                                THIRD DIVISION
                               ELLINGTON, P. J.,
                              RAY and BETHEL, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     June 13, 2018




In the Court of Appeals of Georgia
 A18A0594. ALTAMAHA RIVERKEEPER, INC. v. RAYONIER
     PERFORMANCE FIBERS, LLC et al.

      ELLINGTON, Presiding Judge.

      This dispute arises from a National Pollutant Discharge Elimination System

(“NPDES”) permit issued in 2015 by the Environmental Protection Division (“EPD”)

of the Georgia Department of Natural Resources renewing appellee Rayonier

Performance Fibers, LLC’s (“Rayonier”) authorization to discharge effluent into the

Altamaha River from its pulp plant in Jesup. Appellant Altamaha Riverkeeper, Inc.

(“Riverkeeper”) filed in the Office of State Administrative Hearings a petition for a

hearing asserting that it and its members had been adversely affected by the issuance

of the permit. Following the hearing, the administrative law judge (the “ALJ”)

reversed the permit. Rayonier and Richard Dunn, in his capacity as the director of
EPD, sought judicial review of the ALJ’s decision. The Superior Court of Wayne

County reversed the ALJ’s decision and affirmed the permit. Riverkeeper appeals

following this Court’s grant of its application for discretionary appeal and argues that

the superior court erred (i) by interpreting Ga. Comp. R. & Regs. r. 391-3-6-.03 (5)

(c) to prohibit only “unreasonable” interference with legitimate water uses and (ii) by

making factual findings about the reasonableness of the interference instead of

remanding the case to the ALJ to make factual findings consistent with its order. For

reasons that follow, we affirm in part, vacate in part, and remand the case with

direction.

      The Federal Clean Water Act permits individual states to enact and administer

their own water-quality programs, subject to certain federal minimum standards. See

33 USC §§ 1251, 1313; Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County,

318 Ga. App. 499, 502 (1) (734 SE2d 242) (2012). Under the Georgia Water Quality

Control Act, OCGA § 12-5-20 et seq. (“WCQA”), persons operating a facility that

discharges a pollutant from a point source into the waters of the State must obtain an

NPDES permit before any such discharge. OCGA § 12-5-30; Upper Chattahoochee

Riverkeeper, Inc. v. Forsyth County, 318 Ga. App. at 502 (1). EPD administers the



                                           2
NPDES program within the State. See OCGA § 12-5-23 (b) (3), (c) (15); OCGA §

12-5-30.

       The Georgia Board of Natural Resources (the “Board”) is responsible for

issuing regulations governing, among other things, water use classifications and water

quality standards. OCGA § 12-5-23 (a) (1) (C). Many water quality standards impose

numeric limits for matters such as chemical constituents, bacteria, dissolved oxygen,

and pH levels, among others.1 The rules, however, also contain non-numerical

“narrative standards” that address aesthetic concerns. At issue here is the narrative

standard established by Ga. Comp. R. & Regs. r. 391-3-6-.03 (5) (c), which, at the

relevant time, provided: “All waters shall be free from material related to municipal,

industrial or other discharges which produce turbidity, color, odor or other

objectionable conditions which interfere with legitimate water uses.”

       The ALJ interpreted the phrase “interfere with legitimate water uses” to mean

“any interference” with such uses, and concluded that such standard applies to all

waterways and for all legitimate uses, without exception and without consideration

of the designated use of the waterway. The ALJ further concluded that, to show


       1
           See, e.g., Ga. Comp. R. & Regs. rr. 391-3-6-.03 (5) (e) (i), (ii); 391-3-6-.03
(6) (a).

                                             3
interference with legitimate water uses, the “use of the river [must be] actually

hindered or disrupted.” Applying that standard, the ALJ concluded that Rayonier’s

effluent has the reasonable potential to cause a violation of the narrative water

standard for water and color. In particular, the ALJ found that the legitimate uses of

the Altamaha, such as fishing or swimming or boating, are likely to be hindered

during low flow due to aesthetic objections of local residents and visitors.2

      On judicial review, the superior court found that the ALJ erred in interpreting

the narrative standard. Finding EPD’s interpretation of the standard to be reasonable

and in accord with regulatory and statutory purposes, the superior court held that the

narrative standard protected the use of waters from unreasonable interference, rather

than any interference. The superior court further found that Rayonier’s discharge does

not unreasonably interfere with legitimate uses of the river and so reversed the ALJ’s

decision and affirmed the issuance of the permit.




