On Tuesday, April 22, Georgia EPD Director Judson Turner released a letter and memorandum outlining key revisions to the EPD’s Marshland Buffer Standards. The decision affects both buffers along tidal creeks adjacent and buffers at the interface between saltwater marsh and land. The changes are effective immediately and supersede all previous EPD guidance to determine marshland buffers.
The new policy follows the text of the Georgia Erosion and Sediment Control Act (“E&S Act”) and establishes that a 25-foot buffer will only be required and enforced if two elements are present: (1) “a bank to waters of the state”, and (2) “wrested vegetation”. If either element is not present, then no buffer is required.
For the majority of marshland, the bank to waters of the state is present; as a result, the presence of wrested vegetation becomes incredibly important.
This policy shift helps to remove some points of confusion and should make the policy more clear than it had been before under a 2004 EPD memorandum from then-EPD Director Carol Couch. Under the 2004 memorandum, the boundaries for salt marsh buffers under the E&S Act were determined and measured from the “jurisdictional line” – or J.D. Line – established by the Coastal Resources Division of the Georgia Department of Natural Resources under the Coastal Marshland Protection Act (CMPA). As EPD Director Turner explained, the CMPA is a comprehensive statute designed to regulate the protection of salt marshes in Georgia; it had been passed by the Legislature in addition to the E&S Act. The EPD’s 2004 memorandum had established the J.D. Line as the standard in an effort to maintain consistency between the E&S Act and the CMPA.
EPD Director Turner stated in his letter announcing the new policy that:
“The 2004 guidance has been a subject of some controversy for years and, as of late, has received renewed scrutiny from a variety of parties. I have reviewed the 2004 guidance in light of these questions, considered the enforcement challenges presented by application of the 2004 guidance and sought counsel from the Georgia Attorney General’s office. After thoroughly reviewing all aspects of this issue, and in spite of the laudable goal of consistency between the E&S Act and the CMPA, I have determined that the 2004 guidance memorandum must be revised.”
Harold Reheis, Executive Vice President at Joe Tanner & Associates and Council for Quality Growth Board Member, noted that in many or most cases, this policy shift provides developers with 25 additional feet that they can develop. Unless wrested vegetation is present between the salt marsh land and the uplands of a property, a buffer is no longer required and the developer can engage in land-disturbing activities in that 25-foot space. This means that buffers are now eliminated along most coastal marshlands, although most tidal creeks will still maintain buffers because wrested vegetation does exist in those locations.
In a policy memo explaining the new EPD policy, attorneys at King & Spalding explained that “the buffer requirement is onerous because very little can be done within a buffer, and it is difficult and often impossible to obtain a variance. Variances can only be obtained for certain types of projects, and only by applying directly to the EPD Director (even if other E&SA matters are handled by the County).”
Finally, King & Spalding noted that this topic is a hot-button issue, and there will be serious efforts to amend the E&S Act to restore the marshland buffer during the 2015 Legislative Session. The Council will continue to monitor this issue, as well as future legislative activity regarding marshland buffers, and will promote the interests of our members and the development industry as a whole as this issue continues to unfold.
To read Director Turner’s letter and the associated memorandum, click HERE.
To read King & Spalding’s policy memo on the revisions, click HERE. Special thanks to Lewis Jones at King & Spalding for providing this excellent piece of analysis.