Court Rules that All State Waters Are Protected by Buffers

A state court ruled late yesterday in a case brought by conservation groups that all state waters, including wetlands, are protected under Georgia law by a 25 foot buffer, with the exception of trout streams and water supply reservoirs that receive larger buffers and ephemeral streams that receive no buffer.  The Southern Environmental Law Center filed the case on behalf of American Rivers and the Georgia River Network.

“This decision is a win for anyone who fishes, paddles, swims, or gets their drinking water from Georgia waters,” said Bill Sapp, senior attorney for the Southern Environmental Law Center who represented the groups in the hearing before the court.  “Since the Georgia General Assembly passed the buffer provision to keep Georgia waters from running orange every time it rains and protect downstream property owners and communities,  the state’s argument that some waters of the state deserve buffers while others don’t was nonsensical.”

The EPD now has a clear directive that all state waters must be protected by buffers.  Until this court decision, the Georgia Environmental Protection Division inconsistently applied the Erosion and Sedimentation Act’s buffer requirement to freshwater wetlands, and coastal streams and marshlands.

The case arose when the EPD failed to require Grady County to obtain a variance for impacting wetland buffers in its bid to build a 960-acre fishing lake on Tired Creek near Cairo, Georgia.  Although Georgia River Network and the Southern Environmental Law Center both notified the EPD of this oversight, the EPD declined to remedy the situation.  As a result, the groups filed an appeal with the Office of State Administrative Hearings to get the EPD to do its job.  In deciding the case, the court agreed that the EPD had not fulfilled its duty under the Erosion and Sedimentation Act and should have required Grady County to secure a buffer variance for the wetlands on the site, as well as the streams.

Under the law, a buffer is simply a strip of trees and plants along a stream or wetland that naturally filters out dirt and pollution from rain water runoff before it enters our rivers, streams, wetlands, and marshes.  Without buffers, Georgia waters are at risk of becoming clogged with mud and dirt.

“Protecting some Georgia waters with a buffer, while not protecting others, is like saying only some waterways are important while others are not worth protecting,”  said April Ingle, the executive director of the Georgia River Network.  “Georgia’s waters are all connected and we need buffers on all state waters to ensure downstream property owners, communities, fish, wildlife and clean drinking water are protected.”

Judge Kristin Miller, who decided the case, clearly agreed with the conservation groups when she found that the “Erosion and Sedimentation Act mandates a buffer for ‘all state waters.’”

As Jenny Hoffner from American Rivers explained: “Downstream property owners need to be protected from someone dumping dirt into waters upstream from them regardless of whether that  water is a stream or a wetland.  Now EPD must take action and require buffers on wetlands and streams alike to prevent development from polluting our waters and to keep our neighborhood streams from running orange when it rains.”

Speaking more broadly, Nate Hunt, a staff attorney at the Southern Environmental Law Center, commented,  “We think it’s important that EPD enforce environmental protection requirements, like the buffer provision. Georgia’s water resources, as well as property owners, need to be treated, and protected, consistently under the law.”