For many environmental organizations in Georgia, Earth Day will never be the same.
On April 22nd of this year we celebrated Earth Day, a day traditionally set aside to appreciate our world and protect our environment.
Also on Earth Day this year, Jud Turner, Director of the Environmental Protection Division (EPD) of Georgia, announced a new policy that the Department would be implementing to decide how buffers will be determined along the coastal marshlands.
The new policy announced by Turner deals with buffers along saltwater marshes and where they are measured from.
Buffers along state waters was first addressed by the state legislature in 1975 when the Erosion and Sedimentation Act (E&S Act) was passed.
The E&S Act called for 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.
In interpreting the E&S Act, EPD had determined that two elements must be present to establish a buffer- a bank to waters of the state and wrested vegetation. Unfortunately, neither of these are defined in the E&S Act.
Webster’s Dictionary defines “banks” as “the rising ground bordering a lake, river, or sea forming the edge of a cut or hallow or as the slope of land adjoining a body of water,” and “wrested” as “to pull, force or move by violent wringing or twisting movements.”
The question of buffers along tidal creeks in Coastal Georgia is easily determined since they run both adjacent to uplands and throughout the saltwater marsh, almost always meeting the requirements of a bank to state waters and wrested vegetation.
Determining whether there are buffers along saltwater marshes is a much more difficult exercise.
After struggling through the process for many years, in 2004 then EPD Director Carol Couch issued a memo clarifying that buffers surrounding coastal marshlands would be measured from the jurisdictional line and not the point of wrested vegetation.
Jurisdictional lines were established by the Coastal Marshlands Protection Act (CMPA), created in 1970 to protect the marsh areas of our state.
While this did bring some clarity to the process, CMPA is administered by the Coastal Resources Division of the Department of Natural Resources and therefore they would set the jurisdictional line, meaning that yet another agency besides EPD would now be involved in the buffer process.
This is where the new policy issued by current EPD Director Turner came into play. Citing numerous examples of the 2004 guidelines causing controversy, including pending buffer cases in Grady County involving a 960 acre fishing lake and Chatham County involving pending improvements to the Turner Creek boat ramp, Director Turner reversed the 2004 guidance and determined that buffers along saltwater marshes will be measured from the point of wrested vegetation and not jurisdictional lines.
This ruling upset many environmental organizations, since where there is no evidence of “wrested” vegetation present- which is the case in many marshland areas- no buffer will be required.
And, although two Superior Court rulings upholding the new policy adopted by EPD has been reversed by the Georgia Court of Appeals, Director Turner has instructed the EPD staff to continue to adhere to his April 22ndguidance in making buffer determinations since the state is appealing the ruling.
So where do we go from here?
First of all, many local governments have passed ordinances restoring the 25 foot marsh buffer, essentially negating the new EPD guidelines.
Secondly, the Georgia Supreme Court could decide to hear the case and make a final decision on the current rules and regulations.
Thirdly, and perhaps most appropriately, the state legislature can address the situation during the next session and bring consistency and clarification to what at least one legislator describes as “a fine mess.”
Fortunately, the Coastal Georgia delegation, a bi-partisan group of state legislators who represent the Coastal areas of our state, has indicated that they will be working on comprehensive legislation to be presented next session.
Everyone agrees we must protect our delicate marshlands while maintaining personal property rights. Having our elected citizen legislature clean up this “fine mess” will help do that.