In a high-profile environmental case, the Georgia Supreme Court ruled the 25-foot buffer required by state law between development projects and banks of waterways generally does not apply to marshes and wetlands.
The case arose from efforts by Grady County to construct a 960-acre fishing lake by building a dam that would flood various creeks and wetlands.
With the Monday 6-to-1 decision, written by Justice Robert Benham, the high court reversed the Georgia Court of Appeals, ruling in favor of the director of Georgia’s Environmental Protection Division.
The decision says that under the state’s Erosion and Sedimentation Act, a 25-foot buffer is required only along the banks of state waters edged by “wrested vegetation,” where the force of the water flow has torn away the vegetation, and there is a clean demarcation between water and vegetation.
A section of Georgia’s Erosion and Sedimentation Act says there must be “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, except” where one of six exceptions applies.
One of the exceptions listed is: “Where the director determines to allow a variance that is at least as protective of natural resources and the environment.”
Grady County applied to the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources for a buffer variance to allow it to encroach on the 25-foot buffer required for streams on the site. Georgia River Network and American Rivers opposed the variance, in part because the application failed to address the project’s impact on nearby wetlands.
However, EPD Director Judson H. Turner issued the variance. The river groups then petitioned for an administrative hearing, and an administrative law judge reversed the variance, concluding it failed to account for buffers required for wetlands on the site.
Turner and the county then sought judicial review in different courts — Turner in Fulton County Superior Court and Grady County in Grady County Superior Court.
NOTE: This decision does not affect the coastal marshlands buffer legislation (Senate Bill 101), which applies only to coastal marshlands, where buffers will now be established at the “marsh-upland interface”. The wrested vegetation rule affirmed by the Supreme Court applies to all other wetlands. The Environmental Protection Division is in the process of amending its existing rules to implement SB 101. The rules are currently in an informal stakeholder process, which can be accessed here: http://epd.georgia.gov/development-amendments-erosion-and-sedimentation-rules. The Georgia Forestry Association will continue to monitor and report on this issue as needed.
This article was originally published by the Thomasville Times-Enterprise on June 15, 2015. Click here to view the story at timesenterprise.com →