ARNOLD BOWEN v. JEFFREY W. COWN, DIRECTOR ENVIRONMENTAL PROTECTION DIVISION, DEPARTMENT OF NATURAL RESOURCES

FIFTH DIVISION
BROWN, C. J.,
RICKMAN, P. J., and MERCIER, J.

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.
https://www.gaappeals.us/rules

June 1, 2026

In the Court of Appeals of Georgia
A26A0366. BOWEN et al. v. COWN.

RICKMAN, Presiding Judge.

The Director of the Environmental Protection Division of the Georgia

Department of Natural Resources (the “EPD”) filed a verified complaint to enjoin

Arnold and Hazel Bowen (“the Bowens”) from disposing of domestic septage1

without a permit. The superior court entered a permanent injunction enjoining this

activity, and the Bowens filed this direct appeal. As more fully set forth below, we now

vacate the trial court’s order and remand this case for further proceedings.

1. The record shows that in October 2023, the EPD issued an administrative

order finding that the Bowens had violated various rules and regulations promulgated

1
Domestic septage is a another way to refer to the waste from a domestic septic
tank.
under the Georgia Comprehensive Solid Waste Management Act of 1990, as

amended, OCGA § 12-8-20 et seq. (“Solid Waste Act”), and the Georgia Water

Quality Control Act, OCGA § 12-5-20 et seq. (“Water Quality Act”), by disposing

of septage or other domestic solid waste on their land without a permit. The order

directed them to cease the activity, hire a professional engineer or geologist, submit

groundwater and soil monitoring plans, and undergo periodic inspections to determine

compliance. The Bowens did not appeal the ruling, and the EPD subsequently filed

a request for entry of judgment in the superior court pursuant to OCGA § 12-8-30.3.

The superior court entered the requested judgment making the administrative order

the judgment of the court in July 2024. The Bowens directly appealed to this Court,

but we dismissed that appeal because a discretionary application was required under

OCGA § 5-6-35(a)(1).

In January 2025, the EPD filed a “Verified Complaint to Enjoin Unpermitted

Dumping of Septage and Solid Waste,” alleging the Bowens were still violating the

law in various ways. The superior court entered an order granting the request for a

permanent injunction, prohibiting the Bowens from “conducting or allowing

2
unpermitted handling of solid waste” on their property. The Bowens then filed this

direct appeal.2

2. The facts underlying this appeal are essentially undisputed. The Bowens

operate a septic tank disposal business, which involves pumping the contents of

domestic septic tanks from various locations into closed trucks and then discharging

the contents of the trucks onto land they own in Rockdale County. The Bowens did

not have a permit for the disposal of septic tank waste on their property, which led the

EPD to file the initial enforcement action and, when compliance was still not

forthcoming, the complaint for injunctive relief that is the subject of this appeal. In

granting the injunction, the superior court specifically found the Bowens’ activities

2
The EPD moved to dismiss this appeal, arguing that – as with their prior
appeal – an application for discretionary review was required. However, this case
stands on a different footing, and we previously denied the EPD’s motion to dismiss.
As explained in our unpublished order, while under OCGA § 5-6-35(a)(1), a
discretionary application is required to appeal superior court orders “reviewing
decisions of . . . state and local administrative agencies” (emphasis added), in this case
the Bowens are appealing the superior court’s subsequent order granting a permanent
injunction, which arose from a separate proceeding and which did not mention the
administrative order or the 2024 superior court order and “did not enhance, alter,
enforce, or clarify any aspect” of those prior rulings. Thus, because this appeal does
not involve superior court review of an administrative decision, we concluded that it
does not fall within OCGA § 5-6-35(a)(1) and denied the EPD’s motion to dismiss.
The EPD also filed a separate, successful contempt action against the Bowens,
but they withdrew their appeal from that order.
3
violated both the Solid Waste Act and the Water Quality Act, as well as the rules and

regulations promulgated pursuant to those Acts, “including but not limited to, the

unpermitted handling of domestic septage.” The Bowens argue that the EPD had no

authority to “outlaw” the disposal of septage on their property, asserting, among

other things, that the land where the septage was discharged was not subject to

regulation by the EPD because it was operated as a family farm; that domestic septage

does not fall within the definition of “solid waste” as defined in the Solid Waste Act;

the Solid Waste Act does not have a rule or regulation setting out the requirements to

obtain a permit for the disposal of septic tank waste; and that the rule in the Water

