Court: Court of Appeals of Georgia; July 16, 2014; Georgia; State Appellate Court
Appeals and cross-appeals arise from a petition by Georgia River Network and American Rivers challenging a buffer variance issued by the Director of the Environmental Protection Division (EPD) to the Grady County Board of Commissioners for a 960-acre fishing lake project. The variance allows the County to encroach on a mandated 25-foot vegetative buffer next to streams, as stipulated by the Erosion and Sedimentation Act. An Administrative Law Judge (ALJ) initially reversed the variance, citing insufficient consideration of wetland buffers. However, the Superior Courts of Fulton and Grady subsequently reversed the ALJ's decision, ruling that the ALJ lacked jurisdiction and misinterpreted buffer requirements. In their appeals, the River Groups contend the Superior Courts erred in these conclusions. Conversely, the Director and County cross-appeal, arguing the Grady Court wrongly stated there was "no obvious error" in the ALJ's standing determination. The court concluded the River Groups had standing to challenge the Director's order and that the buffer requirement applies more broadly than just to state waters with wrested vegetation. As a result, the judgments of the Superior Courts are reversed.
The legal framework emphasizes the Erosion and Sedimentation Act's intent to mitigate soil erosion and sediment pollution, mandating that land-disturbing activities comply with established best management practices, including a 25-foot buffer along state waters, unless a variance is granted that adequately protects natural resources.
"State waters" encompass all bodies of water, both natural and artificial, within the state's boundaries that are not fully contained on private property. On May 28, 2010, the U.S. Army Corps of Engineers issued a permit to the County under the Federal Clean Water Act for constructing a 960-acre fishing lake, which involves impounding Tired Creek via a dam that will destroy 129 acres of wetlands and over nine miles of streams. The County sought a buffer variance for this project, submitting a revised application on April 30, 2012. The River Groups opposed this variance, claiming it inadequately addressed impacts on wetland buffers, asserting that wetlands are "state waters" requiring protective buffers and mitigation.
On July 6, 2012, the variance was granted, despite the River Groups' objections. The EPD acknowledged wetlands as state waters but argued they typically do not require buffers due to a lack of "wrested vegetation." The River Groups petitioned for a hearing to invalidate the buffer variance, claiming it overlooked wetland impacts. The County intervened, asserting the River Groups lacked standing to challenge the variance under relevant statutes.
Cross-motions for summary determination were filed, and the ALJ denied the motions to dismiss, granted the River Groups' motion, and reversed the buffer variance, stating that all state waters, including wetlands, require buffers. The Director and County subsequently petitioned for judicial review in separate courts. The Fulton Court reversed the ALJ’s decision, ruling the River Groups failed to challenge an actionable order and lacked standing. The Grady Court concurred with the Fulton Court's conclusions but noted no error in the standing analysis. Discretionary appeals from the River Groups followed the Superior Courts' orders.
The excerpt addresses the issue of subject matter jurisdiction concerning the River Groups' challenge to a decision made by an Administrative Law Judge (ALJ) regarding a variance issued by the Director under the Erosion and Sedimentation Act. The River Groups argue that the Superior Courts erred in concluding that the ALJ lacked jurisdiction, asserting that their petition contested the Director's failure to act rather than an "order or action." The legal framework establishes that any person aggrieved by an order or action of the Director can petition for a hearing within 30 days. The ALJ determined that the petition indeed challenged a specific action—the issuance of a variance—claiming it was invalid due to the Director's failure to consider alleged wetland buffers. This challenge aligns with precedent in similar environmental cases, where permits were invalidated based on claims of inadequate regulatory consideration. The Superior Courts incorrectly interpreted the River Groups' petition as a challenge to the Director's inaction, neglecting the requirement for the variance application to address buffer impacts. The County had even acknowledged that the Director demanded revisions to the application regarding buffer impacts. Ultimately, regardless of the merits, the petition properly invoked the ALJ's jurisdiction to review the Director's actions.
The River Groups contest the Fulton Court's ruling that they lack standing, asserting their members are aggrieved under OCGA § 12-2-2 (c)(2)(A). In contrast, the Director and County argue the Grady Court erred by not reversing the ALJ’s finding that the River Groups have standing. According to OCGA § 12-2-2 (c)(3)(A), individuals are deemed "aggrieved or adversely affected" if the challenged action causes them actual injury related to the interests the Director regulates. The analysis of the River Groups’ standing draws on United States Supreme Court standards for Article III standing, which require a showing of an injury that is concrete and particularized, traceable to the defendant's action, and likely redressable by a favorable ruling. An association can sue on behalf of its members if the members would have standing individually, the interests align with the organization's purpose, and individual member participation is not necessary for the claim or relief sought. Environmental plaintiffs can demonstrate injury by asserting their use of the affected area and the diminished aesthetic and recreational value due to the challenged activity. The key issue is whether the River Groups can demonstrate that their members' injuries are traceable to the buffer variance and can be remedied through this action. The Director has requested that the ALJ determine standing, emphasizing the need for an evidentiary hearing as stipulated by OCGA § 12-2-2 (c)(3)(A). The statute requires the petitioner to present evidence on standing, and during oral arguments, the Director's counsel claimed the River Groups did not provide sufficient evidence to establish causation for their standing motion.
