County gains backing of powerful groups in appeal

Some very big names in Georgia are supporting Grady County’s position in an appeal of the January ruling by an Administrative Court Judge requiring a 25-foot buffer zone for “state waters” including wetlands.
Never before have freshwater wetlands been considered by the courts as “state waters” so not only is Grady County fighting the ruling because of its impact on the county’s Tired Creek Lake project, but so are such organizations as The Council for Quality Growth, The Georgia Association of Water Professionals, the Georgia Chamber of Commerce, the Georgia Forestry Association, the Georgia Industry Environmental Coalition, the Metro Atlanta Chamber, the North Georgia Water Resources Partnership, and the Regional Business Coalition of Metropolitan Atlanta.
These groups joined together and have filed an Amicus brief in both Grady County Superior Court and Fulton County Superior Court.
Hearings on the appeal will be held in Grady County next Tuesday and in Fulton County on Wednesday.
The Georgia River Network and American Rivers, through the Southern Environmental Law Center, challenged the Environmental Protection Division of the Georgia Department of Natural Resources for not requiring Grady County to obtain a variance for impacting wetland buffers as part of the construction of the 960-acre Tired Creek Lake.
The environmental groups went to court in an attempt to force the EPD to require Grady County to obtain a buffer variance for the wetlands on the site as well as the streams impacted by the lake’s construction.
The environmental groups argue that without buffers, water is at risk of becoming “clogged with mud and dirt.”
Opponents of the Tired Creek Lake, which have lost a legal challenge to the federal 404 permit issued to Grady County by the U.S. Army Corps of Engineers at the district court and federal appeals court level, claim the EPD has “inconsistently applied the Erosion and Sedimentation Act’s buffer requirements to freshwater wetlands, coastal streams and marshlands.”
In January, Judge Kristin Miller with the Office of State Administrative Hearings ruled that Georgia’s Erosion and Sedimentation Act mandates a buffer for “all state waters” including wetlands.
In the Amicus brief filed in support of Grady County’s appeal, the friends of the court strongly disagree with Judge Miller’s ruling.
Supporters of the appeal write, “One provision of the Erosion and Sedimentation Act of 1975 creates a twenty-five foot buffer zone along the banks of all ‘State Waters,’ beginning at the point where ‘vegetation has been wrested by normal stream flow or wave action.’ The Administrative Law Judge erred by extending this statutory buffer to freshwater wetlands that lack a point of ‘wrested vegetation.’ this is clear legal error because wetlands are not ‘State Waters’ within the meaning of the E&S Act; and even if they were, the buffer requirement applies only to State Waters that have banks with a point ‘from which vegetation has been wrested by normal stream flow or wave action.’ In addition to being contrary to the letter and intent of the E&S Act, the holding of the Administrative Law Judge would have serious consequences that extend well beyond the specific permit at issue in this case.”
According to professional organizations, trade groups and chambers of commerce that have an interest in the economic well-being of the state as well as protection of wetlands, if Judge Miller’s ruling is affirmed it would “upend long-standing practices and understandings and establish an entirely new regime for wetlands protection under the guise of the Georgia Erosion and Sedimentation Act.”
The Amicus brief notes that Georgia, and most other states, has chosen to rely on the U.S. Army Corps of Engineers to regulate wetlands.
It is also noted for the record that consistent with Georgia’s decision to defer to the federal permit process under Section 404 to protect wetlands, the General Assembly has not established any separate program to regulate wetlands at the State level.
However, the General Assembly did adopt the Coastal Marshlands Protection Act in 1970 to protect coastal marshlands subject to regular inundation by the tide.
In the documents filed with the courts, the friends of the court state, “In sharp contrast to the Coastal Marshlands Protection Act’s specific protection of coastal marshlands, the E&S Act does not even acknowledge that wetlands exist. The term ‘wetland’ does not appear anywhere in the Act. It is clear, therefore, that the purpose of the E&S Act was not to protect wetlands per se, but instead to address myriad problems on both land and water caused by erosion and sedimentation.”
In addition to negatively impacting local economies, job growth and economic investment in the state, the groups supporting Grady County argue that the Administrative Law Judge’s ruling, if not reversed would have “devastating effect on the forestry and agricultural sectors, which are currently exempt from many requirements of the federal Clean Water Act but would not be exempt from the new buffer requirement.”
They go on to write, “And, while the Georgia River Network and American Rivers contend that wetlands ‘fall squarely within the catchall phrase other bodies of surface or subsurface water, the United States Supreme Court flatly disagrees. The U.S. Supreme Court has repeatedly recognized that wetlands cannot ‘naturally be characterized as ‘waters’ at all.'”
Grady County Attorney Kevin S. Cauley, who along with Ed Tolley of Athens, is representing the Grady County Board of Commissioners in this matter declined to comment on the filing of the Amicus brief.
“It would be inappropriate for me to comment on any of this right now with the action pending,” Cauley said.
Next Tuesday’s hearing in Grady County Superior Court falls on the same day as the next county commission meeting.
Commissioners next Tuesday are expected to qualify seven contracts interested in bidding on the construction of Tired Creek dam.
Under the best case scenario, construction equipment could be mobilized for work on the project by July.