Another judge rules in county’s favor
Grady County scored another legal victory for the Tired Creek Lake project Tuesday based on the ruling of Georgia Senior Judge O. Wayne Ellerbee.
Ellerbee heard arguments this week in Grady Superior Court on an appeal by Grady County of a January ruling by an Administrative Court Judge requiring a 25-foot buffer for all “state waters” including wetlands.
Never before have freshwater wetlands been considered by the courts as “state waters” according to lawyers representing Grady County as well as the Georgia Attorney General’s office.
In the proceedings Tuesday Grady County was represented by Edward Tolley of Athens and County Attorney Kevin S. Cauley. Georgia Environmental Protection Division Director Judson H. Turner, who joined as a party to the appeal was represented by Georgia Assistant Attorney General James Coots.
Georgia River Network and American Rivers, two environmental groups battling to stop the construction of the 960-acre Tired Creek Lake, are being represented by Southern Environmental Law Center Senior Attorney Bill Sapp and Staff Attorney Nathaniel H. Hunt.
After hearing arguments from all parties Judge Ellerbee ruled to reverse the findings of Judge Kristin Miller who ruled that Georgia’s Erosion and Sedimentation Act mandates a buffer for “all state waters” including wetlands.
In his ruling Tuesday, Judge Ellerbee granted Grady County’s motion for summary determination, which upholds the stream bank buffer variance approved by the Georgia EPD for the Tired Creek Project.
The judge reversed the issuance of a motion of summary determination granted to Georgia River Network and American Rivers by Judge Miller in January, which overruled the EPD issued buffer variance.
Although Grady County and the state argued the two environmental groups did not have standing and the Administrative Law Judge did not have jurisdiction, Judge Ellerbee ruled in favor of Georgia River Network and American Rivers standing and the court’s jurisdiction.
Grady County was not without support for the appeal won Tuesday.
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 joined together and filed an Amicus brief in both Grady County Superior Court and Fulton County Superior Court.
The same arguments will be held today, May 8, in Fulton County Superior Court before Judge Jerry W. Baxter.
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, who 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.”
On Tuesday Tolley and Coots argued the Administrative Law Judge erred in determing wetlands are 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.
Sapp and Hunt claimed that measuring by the point from which vegetation has been wrested by normal stream flow or wave action is but one way of many to measure under the state code.
Sapp said measuring the slop of the upland to the point where over 51 percent of the plants are wetland plants is another measure that could be used in this case.
Judge Ellerbee questioned the need to protect wetlands that would be flooded and replaced through the mitigation plan required in the county’s 404 federal permit.
At one point the judge asked in the end what was it the Georgia River Network and American Rivers hoped to accomplish.
“Do you want them to have to start all over?” the judge said
Hunt said the goal was to require all requirements of the Erosion and Sedimentation Act to be followed.
At one point in the proceedings Tuesday Sapp said if the county did that and then constructed the lake “we would not go after them.”
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 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.”
Prior to the hearing Tuesday afternoon, the Grady County Board of Commissioners accepted bids for fencing of mitigation sites, mitigation construction work and approved putting the Tired Creek Lake dam out for bid with bids due June 14.
Under the best case scenario, construction equipment could be mobilized for work on the project by July.