DEKALB COUNTY v. JEFFREY W. COWN, IN HIS OFFICIAL CAPACITY AS DIRECTOR, ENVIRONMENTAL PROTECTION DIVISION

THIRD DIVISION DILLARD, P. J., GOBEIL and PIPKIN, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules November 2, 2026 In the Court of Appeals of Georgia A26A1379. DEKALB COUNTY v. JEFFREY W. COWN, IN HIS OFFICIAL CAPACITY AS DIRECTOR, ENVIRONMENTAL PROTECTION DIVISION et al. GOBEIL, Judge. This case involves a dispute over provisions included in two National Pollutant Discharge Elimination System (“NPDES”) permits issued by the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”) to DeKalb County, Georgia (the “County”). Here, the County appeals from the final decision of the Administrative Law Judge (“ALJ”), affirming the issuance of the permits, which was affirmed by operation of law when the superior court did not enter an order within the time prescribed by OCGA § 12-2-1(c). Specifically, the County contends that the ALJ erred in: (1) concluding that the challenged Comprehensive Nutrient Optimization Plan (“CNOP”) permit provisions are not end-result requirements or effluent limits but merely “best management practices” (“BMPs”); (2) concluding that EPD was not required to conduct a reasonable potential analysis before imposing the CNOP provisions; (3) concluding that the CNOP provisions are reasonable or necessary under 40 CFR § 122.44(k)(4), and upholding the provisions despite the absence of facility-specific evidence; (4) rejecting the County’s request for agency records; and (5) concluding that the CNOP provisions do not violate DeKalb’s Home Rule Rights Although the ALJ did not abuse its discretion in finding that the CNOP provisions here constituted BMPs, we conclude that the ALJ’s finding that those provisions were reasonably necessary for the two facilities involved here was clearly erroneous, and we reverse. The following facts were found by the ALJ and are largely undisputed. The County owns and operates the Snapfinger Creek and Polebridge Creek Advanced Wastewater Treatment Facilities (collectively, the “Facilities”), both of which use biological nutrient removal processes.1 The Facilities are required to have NPDES 1 Treated wastewater contains nutrients, including nitrogen, phosphorus, and their derivatives. Nutrients are a food source for algae. As a result, an excess of nutrients can lead to excessive growth of algae — an “algal bloom”— which, in turn, can deplete the dissolved oxygen in a body of water and lead to killing aquatic life. 2 permits issued by the EPD to regulate the treated wastewater that they discharge. The Facilities discharge into the South River, which in turn flows into Lake Jackson.2 In 2024, Lake Jackson was found to be in violation of its water quality criteria for chlorophyll-a (the green pigment found in algae), indicating that it had an excess of algae. When a water body, such as Lake Jackson, becomes impaired for chlorophyll-a, the EPD is required to develop a Total Daily Maximum Load (“TMDL”), which includes waste load allocations for “point sources”3 like the Facilities. The process of developing a TMDL is intensive, involves a lot of work, including collecting data on algal growth potential tests and sediment oxygen demand, and had not been completed with respect to Lake Jackson. In 2024, the EPD, through its Director Jeffrey W. Cown, reissued NPDES permits to the County for the Facilities, which included new CNOP conditions. As relevant here, the permits imposed a CNOP condition mandating that within 24 2 Georgia does not have water quality standards for nutrients in the South River, though it does have standards for nutrients in Lake Jackson. 3 OCGA § 12-5-22(8) defines “Point source” as “any discernible, confined, or discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, [or] conduit, ... from which pollutants are or may be discharged.” 3 months, the County “shall, at a minimum, identify and quantify sources of nutrients entering the wastewater treatment plant, evaluate potential source reductions, identify and implement operational adjustments aimed to reduce nutrients, and establish annual nutrient reduction goals.” The CNOPs also required that the CNOPs be updated annually, and that each year the Facilities would submit a “detailed progress report that provides a summary of the reduction goals and numeric targets developed for the previous year and discussion of how the goals and targets were achieved, BMPs that have been implemented, new reduction goals and targets for the following year.” The County filed two substantively identical petitions for a hearing on the NPDES permits, challenging the CNOP conditions. The petitions, which were consolidated, alleged that the CNOP conditions were effluent limitations,4 and that the EPD did not follow the proper regulatory procedure for enacting these permit terms. Specifically, the petitions claimed that the EPD had not established water quality standards for nutrients applicable to Lake Jackson or the South River and thus, 4 As discussed below, effluent limitations are defined as permit terms that restrict quantities, concentrations, or rates of discharges. See 40 CFR § 122.2; OCGA § 12-5-22(3). 