      2
         More specifically, the ALJ found that “during low flow conditions, the color
of the discharge is still distinct from the river water, creating a plume of color that
travels along the bank for some distance, and that the unpleasant odor of the effluent
is less diluted and more pronounced under such conditions.”



                                          4
      1. The Appellant contends that the superior court erred in interpreting Ga.

Comp. R. & Regs. r. 391-3-6-.03 (5) (c) to prohibit only “unreasonable” interference

with legitimate water uses. In reviewing an administrative agency’s decision, the

“court shall not substitute its judgment for that of the agency as to the weight of the

evidence on questions of fact.” OCGA § 50-13-19 (h). See OCGA § 12-5-44 (a)

(proceedings for judicial review of administrative decisions under the WCQA shall

be in accordance with OCGA § 50-13-19). The superior court may, however, reverse

or modify the agency decision

      if substantial rights of the appellant have been prejudiced because the
      administrative findings, inferences, conclusions, or decisions are: (1) In
      violation of constitutional or statutory provisions; (2) In excess of the
      statutory authority of the agency; (3) Made upon unlawful procedure;
      (4) Affected by other error of law; (5) Clearly erroneous in view of the
      reliable, probative, and substantial evidence on the whole record; or (6)
      Arbitrary or capricious or characterized by abuse of discretion or clearly
      unwarranted exercise of discretion.


OCGA § 50-13-19 (h).

      On appeal from the superior court’s decision in an administrative appeal, this

Court’s “duty is not to review whether the record supports the superior court’s

decision but whether the record supports the final decision of the administrative

                                          5
agency.” (Citation and punctuation omitted.) Quigg v. Ga. Professional Standards

Comm., 344 Ga. App. 142, 148 (809 SE2d 267) (2017). In this case, the ALJ’s final

order constituted the final agency decision for purposes of judicial review. See Ga.

Comp. R. & Regs. r. 391-1-2-.08. “[T]his Court conducts a de novo review of claimed

errors of law in the superior court’s appellate review of an ALJ’s decision.

Furthermore, the interpretation of a statute or regulation is a question of law and,

thus, is also reviewed de novo on appeal.” (Citation and punctuation omitted.)

Barrow v. Dunn, 344 Ga. App. 747, 749 (812 SE2d 63) (2018).

      At issue is the correct interpretation of the narrative standard, particularly the

phrase “interferes with legitimate water uses.”

      In construing agency regulations, we employ the basic rules of statutory
      construction and look to the plain language of the regulation to
      determine its meaning. Nevertheless, even if words are apparently plain
      in meaning, they must not be read in isolation and instead, must be read
      in the context of the regulation as a whole. Furthermore, we must defer
      to an agency’s interpretation and enforcement of its own rules.


(Punctuation and footnotes omitted.) Upper Chattahoochee Riverkeeper, Inc. v.

Forsyth County, 318 Ga. App. at 502 (1).




                                          6
       We read the text of the narrative standard “in its most natural and reasonable

way, as an ordinary speaker of the English language would.” (Citation and

punctuation omitted.) Tibbles v. Teachers Retirement System of Ga., 297 Ga. 557, 558

(1) (775 SE2d 527) (2015). “Interfere” is not defined in the rules governing water use

standards.3 However, “interfere” can be generally defined as “to check; hamper;

hinder; infringe; encroach; trespass; disturb; intervene; intermeddle; interpose.”

Huckaby v. Cheatham, 272 Ga. App. 746, 751 (1) (612 SE2d 810) (2005)

(punctuation omitted; quoting Black’s Law Dictionary (5th ed. 1979), p. 730). As

used in the regulation, a “legitimate” use encompasses a broad range of water uses.

