Georgia River Network v. Turner
328 Ga. App. 381
| Ga. Ct. App. | 2014Background
- Georgia River Network and American Rivers ("River Groups") challenged a buffer variance the EPD Director granted to Grady County allowing encroachment on the 25-foot vegetative buffer for construction of a 960-acre lake and dam that would inundate streams and wetlands.
- County obtained a federal Section 404 permit from the Army Corps of Engineers; County also sought a state buffer variance from EPD. EPD granted the variance after the County’s application did not address wetland buffers.
- River Groups petitioned for an administrative hearing arguing the variance was invalid because it failed to account for buffers adjacent to wetlands (which they contend are "state waters").
- An ALJ denied motions to dismiss, found the River Groups had standing, and reversed the variance on the ground the statute requires buffers for all state waters, including wetlands. The Superior Courts (Fulton and Grady) reversed the ALJ on jurisdiction/standing and held the buffer applies only where vegetation has been "wrested" by stream flow/wave action.
- On appeal this Court held: the River Groups challenged an "order or action" (the variance), they had standing based on member affidavits, and the statutory 25-foot buffer applies to "all state waters" and the "wrested vegetation" phrase governs measurement, not a separate exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition challenged an "order or action" of the Director | River Groups: variance issuance is an action and can be challenged because application and Director’s decision failed to address wetland buffers | Director/County: River Groups challenged inaction; Director had no duty to consider buffers not claimed in application | Held: Petition challenged a specific "action" (issuance of variance); ALJ had jurisdiction |
| Standing under OCGA § 12-2-2(c)(2)(A) | River Groups: member affidavits show recreational/aesthetic injury traceable to variance | Director/County: injuries speculative and attributable to federal permit, not state variance; lack of redressability | Held: Affidavits sufficient; injuries fairly traceable to state variance; redressable by invalidating variance |
| Scope of 25-foot buffer (whether "wrested vegetation" is an additional exception) | River Groups: statute creates buffer for "all state waters"; "wrested vegetation" indicates where/how to measure, not a carve-out | Director/County: buffer exists only where vegetation has been wrested; absence of such vegetation means no buffer | Held: "Wrested vegetation" prescribes measurement point; it is not a seventh exception—buffer applies to all state waters unless an enumerated exception applies |
| Whether ALJ could reverse variance/remedy requested is barred by agency discretion | River Groups: ALJ can invalidate variance if it doesn’t comply with statute/regulations | Defendants: relief would improperly intrude on agency/federal permitting discretion | Held: ALJ may reverse Director’s variance decision if inconsistent with statutory/regulatory requirements; redress not barred here |
Key Cases Cited
- Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499 (discussing de novo review of superior court appellate review of ALJ decisions)
- Longleaf Energy Assoc., LLC v. Friends of the Chattahoochee, 298 Ga. App. 753 (permit challenge based on alleged incomplete regulatory consideration)
- Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518 (addressing permit validity claims tied to regulator's scope of review)
- Center for a Sustainable Coast v. Turner, 324 Ga. App. 762 (standing and redressability in environmental permit context)
- Friends of the Earth v. Laidlaw Environmental Services (TOC), 528 U.S. 167 (Article III standing principles for environmental plaintiffs)
- Bennett v. Spear, 520 U.S. 154 (causation/traceability for administrative challenges)
- Mattaponi Indian Tribe v. Commonwealth, Dept. of Environmental Quality, 261 Va. 366 (state permit challenge where federal permit also issued; state permit may independently cause injury)