The River Groups submitted affidavits from two members living near the proposed lake, asserting their standing based on potential negative impacts from a buffer variance. The Director and County did not contest the affidavits' truthfulness. One affiant described her enjoyment of local waterways and concerns that the variance would diminish their recreational value, while the other expressed fears regarding water quality and harm to wildlife. To establish standing, the River Groups must demonstrate that their injuries are directly linked to the defendants' actions rather than independent third-party actions. It is acknowledged that the Erosion and Sedimentation Act prevents disturbing required buffers and that the lake project hinges on obtaining both a Section 404 permit and the buffer variance. Even if the Section 404 permit contributes to the alleged harm, the injuries are traceable to the buffer variance. The Fulton Court found that the River Groups could not prove their injuries stemmed solely from the buffer variance, referencing OCGA § 12-7-6 (b)(15)(C)(i), which outlines criteria for granting variances, including the requirement for a detailed application and consideration of various factors by the Director. A variance is not guaranteed even with a Section 404 permit in place.
Disagreement is expressed regarding the Fulton Court's view that the permanent loss of wetland buffers due to flooding is inconsequential, as the wetlands protected by these buffers will be destroyed. The County was obligated to seek a buffer variance due to the permanent loss of streams and buffers at the lake site, indicating that such loss is significant under the Erosion and Sedimentation Act. The argument that the River Groups cannot demonstrate redressability is dismissed, as reliance on a previous decision in Turner is deemed irrelevant; in that case, the environmental group's request for relief would not have remedied its injuries. Here, seeking to reverse or invalidate the variance does not interfere with the Director’s enforcement authority and an Administrative Law Judge (ALJ) can reverse a decision if it does not comply with the Erosion and Sedimentation Act. The River Groups assert that the Superior Courts incorrectly interpreted the statute regarding buffer requirements, limiting them to areas with wrested vegetation. It is affirmed that the statute mandates a 25-foot buffer along all state waters, defined broadly to include various bodies of water, and the Superior Courts' interpretation is deemed erroneous.
The definition of "state waters" is limited for the 25-foot buffer requirement under OCGA § 12-7-6 (b)(15)(A) by six statutory exceptions, none of which apply in this case. One exception pertains to ephemeral streams, where a buffer is deemed inappropriate. Two others allow the Director to grant variances. The statute specifies that the buffer is measured from the point where vegetation has been "wrested" by natural forces, raising the question of whether this creates an additional exception. The ruling clarifies that it does not; instead, it merely defines the buffer's location along the bank or margin of watercourses. Interpreting this measurement language as a seventh exception would imply no buffer is necessary along banks without continuous lines of wrested vegetation, contradicting legislative intent and creating inconsistencies within the statute. The 1994 amendment changed the buffer measurement from "stream banks" to "wrested vegetation," and the General Assembly did not explicitly exclude waters lacking wrested vegetation from the buffer requirement. The legislative intent aims to enhance erosion and sediment control and protect natural resources, with changes made to broaden regulatory scope to include various water types beyond flowing streams.
The Superior Courts misinterpreted the statute, contradicting the General Assembly’s intent, leading to the reversal of judgments. Judges Barnes, Doyle, and Boggs concurred, while Judges Andrews, Ray, and Branch dissented. The regulation mandates that variance applications must contain a site map showing all state waters, wetlands, floodplain boundaries, and natural features as identified by field surveys, a project description detailing buffer disturbance, including its duration and justification, and calculations of total buffer disturbance area and length. The Director, when reviewing applications, must consider the location and extent of buffer intrusion. The court disagreed with the Director's requirement for petitioners to prove standing with "undisputed credible evidence," emphasizing that factual determinations should be based on the preponderance of evidence. The parties accepted the Administrative Law Judge's decision on standing based on member affidavits, waiving any errors related to the lack of an evidentiary hearing. While it is acknowledged that wetlands are classified as “state waters” under the Erosion and Sedimentation Act, a dispute exists, highlighted by an amicus brief, regarding this classification, which remains unresolved. A 25-foot buffer is established along state waters, with exceptions allowed by the Director for certain conditions, including construction of drainage structures and shoreline stabilization. These buffer requirements remain unless a variance is granted by the Director.