In particular, the definition of “reasonable and necessary uses” of water include

“drinking water supplies, conservation, protection, and propagation of fish, shellfish,

wildlife and other beneficial aquatic life, agricultural, industrial, recreational, and

other legitimate uses.” (Emphasis supplied.) Ga. Comp. R. & Regs. r. 391-3-6-.03 (3)

(j).



       3
        Although not defined within Rule 391-3-6-.03, the Board has defined
“interference” or “interfere” within Rule 391-3-6-.08, a water quality control rule
addressing pretreatment of permits for discharge of any pollutant into a publicly
owned treatment works, to constitute a “discharge which . . . inhibits or disrupts” a
publicly owned treatment works. Ga. Comp. R. & Regs. r. 391-3-6-.08 (2) (j).

                                          7
       “The common and customary usages of the words are important, but so is their

context.” (Citations omitted.) Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851)

(2015). Accordingly, in construing the meaning of narrative standard we also look to

the WCQA and the regulation as a whole. The policy of the State, as expressed in the

WQCA, is that “the water resources of the state shall be utilized prudently for the

maximum benefit of the people” and “to require where necessary reasonable usage

of the waters of the state and reasonable treatment of sewage, industrial wastes, and

other wastes prior to their discharge into such waters.” OCGA § 12-5-21 (a). In turn,

according to the regulations, the purpose of the State in establishing water quality

standards is, among other things, “to protect the public health or welfare in

accordance with the public interest for drinking water supplies, conservation of fish,

wildlife and other beneficial aquatic life, and agricultural, industrial, recreational, and

other reasonable and necessary uses[.]”4

       The regulations establishing water quality standards include “general criteria,”5

which apply to all waters, and “specific criteria,”6 which impose standards based on


       4
           Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (a).
       5
           Ga. Comp. R. & Regs. r. 391-3-6-.03 (5).
       6
           Ga. Comp. R. & Regs. r. 391-3-6-.03 (6).

                                            8
water use classification, also known as “designated use,”7 which uses include

drinking water supplies, recreation, fishing, wild river, scenic river, and coastal

fishing.8 At the location of Rayonier’s discharge, the designated use of the Altamaha

is “fishing,” which has the most relaxed water criteria and provides for propagation

of aquatic life, secondary contact recreation,9 and “any other use requiring water of

a lower quality.”10 The narrative standard at issue in this case is a general criterion,

and as such “is deemed to be necessary and applicable to all waters of the State.”11

The specific criteria based on designated uses are “in addition to the general

criteria.”12 The narrative standard does not contain a drought or low flow exception.

      In addition to the plain language of the narrative standard and its context in the

regulation as a whole, we consider EPD’s interpretation of the standard. A “reviewing

      7
       The Clean Water Act contemplates that States adopt water quality standards
based on the “designated uses” of navigable waters as well as water quality criteria
based on such uses. 33 USC § 1313 (c) (2) (A).
      8
          Ga. Comp. R. & Regs. r. 391-3-6-.03 (4).
      9
      “Secondary contact recreation” constitutes “incidental contact with the water,
wading, and occasional swimming.” Ga. Comp. R. & Regs. r. 391-3-6-.03 (3) (k).
      10
           See Ga. Comp. R. & Regs. ¶. 391-3-6-03 (6) (c) and 391-3-6-.03 (14).
      11
           Ga. Comp. R. & Regs. r. 391-3-6-.03 (5).
      12
           Ga. Comp. R. & Regs. r. 391-3-6-.03 (6).

