Beyond Atlanta

Case Watch: Will the Georgia Supreme Court Uphold the Point of the Erosion and Sedimentation Act?

Case Watch is a new piece that will highlight ongoing legal battles over land use, environmental, and development issues in Georgia (and occasionally throughout the country).

Buffer Zones fws.gov

Buffer Zones
fws.gov

What’s the point of the controlling sedimentation and preventing erosion along our waterways? On January 5, 2015, the Georgia Supreme Court will be asked to interpret a single sentence in a comprehensive piece of legislation that will soon answer that question (at least in the eyes of the Court). At issue is the the Georgia Erosion and Sedimentation Act (“GESA”), which (among many other things) requires a 25 foot buffer (meaning no development within 25 feet) along all state waters. Back in 2012, the Grady County Board of Commissioners was issued a permit by the Georgia Environmental Protection Division (“EPD”) to build a 960 square foot fishing pond. The only problem is that the permit allows them to build within 25 feet of a wetland, seemingly in violation of GESA.

Note: The buffer zone issue discussed back in the winter/spring of this year is a separate issue. That involved a GA EPD rule that applied a 150 foot buffer throughout the state in areas near drinking water sources. 

Land in Grady County landofamerica.com

Land in Grady County
landofamerica.com

Section 12-7-6(15)(a) of the GESA states: “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, except:…” Predictably this sentence is followed by a bunch of exceptions to the 25 foot rule.  The Georgia River Networks sued the EPD for improperly issuing its permit to the Grady Board of Commissioners because the permit would allow development within 25 feet of a stream with wrested vegetation. The issue here is whether the clause ” as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action” constitutes an exception to the 25 foot rule, i.e. you do not need a 25 foot buffer along parts of a stream that has no wrested vegetation. An administrative judge agreed with the Georgia River Networks that it does not constitute an exception, it merely states how the buffer should be measured. However, both the Fulton and Grady County Superior Courts disagreed and held that the buffer only applies along streams with wrested vegetation.

Enter the Georgia Court of Appeals. Back in July it held that the 25 foot buffer around state water applies even where there is no wrested vegetation. This is basic statutory interpretation: if the sentence is ambiguous then the court should look to the purpose of the statute. Since the GESA states how to measure a buffer zone based on wrested vegetation, but not how to measure a buffer zone when no vegetation is present the legislation is inconsistent and should be resolved based on the intent of the legislation. Since the point of the legislation is to add additional protections against erosion and sedimentation (as defined in the “Purpose” section of the legislation) and reading the clause to mean that “no buffer is required if there is no vegetation” would completely undermine that purpose, the clause should be read as strictly being a tool for measuring buffer zones. Additionally, the clause shouldn’t be read as an exception since it isn’t included in the lists of exceptions – a list that directly follows the clause.

Reading the clause as an exception instead of as measuring rules would create ridiculous and unintended consequences. The Court stated that if the legislation literally meant buffers only apply when there is wrested vegetation then this would create buffers that come and go every few feet just as vegetation along waterways frequently comes and goes every few feet.  Clearly such a haphazard result was not the intent of the legislature.

Sedimentation in the Coosa River coosa.org

Sedimentation in the Coosa River
coosa.org

In looking at this, let’s remember the larger point of why we want to control sediments and erosion: to reduce the amount of pollution in state waters in order to maintain quality for native species, to allow for recreational uses, and to maintain clean drinking water (and GESA specifically states this idea). Vegetation serves as a natural filter of sediments and prevents erosion. It is when we destroy this vegetation along waterways that erosion and sedimentation become problematic. So legislation that specifically states an intent to reduce erosion and sedimentation, but then only requires a buffer when vegetation exists is completely contradictory. The Georgia Court of Appeals rightly pointed this out.  When vegetation exists we need a buffer to protect this natural filter and when vegetation doesn’t exist we need a buffer to prevent excessive direct runoff into streams. The buffer allows the runoff to at least be filtered through some portion of soil before entering our waterways.

As discussed in previous posts, the reduction of sediments in our waterways has been championed by liberal environmentalists and conservative sportsmen alike. Instead of fighting this, the business community should realize that the natural parts of our state are a major advantage and we need to preserve them for the well being of our communities. In a quick take, the Court of Appeals is correct in stating that it wouldn’t make any sense for legislation designed to control erosion and sedimentation to allow an exception to the buffer zone rule when no vegetation is present. It contradicts the very point of the legislation. Alas, since this isn’t a constitutional case, the Georgia Legislature can always amend the GESA following a final court decision. If it doesn’t like how the Georgia Supreme Court decides to interpret its work, it can always step in and say so.

Update June 16, 2015: The Georgia Supreme Court issued its ruling on the case and discussion can be found here.

Disclaimer: The information contained in sustainableatlantaga.com (hereinafter “this site”) should not be construed, or relied upon, as legal advice. By accessing this site it is understood that no attorney-client privilege has been formed between you and the publisher. This site is neither an advertisement for legal services nor an invitation to form an attorney-client relationship. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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