4 had not determined whether the Facilities required such conditions. Additionally, the County asserted that the CNOP requirements were premature and unjustified. Both parties moved for summary determination. The County maintained that the CNOP provisions were effluent limitations, and even assuming that they were BMPs, they were not authorized under 40 CFR § 122.44(k) because the EPD had not demonstrated that the provisions were “reasonably necessary” to protect and maintain the State’s waters. The EPD countered that the CNOP provisions were not end-result requirements or effluent limits but BMPs, and that EPD had followed the implementation requirements. With its materials, EPD submitted the affidavit of Anna Truszczynski, the EPD chief of the watershed protection branch, attesting that the reissued permits contained CNOP provisions, and that the CNOP provisions in the permits “established a set of best management practices that EPD believes further the purposes of the Clean Water Act,” but that the provisions “do not actually require Dekalb to reduce its nutrient outputs.” In opposition, the County submitted the affidavit of the acting director of the County department of watershed management, in which he avowed that compliance with the CNOP requirements would be extremely burdensome and costly. 5  After an evidentiary hearing, in an order dated November 18, 2024, the ALJ denied the County’s motion for summary determination, but partially granted EPD’s motion. In doing so, the ALJ outlined the implementing regulations of the Clean Water Act (“CWA”), specifically 40 CFR § 122.44, which requires certain permit conditions to be included in NPDES permits. In particular, the ALJ examined 40 CFR § 122.44(d)(1)(iii) and found that “one such required condition is a WQBEL [Water Quality-Based Effluent Limit], which is necessary to achieve water quality standards,” but that this condition may be included in a permit only after “the permitting authority has performed a reasonable potential analysis” and determined that “a discharge causes [or] has the reasonable potential to cause ... a State water quality standard for an individual pollutant.” The ALJ then analyzed the use of BMPs, as outlined in 40 CFR § 122.44(k)(1)-(4), which are used “to control or abate the discharge of pollutants” and can be used when: “[n]umeric effluent limitations are infeasible;” “[t]he practices are reasonably necessary to achieve effluent limitations and standards,” or “[t]he practices are reasonably necessary to ... carry out the purposes and intent of the CWA.” 6  After setting forth the regulatory framework, the ALJ determined that the CNOP provisions at issue were BMPs, as EPD contended, and not effluent limits. In reaching this conclusion, the ALJ stated: the Permits do not require Petitioner to include any specific component in its CNOP that actually restricts the amount of a nutrient that Petitioner discharges. Rather, the CNOP condition requires Petitioner to come up with and implement a plan aimed at reducing nutrients. In fact, if Petitioner’s plan does not actually reduce the nutrients it discharges, the Petitioner would not be in violation of its Permits. Based on this reasoning, the ALJ granted EPD’s motion in part, determining, as a matter of law, that the CNOP provisions did not constitute an effluent limit and did not require a reasonable potential analysis. The ALJ also found that the CNOP did not violate the County’s Home Rule Rights. The ALJ denied the County’s motion for summary adjudication, and denied EPD’s motion in part, concluding that a material factual issue remained as to whether the BMPs were “reasonably necessary” as to the County’s specific discharges. Thus, the ALJ set the matter for a hearing to determine whether the BMPs were necessary to carry out the purposes of the CWA. The County then filed a request for agency records under Ga. Comp. R. & Regs., r. 616-1-2-.37 (2020) (“Rule 37”), seeking “favorable, arguably favorable, or exculpatory” records in the possession of the EPD. In response, the EPD argued that 7 Rule 37 requests do not apply in appeals of permit issuance, because that process does not involve investigations, and that the County could obtain the records under the Georgia Open Records Act, OCGA § 50-18-70 et seq. The County then filed a motion for reconsideration asking the ALJ to revisit its November 18, 2024 decision in light of the United States Supreme Court’s decision in City & County of San Francisco v. EPA, 604 US 334 (145 SCt 704, 221 LE2d 166) (2025). The case proceeded to a two-day evidentiary hearing. The County called two witnesses, including an expert, to support its position that the CNOP was not necessary, would result in burdensome costs, and was not reasonably necessary to satisfy the purposes of the CWA. For the EPD, the EPD manager of the wastewater regulatory program and the chief of the watershed protection branch testified that the CNOP provisions did not require the Facilities to set numeric goals, but rather to set reduction goals as part of the process of preventing problems at Lake Jackson. These witnesses testified that the CNOPs sought to empower facilities to make decisions for themselves, to create flexibility and variability among the plans, and to develop comprehensive plans as an interim measure to control pollution. 