The Supreme Court of Georgia issued a ruling yesterday that reverses an earlier administrative law judge’s (ALJ) ruling that, if allowed to stand, would have imposed a wholly unnecessary, cumulative and cumbersome new level of permitting that would have had a major impact on local economies, job growth, and economic investment in Georgia. 

Projects of all kinds would have been affected, including residential, commercial, and industrial development, as well as road, utility, and pipeline projects.  Because time is money in a competitive economy, the delays required to obtain a buffer variance could cause many projects to fail, or to be passed over from the outset.

At issue was interpretation of OCGA §12-7-6 (b) (15) (A) which states 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....”

Brief Case History

In 2010, Grady County received federal approval to construct a 960-acre fishing lake.  The project also entailed building a large dam and inundating 129 acres of wetlands and nine miles of streams to create the lake.  To proceed with the project, Grady County was required to apply for a buffer variance through the Environmental Protection Division (EPD) in order to disturb the stream waters that would be affected by the project.

The EPD Director issued a variance for this project that was subsequently challenged by two non-profit organizations: Georgia River Network and American Rivers.

These groups argued that Grady County’s application was deficient because it failed to address buffers for the wetlands that would also be affected by the project.  The EPD advised the groups that wetlands did not require buffers because they generally lack wrested vegetation and were not subject to a variance request.  The Fulton Superior Court rejected this appeal.

The groups sought review of the Fulton Superior Court’s decision from an administrative law judge (ALJ) in the Office of State Administrative Hearings.  The ALJ overturned the Fulton Superior Court’s decision.

Following the ALJ’s decision, the Georgia Chamber joined with the Council for Quality Growth, the Georgia Association of Water Professionals, the Georgia Forestry Association, the Georgia Industry Environmental Coalition, the Metro Atlanta Chamber, the North Georgia Water Resources Partnership, and the Regional Business Coalition of Metropolitan Atlanta in lodging an Amicus Brief with the Supreme Court of Georgia in support of the State’s challenge to the ALJ’s ruling.

In its ruling issued yesterday, the Supreme Court of Georgia stated that:

“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....”  Had the legislature placed a period after the word “waters” rather than a comma and had gone no further, then there would be no other conclusion but that buffers are established along the banks of all state waters, regardless of the existence of wrested vegetation.  But that is not what the legislature did.  By adding the phrase “as measured horizontally from the point where vegetation has been wrested,” the General Assembly expressly defined how the buffer “is established.”  Since the legislature offered no other method for the buffer to be established but for measuring it horizontally from the point of wrested vegetation, the buffer necessarily cannot be applied to state waters that are adjacent to banks without wrested vegetation.  No further interpretation or analysis is required.

The Court also stated that its plain reading of OCGA §12-7-6 (b) (15) (A) is in keeping with longstanding tenets of statutory construction:

“The courts cannot construe OCGA §12-7-6 (b) (15) (A) to force an outcome that the legislature did not expressly authorize.  “The doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced.  Under that doctrine, statutory construction belongs to the courts, legislation to the legislature.  We can not add a line to the law.”

The Georgia Chamber strongly supported this challenge to ensure that businesses and industries had protection from overly restrictive permitting imposts and to ensure that projects of significance to state, regional and local economies could be planned and implemented with the minimum delay and cost, in strict accordance with existing statutes that offer protection to the state’s valuable streams and rivers.