The Georgia Senate Likes Environmental Buffer Zones as Does the US Supreme Court

talulah gorge river streamproposed bill by Georgia state senator Steve Gooch aims to give local governments more control over land use regulation.  Senator Gooch introduced a bill last month that would allow local governments to submit plans to the Georgia Environmental Protection Divisions (EPD) regarding land use regulations and water quality.  Many Georgians, particularly those located in more rural areas, support the legislation because they feel the EPD currently has too much power and arbitrarily restricts development on private property.  This has been such a concern in the past that many have even declared the EPD’s actions to be a government taking of land requiring just compensation.

Buffer Zones

Buffer Zones

Currently the Department of Natural Resources (DNR), the department housing the EPD, is allowed to create state-wide rules dictating how far back development has to be from the edge of certain streams.  The land where no development can occur is called a buffer zone.  Currently the DNR requires a 150 foot buffer zone from streams that are located within 7 miles of a public drinking source.  There are no variances, but local governments may exempt existing land uses, mining activities, and utilities.  Senator Gooch’s proposed bill would nix the DNR’s ability to create a state-wide rule and would instead require local governments to create their own water management plans that may or may not take into account buffer zones.

Buffer Zone on Property

Buffer Zone on Property

The plans would have to be approved by the EPD, so ultimately the restrictions are dictated by the state agency, but at least local governments would have the opportunity to propose new standards.  The rationale for such buffer zones is that development within 150 feet of streams causes erosion and increases sedimentation in the water, which makes filtering the water for public consumption more onerous.  So the restriction is designed to provide drinking water without making cleaning and purification too difficult and costly.  However the restrictions on development can have a severe impact on many landowners, many of whom feel the restriction are generally good, but are somewhat arbitrary  applied.

One note to make on the proposed bill is that Senator Gooch’s original proposal stated local governments’ water management plans “may” take into account buffer zones and may promulgate any rules so long as they do not result in the contamination of water to the point in which it cannot be cleaned.  On the Senate floor the bill was amended to strengthen environmental protection by requiring local governments to create buffer zones.   The bill, as amended, passed the Senate on February 21.

Stream/River with Sediments

Stream/River with Sediments

It’s good to see that the Georgia Senate agrees that we need to be protecting our waterways by using buffer zones.  Limiting development along a stream bank clearly reduces erosion and sedimentation.  While the final Senate bill is pretty good in terms of environmental protection, Senator Gooch’s original bill provided protection only for something that should obviously be protected: clean drinking water.  His bill allowed the EPD to nix any proposed buffer zone that would restrict the ability to provide clean drinking water; it, however, ignored many of the other problems caused by polluting waterways.  Luckily the rest of the Senate caught that a general protection for clean drinking water is an obvious (if not implied) protection and does very little to protect the general health of streams.

Under Senator Gooch’s original proposal, a local government could create a restriction scheme that severally pollutes a stream, but if a public utility can clean it then it should be approved by the EPD regardless of how much money it costs to clean the water.  A public utility may have to spend millions more to produce clean water based on a restriction that allows more development along streams. Ultimately this cost gets passed onto the user and it hurts everyone.

Fly Fishers Rely on Healthy Streams

Fly Fishers Rely on Healthy Streams

In addition to the ultimate cost to everyone for access to clean drinking water, Senator Gooch’s bill doesn’t take into account any other uses of water.  Clean water is needed for many purposes other than drinking.  Swimmers, boaters, and fishers all want and need clean water. A bill that bases water quality solely on the ability for a utility to make it potable ignores all the other uses of water. Members of Georgia Trout Unlimited, clearly a huge voice for sportsmen, raised these exact concerns. The increased runoff of sediments and pollutants caused by local governments creating more development-friendly rules along steams will surely degrade local ecosystems and ruin fish and other wildlife populations.  This has severe implications for both environmentalists and sportsmen.

In 2005 legislation was introduced to declare the buffer zones regulatory takings, which would mean the government would have to pay those landowners the fair market value of the land located in the buffer zone.  The Fifth Amendment of the US Constitution protects citizens from the federal government taking their land without due process of the law while the Fourteenth Amendment protects citizens from state (or local) governments taking their land without due process of the law.  Unlike a per se taking where the government uses eminent domain to take legal title to your property, a regulatory taking occurs when a government creates a regulation that has the effect of depriving a property owners of some economically beneficially use of the property.

These Wires Could be a Taking!

These Wires Could be a Taking!