8  On May 8, 2025, the ALJ issued a final decision, upholding the CNOP provisions as reasonably necessary and finding that EPD’s statewide nutrient strategy concerns justified their inclusion. The ALJ concluded: Because Lake Jackson is now impaired for chlorophyll-a, a response parameter for nutrients, EPD is required to develop a TMDL and waste load allocations for nutrients. However, that process will take years to complete. In the interim, EPD has included the CNOP provision in DeKalb’s permits. Because the development of the TMDL is years away, Lake Jackson is impaired for chlorophyll-a, and DeKalb discharges nutrients that will end up in Lake Jackson, the undersigned concludes that the CNOP provisions are reasonably necessary to restore the chemical, physical, and biological integrity of Lake Jackson. 40 CFR § 122.44(k)(4), 33 USC § 1251. To wait until the TMDL is developed and doing nothing in the interim would be unreasonable. For these reasons, DeKalb has failed to meet its burden to prove that the CNOP provisions are not reasonably necessary and therefore unlawful. Regarding the specific permit terms, the ALJ found [t]he CNOP provisions require the permittee to develop a CNOP that includes a suite of site-specific best management practices aimed at reducing the discharge of nutrients.... At a minimum, the CNOP must identify and quantify sources of nutrients entering the wastewater treatment plant, evaluate potential source reductions, identify and 9  implement operational adjustments aimed to reduce nutrients, and establish annual nutrient reduction goals. Additionally, the ALJ noted that neither permit had an effluent limit for total nitrogen. As to the County’s records request, the ALJ found that the plain language of Rule 37 limited it to investigatory matters, and therefore the rule did not apply in a permit challenge. The AJL also denied the County’s motion to reconsider and EPD’s motion to dismiss, which argued that the County had not preserved its argument that the CNOP provisions were improper. The County sought judicial review before the superior court. On October 3, 2025, the superior court conducted a hearing at which it heard oral argument. However, the court did not enter an order within the time prescribed by law, so the ALJ’s decision was affirmed by operation of law under OCGA § 12-2-1(c). The County filed an application for discretionary review, which we granted. See Case No. A26D0235 (Dec. 30, 2025). This appeal followed. Clean Water Act and Georgia Water Quality Control Act 10  Before addressing the specific arguments the County raises, we consider the basic regulatory scheme underlying this dispute, which derives from the CWA. In broad terms, the CWA prohibits the “discharge of any pollutant” from a “point source” to waters of the United States without, or in violation of, an NPDES permit. 33 USC §§ 1311(a), 1342. Under the CWA, individual states are permitted to enact and administer their own water-quality programs, subject to certain federal minimum standards. See 33 USC § 1313. To that end, the General Assembly enacted the Georgia Water Quality Control Act, OCGA § 12-5-20 et seq., and declared [it] to be the policy of the State of Georgia that the water resources of the state shall be utilized prudently for the maximum benefit of the people, in order to restore and maintain a reasonable degree of purity in the waters of the state and an adequate supply of such waters, 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). To achieve this goal, the EPD is authorized “to require the use of reasonable methods after having considered the technical means available for the reduction of pollution and economic factors involved to prevent and control the 11 pollution of the waters of the state.” OCGA § 12-5-21(b). The Board of Natural Resources (the “Board”) is the Georgia agency responsible for promulgating rules and regulations governing the administration of NPDES, while the responsibility for administering and enforcing the NPDES program in the State falls to the EPD. See OCGA § 12-5-23 (outlining powers and duties of Board and director regarding control of water pollution); Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, 318 Ga. App. 499, 502(1) (734 SE2d 242) (2012) (discussing the statutory scheme under which “the individual states are permitted to enact and administer their own water-quality programs, subject to certain federal minimum standards”); see also Ga. Comp. R. & Regs., r. 391-3-6-.03(2)(c) (2022) (stating that in applying these requirements, the EPD will “consult and cooperate with the Environmental Protection Agency”). As part of this effort, OCGA § 12-5-30(a)mandates that any person owning or 