In a high-profile environmental case that has important repercussions for coastal Georgia, the state Supreme Court ruled Monday that the 25-foot buffer required by state law between development projects and the banks of waterways generally does not apply to marshes and wetlands.
With Monday’s 6-1 decision, written by Justice Robert Benham, the high court reversed the Georgia Court of Appeals, ruled in favor of the director of Georgia’s Environmental Protection Division and found that under the state’s Erosion and Sedimentation Act, a 25-foot buffer is required only along the banks of state waters that are 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.
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. A section of the Erosion and Sedimentation Act states that 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 EPD for a buffer variance that would 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 that 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. Both courts reversed the administrative law judge’s ruling, finding that the law requires a 25-foot buffer only along the banks of state waters edged by vegetation that was disturbed or moved by normal stream flow or wave action.
The river groups then appealed to the Court of Appeals, which reversed the trial courts’ rulings on the variance. In a 4-3 vote, the Court of Appeals majority concluded that “the Superior Courts erred by determining that the 25-foot buffer requirement of the Erosion and Sedimentation Act does not apply unless the state waters at issue have banks with wrested vegetation.” Rather, the appellate court’s majority said, the statute requires a buffer adjacent to “all state waters,” not only those where vegetation has been wrested by normal stream flow or wave action.
Turner and Grady County then appealed to the state Supreme Court, which agreed to review the case to determine whether the Court of Appeals erred in ruling that the statute requires a 25-foot buffer on all state waters regardless of whether they are edged by wrested vegetation.
“Because we find that it did err, its judgment is reversed,” Monday’s majority opinion says. “The cardinal rule of statutory construction requires this court to look diligently for the intention of the General Assembly, and the golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.
“Here, the Court of Appeals erred because the literal language of the statute does not require a buffer for state waters alongside banks without wrested vegetation.”
Justice Harold Melton dissents, arguing that the statute presents an ambiguity by failing to provide guidance on how to measure the buffer zone for state waters that lack wrested vegetation. Normally, in the face of such an ambiguity, “this Court must give strong deference to the interpretation of the statute made by the Director of the Environmental Protection Division of the Georgia Department of Natural Resources,” the dissent says. But such deference is not absolute, and here, the EPD’s “extreme interpretation of (the statute) is unreasonable and manifestly contrary to the statute, which is intended to ‘protect water quality and aquatic habitat’ of all state waters. Providing no buffer at all to state waters without sufficient wrested vegetation works to the detriment of the statutory purpose, and as such, cannot be considered reasonable.”
The cases are Turner v. Georgia River Network et al and Grady County Board of Commissioners v. Georgia River Network et al.