A combination of these two types of takings occurs when the government creates a regulation that requires the permanent physical occupation of private property regardless of the scope of the occupation.  In Loretto v. Teleprompter Manhattan CATV Corp, the US Supreme Court ruled that a regulation that required a property owner to allow television cables to pass through their property was a per se taking and government compensation was required.  This upholds the basic property rights principles of being able to exclude others from your property.  The Court determined that even minor physical possessions of private property violate basic property rights.

Another combination is when a regulation effectively denies a property owner of all economically beneficial use of their property.  In Lucas v. South Carolina Coastal Council, the US Supreme Court ruled that a water management act that prevented all construction on a particular piece of land amounted to a per se taking.  While this is still good law, more recent US Supreme Court cases have stated that it is almost impossible to deprive one of all economically beneficially uses of their property because land has inherent value.

Under a per se taking, the government condemns your property and pays you money.  Under a regulatory taking, in order for a property owner to get money from the government, s/he must bring an inverse condemnation action by challenging the government in court.

Lucas' Beachfront

Lucas’ Beachfront

The buffer zones do not involve the government either taking title to property or requiring a permanent physical occupation so no per se taking is present.  The buffer zones do, however, deprive property owners of the economic use of their land.  The current rules require a 150 foot buffer zone on each side of a stream that is within 7 miles of a public drinking source.  This likely does not encompass the entirety of most properties so a complete economic deprivation of property is likely not present.  This means that the Lucas case, which says a complete economic deprivation is a per se taking, likely is not applicable.

The Supreme Court has struggled to provide guidance into how to approach a situation like a regulation mandating buffer zones.  While the Georgia regulation doesn’t occupy property,  take title to property, or completely deprive one of the economic use of property, it still prevents development on a portion of property. In Lingle v. Chevron, U.S.A., the Court overruled prior precedent that declared any regulation that did not substantially advance a legitimate government interest to be a taking.  This was a relatively high burden on the government, though a buffer zone likely would qualify.  After abandoning this rule, the Court fully adopted the messy rules of another major takings case: Penn Central Transportation Co. v. New York City.

In Penn Central, the Court created a three-part test to determine if a regulation that partially deprives an owner of the economic use of his/her property amounts to a taking.  This is the test that would likely be applied to Georgia’s buffer zone regulation.  Under the ruling, a court will evaluate the economic impact on the property owner, the regulation’s interference with investment-backed expectations, and the character of the governmental action.  These factors are quite nebulous, which is good for lawyers, but bad for landowners and legislators.

Grand Central Terminal

Grand Central Terminal

Though the test is far from exact, It is likely that the buffer zones would not be considered regulatory takings under Penn Central.  In Penn Central, the claimant suffered a negative economic impact when a new regulation prevented it from building above Grand Central Terminal.  The Court said because the claimant could build elsewhere on his property, his economic harm wasn’t enough to exact a taking.  As for the nature of the government action, preventing buildings from being too tall serves a public purpose by allowing light to hit the street.  Similarly, even with Georgia’s buffer zones, property owners  can extract some economic use from their property (unless their entire property is within the buffer zone, which would be a Lucas taking) and the buffer zone regulation serves the public purpose of securing clean water.

Regarding the economic impact of the test, one important ongoing argument within the Court is how it is applied to the property. Some justices have said that we should divide the property; if a regulation completely deprives one piece of a property of all economic use then it constitutes a taking under Lucas.  However the majority in Penn Central indicated the property should be treated as one piece, so even if some part of the property remains economically viable, it isn’t a complete deprivation and Penn Central analysis is applied. 

The one argument that could be made by some property owners is that they had some investment-backed opportunity that was ruined by the buffer zone regulation.  If millions of dollars were spent on a construction project and the subsequent buffer zone regulation prevented the property owner from realizing the project then that would weigh heavily in the owner’s favor.

This is What We're Preserving: Amicalola Falls.

This is What We’re Preserving: Amicalola Falls.

All in all the buffer zone regulation passed by the Georgia Senate is pretty good.  It allows local governments to make their own rules, but requires them to take into account buffer zones and requires the DNR to approve the plans.  Since we are dealing with a resource that readily crosses county and city boundaries it is important for a state-wide agency to have some oversight so the resource is effectively and efficiently used by everyone in the state. Though the requirements may be a bit onerous and people may understandably be upset, they help preserve a vital resource that sustains life and provides aesthetic and recreational enjoyment.

Update, March 11 2014: Senate Bill 299 passed both the House and Senate with votes of 163 to 8 and 46 to 7, respectively.  It was passed as amended by the Senate committee and the House made no changes.

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