Georgia Supreme Court Resolves Buffer Dispute, Upholds EPD
Resolving a contentious dispute over the proper interpretation of one of Georgia’s key water protection statutes, the Georgia Supreme Court held today that Georgia’s stream buffer law does not apply to wetlands (particularly non-coastal wetlands) because they generally lack “wrested vegetation.” Siding with the state Environmental Protection Division (EPD), the Court rejected environmental advocacy groups’ arguments to construe the statute more broadly and overturned a Court of Appeals decision that had accepted those arguments. The decision should pave a clearer path, and increase the usable acreage for, a range of development projects in Georgia.
The Georgia River Network opinion addressed the proper interpretation of Georgia’s “stream buffer” law in a case concerning a proposed 960-acre fishing lake to be constructed by Grady County. EPD’s grant of a buffer variance was challenged due to the County’s failure to address buffers for wetlands that would be disturbed by the project.
By statute, certain best management practices are required for any land disturbing activities within three “buffer” zones. The buffer at issue in this litigation is defined as follows: “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…” Ga. Code Ann. § 12-7-6(b)(15)(A). The question of interpretation was whether state waters with no wrested vegetation, such as wetlands, qualify for a buffer.
Georgia EPD interpreted the statute to only apply to streams with wrested vegetation, and therefore, when Grady County applied for a variance for land disturbing activity near a steam, EPD did not make any provision for the wetlands that could also be disturbed. Georgia River Network challenged this interpretation, and the Georgia Court of Appeals invalidated it.
But the Georgia Supreme Court has now upheld EPD’s interpretation. First, the Court found significance in the statute’s sentence construction. Grammatically, the phrase “as measured horizontally…” forms part of the methodology for establishing the buffer. With no wrested vegetation, the agency would have no means of establishing a buffer, and therefore, one does not exist. Second, the court relied on the rules of statutory construction “expressio unius est exclusion alterius (expression of one thing implies exclusion of another) and expressum facit cessare tacitum (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).” If the statute mentions waters with wrested vegetation specifically, the implication is the legislature did not intend to include any other waters.
The two other statutory buffer zones appear unchanged by this decision. The first is a 50-foot buffer along trout streams. See Ga. Code Ann. § 12-7-6(b)(16) (“There is established a 50 foot buffer, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, along the banks of any state waters classified as ‘trout streams’…”). The second is a “25 foot buffer along coastal marshlands, as measured horizontally from the coastal marshland-upland interface.” See Ga. Code Ann. § 12-7-6(b)(17)(A). The latter provision was just signed into law on May 6, 2015, and will become effective December 31, 2015. Because this provision creates a clear buffer for coastal marshlands (with no “wrested vegetation” required), it appears to generally limit the reach of today’s decision to non-coastal circumstances.
See Turner v. Georgia River Network, et al., No. S14G1780 (Ga. June 15, 2015); Grady County Board of Commissioners v. Georgia River Network, et al., No. S14G1781 (Ga. June 15, 2015), available at https://efile.gasupreme.us/viewFiling?filingId=726b9ee1-1a6b-4ea9-94af-ad70e351338e