Quality Act detailing the requirements for obtaining a permit for land disposal sites

under that Act was promulgated without apparent statutory authority. We consider

each of these contentions in turn.

(a) In large part, the various arguments the Bowens advance in this appeal are

grounded in their assertion that the disposal of the septage took place on property they

operate as a family farm. Although they characterize the evidence that they engaged

in “agricultural operations,” as that term is defined in OCGA § 1-3-3(4.1), as

undisputed, they appear to rely on only the statements of their attorney at the hearing

4
on the injunction3 to support this assertion. The trial court made no specific finding

as to whether the Bowens operate a farm on their property, and we likewise cannot

resolve this issue, which would require both fact-finding and the development of

“facts” on which to base such a determination. In any event, as more fully set forth

below, we do not think their characterization of their property as a family farm places

it outside the regulatory authority of the EPD.4

As an initial matter, we note that there is nothing in the language of either the

Solid Waste Act or the Water Quality Act that exempts farmland from the regulatory

authority of the EPD.5 The Bowens, however, say that their family farm is specifically

3
The Bowens’ attorney stated at the hearing that it was his understanding that
the Bowens have sheep and goats on the property and grow grass and hay to feed
them.
4
We have also considered and find to be without merit the various arguments
the Bowens make concerning exemptions under federal law and related assertions.
5
As stated above, the trial court determined that the Bowens’ unpermitted
disposal activities violated both the Solid Waste Act and the Water Quality Act.
Although, as explained below, the applicability of the Water Quality Act is not
altogether clear in this case, it is worth noting that the Water Quality Act rules
specifically refer to agricultural land as a favorable septage disposal site to the extent
such land has a low potential for public exposure and sets out pathogen control
requirements when animals graze on the land or crops or grass are grown there. Ga.
Comp. R. & Regs. r. 391-3-6-.23(2)(m),(n);(9). This further undercuts the Bowens’
argument that farmland is outside the regulatory authority of the EPD under these
5
excluded from the Solid Waste Act because it is not a “solid waste handling facility”

under OCGA § 12-8-22(35), which defines such facility as “any facility the primary

purpose of which is the storage, collection, transportation, treatment, utilization,

processing or disposal . . . of solid waste.”(emphasis added). Although the Bowens

assert that their property is not a facility primarily used as a solid waste disposal site,

they have pointed to nothing in the record to demonstrate whether their property is

primarily used as farmland or primarily used for septage disposal.

Moreover, solid waste handling facilities are not the only type of land disposal

regulated under the Solid Waste Act. For example, a “[d]isposal facility” is defined

more broadly in the Solid Waste Act to include “any facility or location where the final

deposition of solid waste occurs[.]” OCGA § 12-8-22(8) (emphasis added). Thus, the

Solid Waste Act does not apply only to disposal “facilities.” In fact, the provision of

the Solid Waste Act that specifically governs the regulation and permitting of the type

of waste at issue here – “septic tank waste from any one or more septic tank pumping

and hauling businesses” – refers to the regulation and permitting of a “land disposal

site.”OCGA § 12-8-41. Based on the undisputed evidence, the Bowens were using at

Acts.
6
least a portion of their property as a “disposal site” for the septic tank waste they

collected as part of their pumping and hauling business. Accordingly, we reject the

Bowens’ contention that their designation of their land as farmland takes their septage

disposal activities outside the regulatory authority of the EPD.