                                           9
court must give deference to the agency’s interpretation of statutes it is charged with

enforcing or administering and to the agency’s own rules and regulations.” Northeast

Ga. Med. Center, Inc. v. Winder HMA, Inc., 303 Ga. App. 50, 56 (2) (b) (693 SE2d

110) (2010). In construing an administrative rule, “the ultimate criterion is the

administrative interpretation, which becomes of controlling weight unless it is plainly

erroneous or inconsistent with the rule.” (Citation and punctuation omitted.) The

Atlanta Journal &c. v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988). See

Northeast Ga. Med. Center., Inc. v. Winder HMA, Inc., 303 Ga. App. at 57 (2)

(accord). The ALJ acknowledged that EPD’s interpretation of the narrative standard

was explained through testimony at the hearing. Consistently with that testimony, the

ALJ, in pertinent part, described EPD’s interpretation as follows:

      [T]hese [narrative water quality] standards must be considered in the
      context of the particular water’s “designated use.” [T]he narrative water
      quality standards do not require that all people get to use all sections of
      every waterbody at all times. Rather, for multi-use bodies of water, like
      the Altamaha, there must be a reasonable accommodation of all
      legitimate uses, including industrial discharges. This section of the
      Altamaha’s designated use is fishing, the lowest designation in terms of
      water quality, and the narrative standard should not be interpreted to
      convert the designated use to some higher use.



                                          10
      The narrative standard addresses a broad range of aesthetic concerns, including

“any objectionable conditions,” which cannot “interfere” with another broad category,

“legitimate water uses.” To “interfere” with a use may encompass a varying degree

of conduct. The scope of the narrative standard, even when considered in the context

of the regulation as a whole, is unclear. The EPD’s interpretation of the rule is not

inconsistent with the WCQA and the regulatory scheme. The policy of the State is

that its water resources be used for the maximum benefit of the people. OCGA § 12-

5-21 (a). It is consistent with the WCQA and the regulations governing water use that

interference with legitimate water uses be assessed by interference with the public’s

use of the water, and not by reference to any one or a small group of persons whose

own aesthetic sensibilities might hinder their personal use of the river. In other words,

the EPD could reasonably conclude, as it did, that the narrative standard does not

require that “all people get to use all sections of every waterbody at all times.” It is

also a fundamental rule of statutory construction “to avoid a construction that makes

some language mere surplusage.” (Citation and punctuation omitted.) Lyman v.

Cellchem International, Inc., 300 Ga. 475, 477 (796 SE2d 255) (2017). Thus, it was

proper for the EPD to interpret the narrative standard as not intended to convert the

                                           11
designated use of a water body to a more protected use. Finally, the plain language

of the narrative standard does not specify the degree of interference with legitimate

water uses that would constitute a violation of the rule. The DCH’s interpretation of

the rule as encompassing a reasonableness standard in assessing a violation, as

opposed to the ALJ’s finding that the rule precludes “any” interference, avoids

unreasonably absolute and therefore potentially absurd applications of the rule.

      Riverkeeper asserts that the EPD’s interpretation of the narrative standard is

nothing more than a convenient litigating position and should not be afforded

deference. In the federal context, deference to an agency’s interpretation is

      unwarranted when there is reason to suspect that the agency’s
      interpretation does not reflect the agency’s fair and considered judgment
      on the matter in question. This might occur when the agency’s
      interpretation conflicts with a prior interpretation, or when it appears
      that the interpretation is nothing more than a convenient litigating
      position, or a post hoc rationalization advanced by an agency seeking to
      defend past agency action against attack.


(Citation and punctuation omitted.) Christopher v. SmithKline Beecham Corp., 567

U.S. 142, 155 (II) (A) (132 SCt 2156, 183 LE2d 153) (2012). While we find this

reasoning persuasive, Riverkeeper does not show that the offered testimony was not

the EPD’s fair and considered judgment. See Auer v. Robbins, 519 U.S. 452, 462 (III)

                                         12
(B) (117 SCt 905, 137 LE2d 79) (1997) (even though agency interpretation came in

form of legal brief, there was no reason to suspect it did not constitute the agency’s

fair and considered judgment). Riverkeeper does not point to anything in the record

indicating that EPD has taken an inconsistent position in the past. The interpretation

was advanced during the administrative proceedings, and not afterwards. See Martin

v. Occupational Safety and Health Review Comm., 499 U.S. 144, 154-156 (111 SCt

1171, 113 LE2d 117) (1991) (interpretation of regulation during administrative

adjudication was agency action, not a post hoc rationalization of it). The Board’s

amendment to the narrative standard during the course of this appeal is also consistent

with the interpretation of the narrative standard offered by EPD during the hearing.13

