ATLANTA – The Georgia Supreme Court ruled Monday 6-1 that state law does not require a buffer against development around freshwater marshes, swamps and other bodies of water where the flow is not sufficient to wash away plants — so called “wrested vegetation.”
The decision overturns an earlier ruling by the Georgia Court of Appeals and supports a controversial interpretation by the Environmental Protection Division.
Monday’s decision doesn’t actually change EPD practices. Since 1989, the EPD hasn’t imposed no-building zones around freshwater marshes because the wording of state law says 25-foot buffers are to be measured from “wrested vegetation.” Where the water flow isn’t fast enough to uproot plants, there can’t be a buffer, the agency argues.
Environmentalists were long opposed. They believe buffers prevent rains from washing sediment, pesticides and pollution into streams.
It came to a head in a lawsuit by seeking to require temporary buffers during the construction of a 960-acre lake in Grady County.
Justice Robert Benham, writing for the 6-1 majority, said the court had to rely on the literal meaning of the law.
“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,” he wrote.
Environmental groups were quick to condemn the Supreme Court’s decision.
“This poor decision will impact the Altamaha watershed from Atlanta and Athens through Macon and to the Atlantic,” said Jen Hilburn, head of the Altamaha Riverkeeper advocacy. “Whether urban or rural, the decision will negatively impact property owners along all waterways–maybe not at first as they build all the way to the river, or plant non-native vegetation that has not evolved with the river, and cannot support the flood cycles–but sooner or later land owners that are unwilling to leave a buffer will likely be forced to endure the consequences of not having a protected buffer.”
The attorney for the Southern Environmental Law Center who filed the suit against Grady County, Bill Sapp, is evaluating the options, such as legislation that would measure the boundaries of wetlands the way the U.S. Army Corps of Engineers does through analysis of soils and their water content.
“That’s what we’re trying to figure out, what’s next,” he said.
EPD Director Jud Turner said he isn’t looking for more ways to protect wetlands.
“This ruling confirmed our interpretation of the statute and upheld the way we’ve been administering the program,” he said. “We do not have plans for legislation in this next session.”
Monday’s decision only applies to freshwater since the legislature passed a bill that the governor signed into law this year which specifically requires buffers around saltwater marshes.
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