(b) The Bowens also argue that, regardless of the designation of their property,

their disposal activities cannot be regulated under the Solid Waste Act because

domestic septage does not qualify as a solid waste. Solid waste is defined broadly in

the Act to include

any garbage or refuse; sludge from a waste-water treatment plant, water
supply treatment plant, or air pollution control facility; and other
discarded material including solid, semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural
operations and community activities, but does not include . . . solid or
dissolved materials in domestic sewage[.]

OCGA § 12-8-22(33) (emphasis added). Pointing to this definition, the Bowens argue

that because domestic sewage is specifically exempted from the definition of solid

waste under the Solid Waste Act, domestic septage, which they say is

“indistinguishable” from sewage since it is generated from the same sources, should

also be excluded from the definition of solid waste. However, domestic sewage is

7
exempted from the definition of solid waste and thus not regulated under the Solid

Waste Act because it is regulated in the Water Quality Act, OCGA § 12-5-29(a).6

Further, the rules promulgated under the Water Quality Act specifically distinguish

between domestic sewage and domestic septage, making it clear that they are not, in

fact, indistinguishable.7 Lastly, as stated above, OCGA § 12-8-41 plainly brings the

land disposal of septage collected as part of a pumping and hauling business within the

regulatory authority of the EPD under the Solid Waste Act, making it clear that

6
The Solid Waste Act and the Water Quality Act both appear in Title 12 of the
Georgia Code. Broadly stated, the Solid Waste Act seeks to protect the health and
safety of the citizens of this State from the environmental concerns that arise from the
disposal of solid waste, OCGA § 12-8-21, while the Water Quality Act protects our
water quality. OCGA § 12-5-21. These are complementary, and sometimes
overlapping, activities. For example, “pollutant” is defined to include, among many
other things, “solid waste” “discharged into the waters of the state.” OCGA § 12-5-
22(9). And, as discussed in Division (2)(c), it appears that in certain specified
circumstances, the land disposal of septage may also be regulated under the Water
Quality Act. See Ga. Comp. R. & Regs. 391-3-6-.23(1)(a) (establishing regulations and
permitting requirements for “any land disposal site that receives septic tank waste
(septage) that is applied via subsurface injection or incorporation into the soil.” (emphasis
added).
7
Compare Ga. Comp. R. & Regs. r. 391-3-6-23(2)(i), which defines “domestic
septage” as “the liquid or solid material removed from a septic tank, [but] does not
include liquid or solid material removed from a septic tank or similar treatment works
that receives either commercial wastewater or industrial wastewater” with id. (2) (j),
which defines domestic sewage as “water and wastewater from humans or household
operations that is discharged to a treatment works.”
8
domestic septage is considered a solid waste under that Act even if domestic sewage

is not.

(c) Control and Permitting of Domestic Septage. The Bowens also argue that even

if OCGA § 12-8-41 appears to grant regulatory and permitting authority to the EPD

over the land disposal of septage from a septic tank pumping and hauling business

such as their business, the EPD never promulgated any rules or regulations governing

the permitting of this activity despite being explicitly directed by the legislature to do

so. OCGA § 12-8-41 provides in pertinent part as follows: “[t]he department shall

provide by rule or regulation for the regulation and permitting of any land disposal site

that receives septic tank waste from any one or more septic tank pumping and hauling

businesses.”The Bowens are correct that there appears to be no specific rule or

regulation promulgated pursuant to OCGA § 12-8-41 that specifically sets out the

requirements for obtaining a land disposal site permit by a septage hauling business.

Although the EPD points to other permitting statutes and regulations in the Solid

Waste Act, it is undisputed that the Bowens never applied for a permit under OCGA

§ 12-8-41 or any other provision of the Act and no determination has been made

9
concerning the applicability of these other statues, rules or regulations.8 Thus, the

applicability of those other statutes and regulations has not been squarely addressed.

Further, the trial court specifically found that the land disposal of the septage

here violated the permitting requirements of both that Act and the Water Quality Act.

