The Supreme Court of Georgia agreed to hear the Environmental Protection Division’s appeal in a case to determine wether state law requires a 25 foot buffer around all state waters regardless of whether “wrested vegetation” is present. The case stems from a lawsuit brought by the Georgia River Network and other conservation groups challenging the proposed contruction of a lake in Grady County in south Georgia that would submerge many freshwater marshes and wetlands.
Complicating matters is a memorandum issued by EPD Director Judson Turner on Earth Day of this year stripping buffer protection from saltwater marshes lacking wrested vegetation.
State law establishes “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,” with some specific exceptions.
An earlier EPD memorandum interpreted this statute as requiring a buffer on waters with sufficient flow to wrest vegetation and “thereby forming a defined channel.” The EPD then created a jurisdictional line based on the presence of certain marsh plants from which buffers protecting saltwater marshes were drawn. Mr. Turner’s new memorandum concluded that this methodology included areas lacking wrested vegetation and stripped those areas of buffer protection.
The Georgia Court of Appeals disagreed with Mr. Turner’s approach. The court, ruling in the Grady County case, found that the buffer requirement applied to all states waters regardless of the presence of wrested vegetation.
The court viewed the “wrested vegetation” language as more of a guide post for measurement rather than a necessary precondition and reasoned that applying buffer protection only where wrested vegetation is present would create a piecemeal system that would leave many waters throughout the state, beyond just saltwater marshes, unprotected. The court thought such an outcome would be inconsistent with the intent of the statute, which is meant to protect state waters.
The state has appealed this decision, and the Supreme Court will hear arguments in January.
Mr. Turner decided not to wait for the Supreme Court before he took action. Following the Court of Appeals’ ruling, he issued another memorandum announcing that EPD would essentially ignore this decision until the Supreme Court rules and urged local permitting authorities to do the same.