Georgia Supreme Court to hear Grady County lake case appeal

ATLANTA — An environmental impact case out of Grady County that could have significant impact on development in other parts of Georgia is headed for the Georgia Supreme Court.

The state of Georgia is appealing a narrow ruling by the Georgia Court of Appeals that determined a 25-foot buffer is required for development by wetlands. Oral arguments are set to be heard by the high court on Monday.

According to facts of the case provided by the Georgia Supreme Court, at issue is a 960-acre fishing lake that Grady County officials want to create by building a dam that would flood various creeks and wetlands. Under the state’s Erosion and Sedimentation Act, a 25-foot buffer is required “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, including the exception of where “the director determines to allow a variance that is at least as protective of natural resources and the environment.”

Grady County officials applied to the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources (DNR) for a buffer variance that would allow it to encroach on the 25-foot buffer on the site, drawing opposition to the request from Georgia River Network and American Rivers. Those organizations argued the application failed to address the project’s impact on nearby wetlands.

After EPD Director Judson H. Turner issued the variance, the river groups 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 sought judicial review in Fulton County Superior Court and county officials did the same in Grady County Superior Court, with both courts reversing the administrative law judge, finding that the state law only required the buffer along the banks of state waters edged by vegetation that was disturbed or moved by normal stream flow or wave action.

Those court rulings were appealed by the river organizations to the state Appeals Court, which reversed the superior courts in a 4-3 vote. The Appeals Court concluded the lower 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.” The majority said the statute requires a buffer adjacent to “all state waters.”

The Appeals Court acknowledged that the statute does not set out a way of measuring a buffer where there is no wrested vegetation, but said its interpretation was more in line with legislative intent, particularly given the Legislature’s decision to provide six exceptions to the requirement and its stated intent to strengthen erosion and sediment control.

Dissenters on the Appeals Court argued that the statute’s specification that the buffer be required along the water’s “banks” implies a body of water, such as a river or lake. The dissent argued that given the lawmakers’ intent to prevent erosion, it is possible the General Assembly concluded a buffer simply was unnecessary where there is no vegetation along the banks or where there is continuous growth of vegetation into the waters, as in wetlands.

The high court agreed to review the case.

Turner is arguing that the Court of Appeals majority misinterpreted the statute and ignored the plain language of the statute, rewriting it to accomplish what it concluded lawmakers intended based on a law review article that the EPD director says is an improper source. Turner contends the Court of Appeals violated the separation of powers doctrine by overstepping its authority.

Grady County officials, who are repeating the arguments made by the Court of Appeals dissent opinion and by Turner, says the issue is vitally important to the county’s residents because the county has committed to the project financially, has already begun construction, and will suffer injury if forced to delay.

Ten different groups, including the Georgia Chamber of Commerce, together filed a single amicus brief against expanding the buffer requirement to include wetlands.

The river groups argue the Court of Appeals majority decision is the correct one, and that Turner and those in the amicus brief are the ones who want to rewrite state law to limit the generality of the establishment clause. The EPD director’s argument that it is impossible to set the boundary of a buffer where there is no wrested vegetation fails, the groups argue, because the buffer “simply begins at a reasonable point on the banks, which was the rule applicable in all cases from 1989 until 1994 …”