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. See generally Forsyth County v. Waterscape Servs., 303 Ga. App. 623, 624 (694 SE2d 102) (2010) (“[a] wastewater treatment plant may only discharge its by-products onto Georgia 12 land or into Georgia waters in accordance with permits issued by the ... [EPD].”) “Georgia, as do most states, administers the NPDES program within its borders subject to EPA oversight of the permit-issuing procedures. See OCGA § 12-5-23(a) (5)(A), (c)(15).” City of Guyton v. Barrow, 305 Ga. 799, 806(3)(a) (828 SE2d 366) (2019) (citation modified) Thus, in issuing NPDES permits, EPD must comply with the CWA and its “calculations and specifications of effluent limitations” (i. e., restrictions on pollutants) must be in accordance with federal regulations. Ga. Comp. R. & Regs., r. 391-3-6-.06(4)(b) (2020); see generally 40 CFR §§ 122.44, 122.45. The Board also has promulgated a rule pertaining generally to designated use and water-quality standards, Ga. Comp. R. & Regs., r. 391-3-6-.03 (2025), as well as a separate rule pertaining to effluent limits for discharge permits, Ga. Comp. R. & Regs., r. 391-3-6-.06 (2020). Shifting now to our standard of review regarding a superior court’s affirmance of an ALJ determination, we note that: Under Georgia’s Administrative Procedure Act, OCGA § 50-13-1 et seq., parties aggrieved by an agency’s final decision are entitled to judicial review in superior court. The review shall be conducted by the 13  court without a jury and shall be confined to the record; and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact and may affirm the decision of the agency or remand the case for further proceedings. The reviewing court may reverse or modify the agency’s 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. United Celebral Palsy of Ga. v. Ga. Dep’t of Behavioral Health, 353 Ga. App. 387, 397–98(1) (837 SE2d 533) (2020) (punctuation omitted); see OCGA § 50-13-19. 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 agency.” Altamaha Riverkeeper, Inc. v. Rayonier Performance Fibers, LLC, 346 Ga. App. 269, 271(1) (816 SE2d 125) (2018) (quotation marks omitted) (physical precedent only). When the final agency decision is the grant of summary determination, we review the 14 law and the evidence de novo. See Piedmont Healthcare v. Ga. Dep’t of Human Resources, 282 Ga. App. 302, 305(1) (638 SE2d 447) (2006) (applying de novo standard of review where ALJ granted summary determination). Nonetheless, 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, but we must defer to an agency’s interpretation and enforcement of its own rules. Upper Chattahoochee Riverkeeper, 318 Ga. App. at 502(1). With this framework in mind, we now turn to the County’s arguments. 1. The County asserts that the ALJ erred as a matter of law by finding that the CNOP provisions were BMPs rather than effluent limits. In making this argument, the County contends that the ALJ mistakenly concluded that because the CNOP provisions did not impose numerical effluent limits, they were permissible. Citing 40 CFR § 122.44(d)(1)(vii) and Citizens Coal Council v. EPA, 447 F3d 879, 896(III)(A)(2)(c) (6th Cir. 2006), the County claims that even non-numerical limits can function as effluent limits if their purpose is to reduce the nutrients in water and that here the CNOP, along with required progress reports and certifications, constituted an effluent limit. In a separate enumeration, the County argues that the 15 ALJ erred in failing to find that EPD was required to conduct a reasonable potential analysis under 40 CFR § 122.44(d)(1)(ii). For the following reasons, we reject these arguments and find that the ALJ did not err in determining that the CNOP provisions were BMPs. An “effluent limitation” under OCGA § 12-5-22(3) is defined as “any restriction or prohibition ... on quantities, rates, or concentrations [of pollutants] or a combination thereof, of chemical, physical, biological, or other constituents which are discharged from point sources into the water of the state.” See 33 USC § 1362(11) (defining “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources ... including schedules of compliance”); see also 40 CFR § 122.2 (stating an “effluent limitation means any restriction imposed by the Director on quantities, discharge rates, and concentrations of pollutants which are discharged from point sources into waters of the United States”) (punctuation omitted). On the other hand, BMPs are defined as: schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the 16  pollution of “waters of the United States.” BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. 40 CFR § 122.2. See also OCGA § 12-5-30(f) (stating that best management practices may be substituted for numeric effluent limitations without a showing that it would be infeasible to include effluent limitations); Ga. Comp. R. & Regs., r. 391-3-6-.03(2)(b)(ii) (2011). As the ALJ found, the CNOP provisions here do not impose limitations, and instead, constitute best management practices. Though the provisions may be costly and onerous to implement, the permits do not require the County “to include any specific component in its CNOP that actually restricts the amount of a nutrient” that it discharges. The CNOP’s aspirational mandate is that the County create a plan, but as the ALJ concluded, if the “plan does not actually reduce the nutrients it discharges,” the County would not be in violation of its permits. 