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Buffer Battles: Past, Present and Future?

June 17, 2015

On June 15, 2015, the Georgia Supreme Court issued a ruling on a critical issue for Georgia’s state waters.  The court’s disappointing and narrow decision asserts only state waters with “wrested vegetation”—or clearly defined beds and banks—are entitled to protection from land disturbing activities by 25-foot vegetative buffers as set forth in the Erosion and Sedimentation Act (1975).  Please read the case summary (page 4) and final decision (and dissent).

The decision stems from a legal suit filed on behalf of Georgia River Network and American Rivers by Southern Environmental Law Center on August 3, 2012.  We challenged the Georgia Environmental Protection Division’s (EPD) issuance of a stream buffer variance to Grady County for construction of the Tired Creek fishing lake.  After multiple rounds in lower courts agreed with us, EPD and Grady County filed an appeal to the Georgia Supreme Court where the case was argued in January 2015.

We hoped the Supreme Court’s decision would correct a decades-long, inequitable and confusing EPD policy that historically protected some state waters, while not protecting others that lacked “wrested vegetation.” Protective buffers are easily measured along streams, creeks and rivers with clearly-defined banks, where moving water has undercut the adjacent land and visibly removed or prevented the growth of plant life due to the effects of fast-moving water.

However, these areas of “wrested vegetation” are not common to all waterways in Georgia. For instance, south Georgia’s slow moving and black water rivers do not generate enough velocity to ‘wrest’ vegetation.  Additionally, coastal marshes are influenced by tides that typically leaves vegetation intact.  For about a decade, an old state policy protected coastal marshes lacking wrested vegetation with a buffer, but other waters of the state that did not have wrested vegetation were left unprotected.  We wanted to see that inequitable and confusing policy corrected.

While a majority of the Georgia Supreme Court justices did not agree, we did win some protections in another branch of government.  And there is more work to be done.

Where Did This Court Case Come From?

In 2010, the U.S. Army Corps of Engineers agreed to allow Grady County, in southwest Georgia, to build a 960-acre public fishing lake on Tired Creek, despite substantial criticism from state, federal and other stakeholders. Construction on the lake, which began with timber clearing and an official “groundbreaking” in August 2013, will put Grady County taxpayers on the hook to pay for a $20,000,000 lake, and will alter downstream flows on the Ochlockonee River for property owners and communities in Grady County and Florida.

As of March 2015, the dam has been constructed.  But the project is now on hold because the county has failed to implement a Corps approved mitigation plan, a plan designed to off-set the environmental impacts of the lake’s construction.  The county cannot fill the lake until the plan is implemented.

In our 2012 legal challenge, we argued EPD failed to require Grady County to obtain buffer variances for impacts to over 100 acres of state waters lacking “wrested vegetation” on the site.

In the first round of litigation, an Administrative Law Court judge agreed with us that all state waters do not need to have “wrested vegetation” in order to receive buffer protections as defined in the Erosion and Sedimentation Act.

EPD and Grady County successfully appealed this decision in a second round of legal debate in superior courts.

In the third round, on July 16, 2014, the Court of Appeals of Georgia agreed with us: all state waters are legally protected by a 25-foot buffer.

EPD and Grady County eventually and successfully appealed this decision to the Georgia Supreme Court—the fourth, final and most recent round.  But there was another wrinkle in the process.

Earth Day Memo & SB 101

On April 22, 2014—which is also celebrated as Earth Day—Governor Nathan Deal’s appointed Director of EPD, Jud Turner, introduced a new level of confusion.  EPD’s Earth Day memo reversed the agency’s decade-long policy of requiring buffers on all tidal creeks and coastal marshlands.  The Director erased the 25-foot buffer between coastal uplands and coastal waters where “wrested vegetation” was not present.  Technically, buffer protections on the Georgia Coast eliminated by EPD’s April 22, 2014 action were reinstated by the July 16, 2014 court decision regarding Grady County’s buffer variance.

Georgia legislators were keenly aware of these agency and judicial turns as the General Assembly’s 2015 session commenced.  In anticipation of this week’s Supreme Court ruling, Senate Bill 101 was introduced to restore coastal marsh buffer protections that were lost on Earth Day 2014.  SB 101 passed both chambers and will establish a 25-foot buffer in the Erosion and Sedimentation Act to specifically protect only the coastal marsh from sediment pollution.

Governor Deal signed SB 101 in a notably unpublicized way for such a widely supported bill.  On May 3 he publically defended the state’s protection of gopher tortoises.  Three days later he quietly signed SB 101.  At the time, Georgia and South Carolina were trying to land a big fish: Swedish automaker Volvo’s first North American auto factory.  South Carolina ultimately set the hook, and the deal hinged on resolving environmental issues effecting the proposed factory sites.

Tomorrow (Thursday, June 18), EPD will launch a stakeholder process in Brunswick to revise rules and regulations associated with the Erosion and Sedimentation Act as required by SB 101.  You can find more information about the meeting and how to submit comments here; it’s free and you can register here.

The bottom line: SB 101 protects the coastal marsh while the Supreme Court decision leaves thousands of miles Georgia’s waters that flow to the coast without protections.

Closer

The science is sound and clear: buffers work.  Fresh water and saltwater buffers act like filters between land disturbing activity and the water we need to drink, fish in and swim in, that wildlife needs to live, or that boats need to float.  In general, the wider and less disturbed the buffer is, the more effective the buffer is for nature protection, pollution control, and wildlife conservation in fresh water and saltwater environments.

From the mountains to the coast and across south Georgia, and for upstream and downstream communities, buffers are critical for preserving the health of creeks, streams and rivers, as well as our marshes and other state waters from pollutant-contaminated runoff from disturbed land, roofs, driveways and roads.  Buffers are also the most cost-effective means to protect water quality and property values.

There are clear and established methods for measuring a buffer in the absence of wrested vegetation.  Georgia’s waters do not have to be brown or stained with red clay: they can flow clear again.

-Chris Manganiello

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2 Comments leave one →
  1. Wodamark permalink
    June 23, 2015 7:55 pm

    your statement:

    “…while the Supreme Court decision leaves thousands of miles Georgia’s waters that flow to the coast without protections.”

    is untrue

    The Supreme Court decision in the footnote on page 6 states:

    “The establishment of buffers for state waters alongside banks with wrested vegetation is only one of many tools or “best management practices,” available to accomplish the intent of the Erosion and Sedimentation Act as stated in OCGA § 12-7-2. See, e.g., OCGA §12-7-6 (a) (1); OCGA § 12-7-6 (b) (1)-(14). See also Manual for Erosion and Sediment Control in Georgia, Georgia Soil and Water Conservation Commission (6th Ed. 2014) (manual is specifically referenced by OCGA § 12-7-6 (b)).
    There is no basis for the courts to extrapolate the application of OCGA §12-7-6 (b) (15) (A) beyond its literal terms based on an incorrect assumption that state waters without wrested vegetation are left without “some level of protection” from land-disturbing activities because the establishment of a buffer is not required under one subsection of the Act.”

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