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Georgia Buffers on Wetlands?!

To make a long story short, on January 14th, a courts decision involving the construction of Tired Creek Reservoir in South Georgia over ruled the Georgia Environmental Protection Division (GAEPD) assertion that buffers do not apply to wetlands.  

Whether you're an advocate for buffers along State Waters or not, you have to admit it's very surprising to learn wetlands have been determined by a Judge to be state waters that require buffers.

BACKGROUND

The GAEPD has gone to a lot of trouble over the years in their effort to guide ES&PC Plan designers, construction professionals, and municipalities, also known as Local Issuing Authorities (LIAs), to properly comply with State Waters and Buffer regulations.

The term "state waters" is defined in Section 12-7-3(16) of the Georgia Erosion and Sedimentation Act (Act) as "Any and all rivers streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the State which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation."   

The determination of whether a buffer is required for state waters has been based solely on whether there is sufficient water flow to "wrest" the vegetation from the banks of the stream, thereby forming a defined channel. This is clearly not the case for wetlands.  

While "State Waters" and "Waters of the US" are often the same, permitting associated with the dredging and/or filling of wetlands is responsibility of the Army Corp of Engineers, although it seems now, that state permits (variances) for buffer infringement of wetlands will be up to Georgia.   It's important to note that the Georgia Erosion and Sedimentation Act (GESA) has addressed Salt Marshes for years as requiring Buffers, even though they have no area of wrested vegetation!  Instead, the area to measure a salt water marsh buffer is identified as the "Marsh Jurisdictional Line", of which the Georgia Department of Natural Resources, Coastal Resources Division is the agency that determines the line.  

CLICK HERE (or on a photo ) FOR THE JUDGES DECISION