17  The County relies on City of San Francisco, 604 US at 346(III)(A),which we find supports a determination that the permit provisions here are not effluent limitations.5 There, the EPA and California state officials sued San Francisco for violating the CWA by discharging untreated sewage into the Pacific Ocean and other waterways. The Supreme Court determined, in relevant part, that the EPA and permitting entities could not enforce broad, narrative prohibitions against violating water quality standards that forbade the City from making “any discharge that contribute[d] to a violation of any applicable water quality standard” without setting concrete operational requirements. Id. at 343(I)(C). In defining the word “limitation,” the Court stated: As used in the relevant context, a limitation is a restriction or restraint imposed from without as by law. A provision that tells a permittee that it must do certain specific things plainly qualifies as a limitation. Such a provision imposes a restriction “from without.” But when a provision simply tells a permittee that a particular end result must be achieved and 5 Notably, during oral arguments, this Court had the opportunity to press the EPD on this point. And the EPD emphatically denied that the County could be the subject of an enforcement action for failing to meet any targets or goals made under the provisions at issue. See Court of Appeals Oral Argument Archive for June 9, 2026 argument at www.gaappeals.gov/oral-arguments/oral-argument-video-archive (last accessed Oct.21, 2026). 18  that it is up to the permittee to figure out what it should do, the direct source of restriction or restraint is the plan that the permittee imposes on itself for the purpose of avoiding future liability. In other words, the direct source of the restriction comes from within, not “from without.” Id. at 346(III)(A) (citation modified). Significantly, in reaching its determination, the Court explicitly distinguished narrative limitations — such as those that require permittees to do such things as follow “best practices” and are allowable — from “end-result” requirements that condition compliance on whether the receiving waters meet applicable water quality standards. Id. at 345(II), 354-55(IV)(B)-(C). The above definition of “limitation” demonstrates that the CNOP provisions in this case are not “limitations,” nor are they “end-result” requirements. The provisions do not require the County to achieve a specific result, such as a numerical limit, nor do they require that the County attain a certain percentage reduction. Further, as the ALJ aptly noted, if the nutrient levels in the Facilities’ discharges do not decrease, the County is not subject to penalties. Rather, the provisions regulate the means by which the County is to achieve the water-quality ends by requiring the County to develop plans, implement the plans, report on the results annually, and update its plans for the following year. As such, these narrative provisions are 19 best-management practices, not effluent provisions. See City of San Francisco, 604 US at 341(I)(A), 355(V); compare Waterkeeper Alliance, Inc. v. EPA, 399 F3d 486, 502- 03(A)(1)(b) (2d Cir 2005) (finding regulation for animal feeding operations arbitrary and capricious when “nutrient management plans” did not contain numerical effluent limitations). Because we have concluded that the CNOP provisions were not effluent limitations, we also reject the County’s argument that the ALJ erred in failing to find that EPD was required to conduct a reasonable potential analysis under 40 CFR § 122.44(d)(1)(ii). Under that regulation, before setting water-quality based effluent limitations, the permitting authority must determine that a discharge has the reasonable potential to cause or contribute to a water quality excursion. See Columbus Water Works v. Dunn, 369 Ga. App. 397, 399(1) (893 SE2d 788) (2023) (in permittee challenge of new limits for fecal coliform bacteria and total residual chlorine, this Court reversed ALJ’s summary determination that point source had the reasonable potential to cause or contribute to a water quality excursion and noted that an “NPDES permit must contain effluent limits if the permitting authority determines that a discharge has the reasonable potential to violate water quality standards”). As 20 discussed above, the permit provisions here are not effluent limitations and thus, do not require this analysis. 