As noted in footnote 6, the Water Quality Act contains a rule that appears to regulate

and set out permitting requirements for land disposal of septage that occurs via a

specific process. However, the record is not developed on whether the septage

disposal method used here comes within this rule. Thus, we find it necessary to

remand to the trial court for further fact finding on this issue.

(d) Moreover, the permitting issues under both Acts are intertwined with the

Bowens’ claim that the statutes and regulations at issue in this case do not pass muster

under the nondelegation doctrine. See Republican National Comm. v. Eternal Vigilance

Action, Inc., 321 Ga. 771, 792(6) (917 SE2d 125) (2025).9 Nondelegation scrutiny

8
For example, OCGA § 12-8-24 provides that “No person shall engage in solid
waste handling in Georgia or construct or operate a solid waste handling facility . . .
without first obtaining a permit[.]”
9
Although a nondelegation analysis implicates certain constitutional separation
of power issues, the question here concerns the rulemaking authority of an executive
branch agency and does not draw into question the “the constitutionality of a law,
ordinance or constitutional provision.”Ga. Const. of 1983, Art VI, Sec. VI, Para. II.
10
involves a three step process. Id. “First, we determine whether the General Assembly

actually delegated the authority at issue to the executive branch agency.” Id. at 795.

As the next step, we determine whether the General Assembly possessed the allegedly

delegated power. Id. As the last step, “we assess whether the delegation was

permissible.” Id.

Here, the trial court did not make any specific ruling on whether the regulatory

scheme at issue here survives nondelegation scrutiny. Although we believe we would

be within our discretion to undertake this analysis as an initial matter, it appears to us

that the record must be, as set out above, further developed on the permitting process

for permits issued pursuant to the authority set out in OCGA § 12-8-4110 of the Solid

Waste Act and on the applicability of the permitting requirements of the Water

Quality Act to the type of disposal activity used here so that an initial determination

Accordingly, jurisdiction of this issue does not fall within the exclusive appellate
jurisdiction of the Supreme Court of Georgia. E.g., Eternal Vigilance, 321 Ga. at
774(1).
10
We note that the statute specifies that new permits issued for land disposal
sites that receive septic tank waste from septic tank pumping and hauling businesses
“shall” be issued “under th[at] Code section.”
11
can be made about what statutes and rules are at issue here.11 Once that process is

complete, the trial court should then undertake, in the first instance, a nondelegation

doctrine analysis.12 Accordingly, we vacate the trial court’s order and remand for

further proceedings, which may include evidentiary hearings, consistent with this

opinion.

Judgment vacated and case remanded with direction. Brown, C. J., and Mercier, J.,

concur.

11
For example, the Bowens argue that the rule in the Water Quality Act that
purports to regulate septage that is applied via subsurface injection or incorporation
into the soil, see Ga. Comp. R. & Regs. r. 391.3-6-.23(1)(a), was enacted without
proper statutory authority because there is no statute comparable to OCGA § 12-8-41
in the Water Quality Act. However, delving into this issue without knowing whether
the septage disposal method mentioned in that rule was even used here raises the risk
of issuing an opinion that is merely advisory.
12
To be clear, the Solid Waste Act appears in Chapter 8 of Title 12, and the
Water Quality Act appears in Chapter 5 of Title 12. The rules accompanying the Solid
Waste Act are designated as Ga. Comp. R. & Regs., r. 391-3-4 and those
accompanying the Water Quality Act are at Ga. Comp. R. & Regs., r. 391-3-6. The
Water Quality Act contains a rule that sets out certain requirements for a permit under
OCGA § 12-8-41. Ga. Comp. R. & Regs. r. 391-3-6-.23(17)(a). It will be for the trial
court to determine in the first instance whether setting out permitting requirements
in an agency rule promulgated under the Water Quality Act for a code section that
appears in the Solid Waste Act is permissible under the nondelegation doctrine.
12