A Rainy Night in Georgia

Posted on February 9, 2015 by Richard Horder

On January 5, 2015, the Georgia Supreme Court heard oral argument in the appeal of Ga. River Network v. Turner, a case involving the Georgia Environmental Protection Division’s interpretation of the “stream buffer rule.”  Because the Georgia Court of Appeals’ decision reversed EPD’s longstanding interpretation of the rule, the Supreme Court decision will have wide-ranging impacts.

Grady County desired to construct a 960-acre fishing lake.  Georgia EPD issued a variance allowing the County to encroach on the mandatory 25-foot stream buffer under Georgia’s Erosion and Sedimentation Control Act.  The purpose of the buffer is to protect the natural vegetation that filters contaminants and forms a barrier to sediment flowing toward the waterway.  However, the application of the statute to onsite wetlands created controversy.  The County requested a variance only for the onsite streams, not the wetlands, and EPD agreed a variance was unnecessary for work that would impact any buffer surrounding the wetlands. 

Following a challenge by two environmental groups, the Administrative Law Judge disagreed with EPD’s interpretation of the statute and reversed the variance.  In a series of appeals, the Superior Court reversed that decision, the Georgia Court of Appeals reversed the Superior Court, and the Georgia Supreme Court granted certiorari.

O.C.G.A. § 12-7-6 (b) (15) reads, “There is established a 25[-]foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action” unless one of six exceptions applies, including “[w]here the director determines to allow a variance that is at least as protective of natural resources and the environment.”  This wording raises a question of whether a buffer could exist in instances where no wrested vegetation is present. 

The court of appeals determined the provision merely provided an instruction as to how to measure the buffer and did not contain an implicit exception to the buffer requirement in locations where the shoreline might be rocky or sandy.  The court reasoned that to find otherwise would write large stretches of shoreline out of the rule, and worse, create jagged applicability wherever vegetation is interrupted, which could not be the intention of the legislature.  The court found justification in its decision in the statute’s previous wording that required measurement from the stream’s bank, with no indication that the new measurement protocol was intended to narrow the statute’s basic scope. 

Two dissenting judges found the court’s resolution of the statute’s inconsistency speculative and overreaching.  They argued the legislature might have reasonably concluded that in rocky and sandy areas, no vegetation is present needing protection and so no buffer should exist.  Further, in wetland areas where vegetation continues into the heart of the waterbody, a designated buffer may likewise be unnecessary.  Georgia EPD’s appeal agrees with the dissent, arguing the Court of Appeals imputed its own policy goals on a clearly worded statute without justification.



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