"wrest" in Peace: the Effect of the Georgia Environmental Protection Division's "wrested Vegetation Rule" on Coastal Salt Marshes
| Publication year | 2016 |
"Wrest" in Peace: The Effect of the Georgia Environmental Protection Division's "Wrested Vegetation Rule" on Coastal Salt Marshes
Luke Donohue
Georgia State University College of Law, lukedonohue@gmail.com
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Oh, what is abroad in the marsh and the terminal sea?
Somehow my soul seems suddenly free
From the weighing of fate and the sad discussion of sin,
By the length and the breadth and the sweep of the marshes of Glynn.
Sidney Lanier, 18791
On Earth Day 2014, Jud Turner, the Director of Georgia's Environmental Protection Division (EPD) made a seemingly innocuous announcement: The EPD would interpret the Erosion and Sedimentation Act (E&S Act) according to its literal, plain meaning. In a now-infamous memo, Turner clarified the agency's "new" interpretation.2 Specifically, the April 22, 2014 Memorandum (Earth Day Memo) interprets a key provision of the E&S Act explaining
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how the EPD determines where "buffers" exist along the banks of state waters.3 According to the E&S Act, "[t]here is established a [twenty-five-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 . . . "4 Within this buffer, land cannot be developed, destroyed, or otherwise disturbed without first obtaining a permit from the EPD.5
According to the Earth Day Memo's interpretation, the E&S Act requires a buffer only where two elements are present: (1) a bank to waters of the state, and (2) wrested vegetation.6 The latter element proved to be controversial. 7 Unequivocally, Turner stated "[i]f
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wrested vegetation is not present, there is no buffer . . . ."8 According to Turner, this interpretation is consistent with the literal meaning of the text.9 The statutory language of the E&S Act applies a buffer to all state waters,10 and the two-element buffer rule works well for many of these waters. After all, most state waters have clearly defined banks and some sort of vegetation.11 For such waters, the "wrested vegetation" rule promulgated by the Earth Day Memo brought no significant change in procedure.12 For coastal marshes, however, a myriad of complications arose.13
Determining where buffers exist along coastal marshes according to the Earth Day Memo's new "wrested vegetation" rule was problematic. In fact, in many areas, coastal marshlands may lack wresting.14 Prior to the Earth Day Memo's wrested vegetation rule, local issuing authorities used a different test for establishing buffers along coastal marshes.15 If the EPD were to only allow buffers where wrested vegetation was present, then coastal marshland would lose invaluable state protection—potentially opening the door to
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development immediately encroaching onto coastal shores.16 Coastal marshes, in other words, would lose invaluable state protection.
The EPD's announcement that it would interpret an Act consistent with its literal meaning—seemingly an ordinary announcement of the obvious—triggered an extraordinary response. Director Turner's announcement set in motion a lengthy, complex effort to restore the buffers along coastal marshes: a battle of the buffers.17 This effort encompassed all three branches of Georgia's government, environmental groups, lobbyists, and concerned citizens alike.18 The rule sparked litigation, multiple appeals, public outcry, and, eventually, legislation.19 The battle of the buffers showed a resilient effort to save Georgia's precious coastal marshes from destruction. This effort illuminated the ability of lawyers, judges, legislators, lobbyists, environmentalists, and citizens to come together, advocate for marsh protection, and accomplish something extraordinary.
Part I of this Note analyzes the E&S Act, including its syntax, structure, and past interpretations, and examines whether the wrested vegetation rule is the proper interpretation of the statute.20 Part II analyzes the practical effects that the wrested vegetation rule would had have on coastal marshes and other state waters with no wrested vegetation, establishing the indisputable importance of restoring the buffers.21 Part III provides a timeline showing how the battle to restore the buffers progressed from the courts to the legislature, and how the buffers were eventually restored.22
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The Georgia coastline spans 110 miles from the Savannah River on the north to St. Mary's River on the South.23 The marshes along this coastline represent approximately one-third of the remaining salt marsh habitat on the East Coast of the United States.24 These marshes are an invaluable resource. Coastal marshland covers 35.3% of Georgia's maritime eco-region, "a 1,295-square-mile area include[ing] the coastal barrier islands, salt marshes, and estuaries, as well as mainland environments within the zone of tidal influence."25 Further proving the marshland's extraordinary importance, approximately 21% of this maritime region is protected by either state or federal statutes and agencies.26
The Georgia Legislature has continually acknowledged the importance of protecting and conserving Georgia's coastal marshes. In 1970, Georgia passed the Coastal Marshland Protection Act (CMPA) to limit the direct impact of development and degradation to coastal marshes. 27 In 1975, Georgia passed the Erosion and Sedimentation Act (E&S Act) to further protect state waters from harmful erosion and construction sedimentary runoff.28 In 1997, Georgia passed the Georgia Coastal Management Act to grant Georgia's Department of Natural Resources the procedural tools needed to "ensure that the values and functions of coastal waters and
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natural habitats are not impaired."29 These statutes are but a few indicators that the Georgia Legislature considers coastal marshes an invaluable resource deserving of state protection.
