed. Therefore it does not pertain to the permit application under consideration. Second, the 1999 SDS clearly establishes that the South Fulton Cities are the designated providers of water supply to residents within the geographic areas of the cities. Proper consideration and issuance of permits to facilitate the cities’ providing such water supply service to their citizens is consistent with State laws and regulations (O.C.G.A. § 12-5-31, O.C.G.A. §12-5-170, and Rules 391-3-6-.07 and 391-3-5-.04). Third, the South Fulton Cities (applicants) already have Permits to Operate Public Water Systems. The City of Fairburn has Permit GA1210004; the City of Palmetto has Permit GA1210008; the City of Union City has Permit GA1210010. The issuance of a surface water withdrawal permit to these cities does not in any ways prevent these permits from being renewed or modified in the future. Atlanta Comment 3: Atlanta is also concerned with the inflated population projections leading to inflated rates for water withdrawal and potential impacts on “Water Wars” negotiations, as recently exemplified by the State of Alabama’s concerns with Coweta County Water and Sewerage Authority’s request for a water withdrawal permit2. Chattahoochee Riverkeeper first raised this concern in its comments dated May 8, 2019. Chattahoochee Riverkeeper questioned the “astronomical” population projections presented in the 2017 Study by the Carl Vinson Institute of Government at the University of Georgia for the South Fulton Cities. The EPD Response does not address Chattahoochee Riverkeeper’s concerns with the population projections but rather merely states that “EPD does not have the expertise to complete such detailed analysis internally and depends on the work of these professional demographers and sources for project evaluations on a consistent basis.” This is not a sufficient response to valid concern. Atlanta has solicited its own population study for the South Fulton Cities. The attached report prepared by Stantec/SG Joint Venture indicates that the Vinson Institutes projections are significantly higher than projections based on data presented and extrapolated using Census and the Governor’s Office of Planning and Budget Information3. Specifically, Stantec/SG Joint Venture is “of the opinion that the water withdrawal need used by EPD to justify the water withdrawal amounts for the Three Cities is not justified by available data.” Rather than eschew the responsibility to prepare an independent population analysis, EPD must conduct its own independent analysis to support the withdrawal rates. If the proposed rates cannot be supported, the rates must be revised to reflect realistic population projections. Response to Atlanta Comment 3: First, O.C.G.A. § 12-5-31 states, “The division shall take into consideration the extent to which any withdrawals, diversions, or impoundments are reasonably necessary, in the judgment of the director, to meet the applicant's needs and shall grant a permit which shall meet those reasonable needs; provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the area.” The law clearly articulates the division’s consideration of whether a withdrawal is “reasonably necessary,” and the law explicitly authorizes the Director of EPD to exercise his/her judgement in this consideration. The Carl Vinson Institute is a respected and reliable source of demographic projections, and the institute works closely with the Governor’s Office of Planning and Budget in developing the State of Georgia’s population projections. EPD Director exercised his judgement and concluded that the population projections provided by the Institute for the South Fulton Cities as credible and reliable. Second, the alternative population projection provided by the City of Atlanta’s consultant, Stantec/SG Joint Venture (Stantec), appears to be problematic. Both Stantec’s developing of an annual rate of historical population growth and its application of that annual growth rate in its projection of population (extrapolation into the future) appear to be on a linear basis. In other words, the compounding effect of population growth has been ignored in the Stantec analysis. If the annual growth rates had been developed on an exponential basis and if those annual growth rates had been applied on an exponential basis in the projection process, much higher population projections would result. Third, the South Fulton Cities’ demographer, Carl Vinson Institute considered trends in local option sales tax indicating their expanding share of population within Fulton County. The South Fulton Cities also provided evidence of increasing industrial and commercial developments within the cities. These factors have not been considered or assessed by Stantec’s population projection. Chattahoochee Riverkeeper Comment 1: CRK does not agree with EPD’s assessment in Response #8 that this permit application and “current form of the project complies with the” current updated and relevant Plan. Response to Chattahoochee Riverkeeper Comment 1: See July 20, 2020 letter from the Metropolitan North Georgia Water Planning District (Metro District) (Attachment A) confirming consistency between the proposed project and the Metro District Water Resource Management Plan (Metro Plan). The Metro District letter clearly expressed its judgement that the project is consistent with Appendix B of the Metro Plan. The South Fulton Cities also worked closely with the Metro District and EPD to ensure compliance with all of the Metro Plan’s action items, as evidenced by the Director’s May 19, 2020 and May 20, 2020 issuance of “Good-faith Letters” to the cities. EPD has made the determination that the combination of the above clearly establishes compliance of the South Fulton Cities with various aspects of the Metro Plan. Chattahoochee Riverkeeper Comment 2: EPD and the District should require the Cities to submit a Plan amendment request to the District because the current form of the project does not comply with the Plan. Response to Chattahoochee Riverkeeper Comment 2: See Response to Chattahoochee Riverkeeper Comment 1. Chattahoochee Riverkeeper Comment 3: Regarding Response #4: The Cities do not appear to have met the requirements of Rules for Safe Drinking Water 319-3-5-.04.(4) and (5).
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