2. Next, the County contends that even if the ALJ correctly determined that the CNOP provisions were BMPs, the ALJ erred in finding that the BMPs were “reasonable” or “necessary” as required under 40 CFR § 122.44(k)(4). Citing the EPA NPDES Permit Writers’ Manual, the County claims that without facility-specific evidence, the ALJ erred in finding that the requirements for imposing BMPs were met. See www.epa.gov/npdes/npdes-permit-writers-manual § 9.1.2.2. Furthermore, the County argues that the CNOP provisions “cannot be simultaneously aspirational and reasonably necessary.” For the following reasons, we agree with the County that the ALJ’s finding that the BMPs were reasonably necessary was clearly erroneous and we reverse. Because this issue involves a determination of fact, the ALJ’s decision must be affirmed if there is “any evidence” to support it. Hughey v. Gwinnett County, 278 Ga. 740, 742(3) (609 SE2d 324) (2004). Notably, on November 18, 2024, the ALJ partially denied the EPD’s motion for summary determination, stating that while the EPD provided “some factual basis to conclude that the BMPs are reasonably necessary to 21 carry out the intent of the CWA, [it had] not provided sufficient factual bases to show why the BMPs are ‘reasonably necessary.’” Additionally, the ALJ concluded, “given the location of Petitioner’s discharge points, without knowing the extent of nutrient discharge, and without knowing how nutrients accumulate, it is unclear whether the BMPs are reasonably necessary to protect the waterways, including Lake Jackson.” Thus, the ALJ set the matter for a hearing “to determine whether the BMPs are reasonably necessary to carry out the purposes of the intent of the CWA.” After the hearing, in rendering the final decision, the ALJ chronicled the communications between the EPA and EPD regarding the permits, along with EPA feedback that “modeling showed the discharges from the facility could violate the total nitrogen standard for the receiving waters” and that the permits did not contain any conditions to address this “potential violation of the total nitrogen standard.” The ALJ then stated that the “most straightforward way to address the nitrogen discharges from the facility would be to perform a Reasonable Potential Analysis (‘RPA’), develop a total nitrogen strategy, and implement effluent limits in the permits.” Nonetheless, the ALJ recognized that this process would be arduous and thus, the CNOP permit provisions were an “interim measure” aimed at “addressing nutrient 22 discharge comprehensively, including nitrogen.” The ALJ then found that the EPD had contracted with a consultant who used historical data and found that “if the facilities discharged at their maximum flow and historical maximum discharge levels, the total nitrogen water quality standards in the South River arm of Lake Jackson would be violated.” Furthermore, the ALJ noted that “[w]hile the modeling is preliminary, it does indicate that nutrients from point sources and nonpoint sources need to be controlled.” Then, the ALJ determined that while “Georgia does not have water quality standards for nutrients in the South River,” it does have water quality standards, developed in 1997, for Lake Jackson. The ALJ reiterated that though the EPD has been collecting data on Lake Jackson since the water quality standards were developed in 1997, the information needed is “not standard data that EPD collects.” The ALJ then stated that “the hope is that permittees implementing CNOPs will see reductions in nutrient outputs.” The ALJ found that in objecting to these permits, the County bore the burden of proof to show by a preponderance of the evidence that the permits were “wrongfully issued” and that it had not carried this burden. Finally, the ALJ found that the BMPs were “reasonably necessary” to carry out the purpose of the CWA and affirmed the EPD’s decision to issue the permits. 23  To recap the relevant law here, the language of 40 CFR § 122.44(k)(4) provides for BMPs “to control or abate the discharge of pollutants,” when “the practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of” the CWA.6 Similarly, OCGA § 12-5-30(f) states that “best management practices may be substituted for numeric effluent limitations without a showing that it would be infeasible to include effluent limitations.” Though the language of 40 CFR § 122.44(k)(4) is broad, implementing BMPs thereunder still must be grounded in “reasonable necessity,” which connotes some level of specificity. The problem with the ALJ’s factual findings is that there is insufficient evidence tying the Facilities’ discharge into the South River with the degradation of the water quality in Lake Jackson. Compare Hughey, 278 Ga. at 743(3)(b) (finding that ALJ improperly affirmed permit and that “its own factual findings contradict its conclusion”). As the County points out, there was no evidence at the hearing analyzing the County’s nutrient contribution to Lake Jackson, and no flow modeling connecting the Facilities’ discharges to measured Lake Jackson 6 40 CFR 122.44(k)(3) also provides that BMPs can be implemented when “[n]umeric effluent limitations are infeasible,” but there was no evidence regarding infeasibility in this matter. 