As the Council previously reported, the Georgia Court of Appeals had reversed, in a 4-3 decision, two superior court rulings on the buffer requirement under the Erosion & Sedimentation Act, holding that the buffer requirement still applies even when there is no “wrested vegetation.” This has potentially serious implications for development, as it will limit the ability of developers to build on or utilize land near open waters.
The Council for Quality Growth partnered with several other trade associations dedicated to the economic well-being of the State to file a new amicus brief this past Wednesday as a friend of the court on behalf of EPD Director Turner and the Grady County Board of Commissioners. The amicus brief was filed in the Georgia Supreme Court. To read the amicus brief, click HERE.
According to King & Spalding attorney Lewis Jones, who has been involved in this case for some time and has filed amicus briefs on behalf of the Council for Quality Growth and other vested partners in both the Superior Courts and the Court of Appeals: “If not corrected, this decision could have serious practical consequences for the development community. For example, activities currently regulated by the Army Corps of Engineers under the nationwide permit program will now require a variance from the EPD director. This could cause serious delays, because only certain types of projects are even eligible for a variance, and there’s mandatory waiting period and a public comment period before a variance can be granted.”
Expanding the buffer will cause major economic impacts, especially if the requirement is interpreted as applying to not only open state waters, but also to wetlands, which is still unclear. Wetlands are ubiquitous in Georgia and if land disturbing activities are prohibited within 25 feet of these features, projects of all kinds throughout the State will be substantially delayed, if not prohibited entirely.
It is the position of the Amici and the Council that while stream buffers and wetland protections are both important, the existing rules and regulations serve this purpose already. The buffer is simply part of the comprehensive program our General Assembly has enacted to keep sediment out of state waters. If the existing laws are proven to be inadequate, this is a matter to be addressed by the General Assembly, as stated in the amicus brief.
We appreciate the work of Lewis Jones and all of our partners who jointly filed this amicus brief and who have served as friends of the court in favor of the EPD and Grady County. The Council for Quality Growth will continue to monitor this issue, and will inform members of new developments.