Of course, many of these laws apply not only to coastal marshes but to all other state waters.30 One such law is the E&S Act.31 Originally passed to mitigate erosion risks caused by construction, the E&S Act, as passed in 1975, made no mention of buffers whatsoever.32 The "buffer" language was added to the statute in 1989.33 The 1989 version of the Act provided, "[a]n undisturbed natural vegetative buffer of 25 feet measured from the stream banks shall normally be retained adjacent to any state waters except where otherwise required by [this title]."34 This "stream banks" language seemingly implies that buffers were only applicable to streams, despite the term "state waters"35 appearing in the paragraph as well. The 1989 version, however, neither defines the term "buffer" nor provides any guidance as to how or where to measure them.36 As a result, the EPD sought clarification on exactly where and for what types of state waters these buffers existed.
In a 1993 official opinion directed to the EPD, the Office of the Attorney General of Georgia clarified the confusion.37 The opinion determined whether the use of the term "stream banks" in the E&S Act limited the buffer requirement to bodies of flowing water, which would exclude coastal marshes.38 The opinion stated that the term "stream banks" merely directed where the measurement of the buffer began.39 The opinion further clarified "that the 25 foot undisturbed
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natural vegetative buffer referenced in [the E&S Act] is normally to be retained adjacent to any state waters, including . . . coastal marshes."40
Were this the end of buffer legislation, the rule regarding coastal marshes would be quite simple: coastal marshes, falling under the category of "any state waters," would clearly be entitled to a twenty-five foot buffer. The E&S Act, however, was amended again in 1994, and the term "wrested vegetation" made its way into the statute via this amendment.41 The E&S Act, as amended in 1994, established a twenty-five foot buffer along the "banks of any state waters, as measured from the point where vegetation has been wrested by normal stream flow or wave action . . . ."42 The primary conflict between supporters and detractors of the EPD's wrested vegetation rule lies in the conflicting interpretations of the above quoted portion of the E&S Act.
The first interpretation issue of the text arose in 2004, after the E&S Act was again amended.43 This amendment led to questions about the buffer's application, and then-EPD Director Carol Couch attempted to resolve in two somewhat contradictory directives.44 The first memo, on June 14, 2004, stated—consistent with the Earth Day Memo—that buffers were only required along state waters with sufficient water flow to wrest vegetation and form a defined channel.45 The second memo (Couch Memo), issued on July 8, 2004,
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stated—contradictory to the Earth Day Memo but ten years before its promulgation—that the wrested vegetation requirement did not apply to saltwater marshes. 46 The Couch Memo then promulgated a different process specifically for saltwater marshes, explaining that "[t]he boundaries of the saltwater marsh are determined by the Coastal Resources Division of the Department of Natural Resources (CRD) pursuant to the Coastal Marshland Protection Act and DNR Rules."47
Rather than identifying wrested vegetation, the Couch Memo relied upon the CRD's marsh jurisdiction lines, 48 which were determined to exist at the confluence of the upland and where one of fourteen marsh plants or marsh peat deposits were present. 49 Unfortunately, the Couch Memo did not cite to or otherwise identify-any statutory support for this protocol.50 Until the Earth Day Memo, buffer variances for coastal marsh from the EPD were issued according to the Couch Memo's unofficial interpretation of the E&S Act, and the twenty-five-foot buffers were measured starting at the
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CRD marsh...
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