We conclude, therefore, that the EPD’s interpretation of the narrative standard was

entitled to deference. The superior court did not err, as alleged by Riverkeeper, in


      13
         During the pendency of this appeal, it is undisputed that the Board amended
the narrative standard to provide: “All waters shall be free from material related to
municipal, industrial or other discharges which produce turbidity, color, odor or other
objectionable conditions which unreasonably interfere with the designated use of the
water body.” The express purpose of the amendment was to “clarify the current
language.” See Jackson v. Delk, 257 Ga. 541, 543 (3) (361 SE2d 370) (1987)
(considering “clarification” by a zoning board of its decision during the pendency of
the appeal). It appears from the parties’ supplemental briefing that the amendment to
the regulation has been formally adopted by the Board and nothing remains to be
done at the state level, but that the revised rule remains subject to EPA approval.

                                          13
concluding that the narrative standard prohibits “unreasonable” interference with

legitimate water uses.

      2. Riverkeeper also contends that the superior court erred by making factual

findings about the reasonableness of the interference, instead of remanding the case

to the ALJ to make findings consistent with its order. In reversing the ALJ’s decision,

the superior court concluded that the ALJ’s “findings regarding extensive use of [the

subject] portion of the river for fishing and recreation establish that Rayonier’s

discharge does not unreasonably interfere with legitimate uses of the river so as to

violate the narrative water quality standard.” Accordingly, the superior court reversed

the ALJ’s decision and affirmed the issuance of the NPDES permit.

      Where a judgment is rendered under an erroneous theory of law, an appellate

court must generally reverse and remand for reconsideration under the correct theory

of law. See Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. 648,

650 (2) (324 SE2d 194) (1984) (requiring that case be reconsidered by the ALJ). And

in its appellate review, the superior court was not authorized to “substitute its

judgment for that of the agency as to the weight of the evidence on questions of fact.”

OCGA § 50-13-19 (h). Compare, e. g., Bonus Stores, Inc. v. Hensley, 309 Ga. App.

129, 132 (710 SE2d 201) (2011) (the appellate division of the Workers’

                                          14
Compensation Board weighs evidence heard by the ALJ, unlike the superior court).

Much of the evidence, such as the duration and frequency of low flow events, would

need to be considered anew in assessing whether the interference with legitimate

water uses was unreasonable, as opposed to whether there was any interference. We

cannot say what the ALJ would have concluded had she applied the correct standard.

See Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. at 650 (2).

Accordingly, we vacate the order of the superior court to the extent that it affirms the

issuance of the NPDES permit and remand with direction that the superior court in

turn remand the case to the ALJ for reconsideration in light of this opinion. See id.

      Judgment affirmed in part and vacated in part, and case remanded with

direction. Ray, J., concurs. Bethel, J., concurs specially in Division 1 and dissents in

Division 2.*

      *THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2 (a).




                                          15
 A18A0594. ALTAMAHA RIVERKEEPER, INC. v. RAYONIER

          PERFORMANCE FIBERS, LLC., et al.



      BETHEL, Judge, concurring specially in part and dissenting in part.

      I concur that the EPD’s interpretation of its own narrative standard1 was lawful

and entitled to deference in the context of the Act and the entirety of the regulatory

structure. Moreover, I agree with the superior court that the ALJ’s findings of fact are

thorough and more than sufficient to obviate the need for remand for further fact

finding. I, likewise, agree with the superior court that those findings of fact support



      1
        Of course, citizens and other stakeholders would benefit from clear statements
that reflected the actual intent of the regulator as opposed to broad aspirational
statements that, though adopted as standards, are not consistent with the regulator’s
actual intent to enforce. Nevertheless, as explained by the Presiding Judge, the
agency’s interpretation is entitled to deference.
the legal conclusion that the interference in question was not unreasonable.

Accordingly, I concur specially with Division 1 and I respectfully dissent from

Division 2.




                                      2