24 conditions. Similarly, there was no specific evidence that reducing the County’s nitrogen output would address cholrophyll-a levels in Lake Jackson, which receives input from multiple tributaries. Instead, an EPD witness testified that the CNOP would be facility-specific after the facilities assessed the ways that they could control nutrients and that the CNOP condition was part of every permit “for every facility that discharges upstream from a lake, reservoir, or estuary and that we know has nutrients.” Given the record evidence, the ALJ’s findings do not support the conclusion that the BMPs were “reasonably necessary” for the particular facilities. In fact, the ALJ’s November 2024 order recognized this evidentiary deficiency, and stated that the purpose of the hearing was to obtain more precise information about the location of the Facilities’ discharge points, the extent of nutrient discharge, and the nutrients accumulation to see if the BMPs were reasonably necessary for these facilities. But there was no evidence at the hearing to address the ALJ’s specific concerns and thus, the submitted evidence did not show that the BMPs were “reasonably necessary” for these Facilities. See Altamaha Riverkeeper, 346 Ga. App. at 272(1) (stating that “[t]he common and customary usages of the words are important, but so is their context”). 25 Instead, the hearing evidence showed that the CNOP provisions were developed to help with EPD goals as a stopgap measure until a more specific plan could be developed. This amorphous plan, unmoored from evidentiary support, does not equate to the reasonable necessity required under 40 CFR § 122.44(k)(4). Consequently, the ALJ erred in entering the final decision affirming the permits and the superior court erred in affirming that determination. Therefore, we reverse the superior court’s decision and remand the case to the superior court with the direction that the superior court in turn remand the case to the ALJ for proceedings consistent with this determination. See Columbus Water Works, 369 Ga. App. at 402- 03(2) (reversing superior court’s affirmance of ALJ summary determination and remanding case). 3. The County argues that the ALJ erred in rejecting its request for EPD records which were “exculpatory, favorable, or arguably favorable information within his possession and control relative to the allegations in these proceedings.” And, the County asserts that its request was justified under OCGA § 50-13-18(d)(1)7 and Rule 7 OCGA § 50-13-18(d)(1) provides in relevant part, “[i]n contested cases which could result in the revocation, suspension, or limitation of a license, when a licensee makes a general or specific request for exculpatory, favorable, or arguably favorable information that is relative to pending allegations concerning a license, an agency must 26 378 because the proceedings involve the “revocation, suspension or limitation of a license.” We disagree. As the EDP argued in referring the County to its bulk Open Records Act production and argues here , the County’s challenge to the permits could not result in the “revocation, suspension, or limitation” of the permits as required under OCGA § 50-13-18(d)(1) and Rule 37. The power to revoke, suspend or modify a permit rests solely with the EPD director. See OCGA § 12-5-30(d). In a permit challenge, such as this one, the ALJ sits in place of the Board of Natural Resources, not the Director and thus lacks the authority to revise the permit. See OCGA §§ 12-2-2(c)(2)(A), 50-13- 41(b); Upper Chattahoochee Riverkeeper, 318 Ga. App. at 506-07(4)(concluding that ALJ exceeded authority by ordering Director to revise permit because Board lacked permitting authority). furnish the requested information, indicate that no such information exists, or refuse to furnish the information requested prior to a hearing.” 8 Ga. Comp. R. & Regs., r. 616-1-2-.37 (2020) (“Rule 37”) reiterates the statutory provisions, stating in subsection (1), that “in any matter which could result in the revocation, suspension, or limitation of a license, requests by the licensee for exculpatory, favorable, or arguably favorable information relative to any pending issues concerning the license shall be governed by OCGA § 50-13-18(d).” 27  This interpretation of Rule 37 is reinforced by the inapplicability of the request terms to this proceeding. Determining which documents would be “exculpatory, favorable, or arguably favorable” in the present matter does not make sense because this process does not involve an investigation. Similarly, there are no “allegations” against the County from which it can be “exculpated.” Compare Wills v. Composite State Bd. of Med. Examiners, 259 Ga. 549, 554(4) (384 SE2d 636) (1989) (in context of physician licensing investigation, stating that if the identity of the complainant could be viewed as exculpatory, favorable, or arguably favorable to the defense, it must be disclosed). 4. The County also argues that the CNOP provisions violate Georgia’s constitutional home rule provisions. Because of the above resolution of this case, we do not reach this argument. Judgment reversed and case remanded with direction. Dillard, P.