On Monday, the Georgia Supreme Court ruled that the 25-foot buffer zone required by the Erosion and Sedimentation Control Act does not apply to freshwater marshes and wetlands. This is because these types of state waters lack “wrested vegetation”, which is best described as a clear delineation between the actual water and the surrounding vegetation. The law states that “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”, therefore, because these waters physically do not have wrested vegetation the Georgia Supreme Court had to decide if wetlands and marshes were protected under this law.
This Georgia Supreme Court ruling is based off a literal interpretation of the state law. Since there is no wrested vegetation along wetlands and marshes, they cannot be included in the waters that are required to have the 25 foot buffer, according to the state law. Justice Robert Benham wrote that “no further interpretation or analysis is required” because the language is so literal when defining these buffers.
This issue was brought to court when environmentalist groups objected to a project in Grady County t they felt did not fully address the impacts it would have on surrounding wetlands when applying for a variance from the EPD. The project is a 960-acre lake, which includes a dam that would flood 129 acres of wetlands and 9 miles of streams in the surrounding area to create the lake.
The Council for Quality Growth, The Georgia Chamber of Commerce, the Georgia Association of Water Professionals, the Georgia Forestry Association, the Georgia Industry Environmental Coalition, the Metro Atlanta Chamber, the North Georgia Water Resources Partnership, and the Regional Business Coalition of Metropolitan Atlanta in lodging an Amicus Brief with the Supreme Court of Georgia in support of the State’s challenge to the ALJ’s ruling.
The Supreme Court of Georgia stated that:
“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….” Had the legislature placed a period after the word “waters” rather than a comma and had gone no further, then there would be no other conclusion but that buffers are established along the banks of all state waters, regardless of the existence of wrested vegetation. But that is not what the legislature did. By adding the phrase “as measured horizontally from the point where vegetation has been wrested,” the General Assembly expressly defined how the buffer “is established.” Since the legislature offered no other method for the buffer to be established but for measuring it horizontally from the point of wrested vegetation, the buffer necessarily cannot be applied to state waters that are adjacent to banks without wrested vegetation. No further interpretation or analysis is required.
This ruling is not expected to have a large impact because the Environmental Protection Division has been measuring buffers using the presence of “wrested vegetation” since 1989. In a recent article published in the AJC, EPD Director Jud Turner states that “the decision affirms EPD’s long-standing practice of administering the Erosion and Sedimentation Control Act by measuring buffers from the point of wrested vegetation.” Earlier this year, the state legislature clarified that a 25 foot buffer is required for coastal waterways and, therefore, this ruling only applies to freshwater marshes and wetlands.
When asked about the court’s ruling, Harold Reheis, CQG Board Member and former EPD Director said, “the State Supreme Court got it right in this ruling. The 1989 law that set up stream buffer protections did so for the true streams—those that have a streambed and banks and that have water flowing in them some or all of the time. Georgia has over 70,000 miles of those streams, and there are many miles of them in all 159 counties. The law has protected their buffers since 1989 and will continue to do so. EPD Director Turner also got it right: this ruling does not change the law, nor does it affect how EPD has always administered it.”
This sentiment was also echoed by Council Executive Committee Member and, noted attorney and Partner at Morris, Manning & Martin, Gerald Pouncey, who stated, “the Georgia Supreme Court’s decision confirmed EPD’s long-held interpretation of the state buffer rule and, therefore, precludes the expansion of further regulatory oversight and red tape with respect to development in general and obtaining buffer variances in Georgia.”
Businesses and industries across the state are relieved by the Supreme Court’s ruling because it prevents overly restrictive permit requirements that would impede development projects in the surrounding areas. According to the Georgia Chamber, the 25 foot buffer requirement for marshes and wetlands “would have imposed a wholly unnecessary, cumulative, and cumbersome new level of permitting that would have had a major impact on local economies, job growth, and economic investment in Georgia”. Therefore, continuing existing EPD practices, which this ruling supports, will allow for new projects benefiting state and local economies to be implemented efficiently, while also protecting crucial water resources across the state.