State water could soon get quite murky thanks to a new ruling by the Georgia Supreme Court. Several month ago we highlighted Turner v. Georgia River Network as a case to watch since a decision for either side will have a significant affect on land use, environmental, and development issues in the state. The following scourge of a sentence in the Georgia Erosion and Sedimentation Act (“Act”) is to thank: “[t]here is established a 25 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, except…”
The sentence seems straightforward enough: there is a mandated 25 foot buffer along all state waters and you measure it based on the wrested vegetation. But what if there is no wrested vegetation? Does that mean the 25 foot buffer rule doesn’t apply? That is precisely the interpretation used by the Georgia Environmental Protection Divison (“EPD”) when it issued a permit to the Grady County Board of Commissioners (and others) back in 2012 that allowed for development within 25 feet of state waters. The Georgia River Network stepped in and sued the EPD for improperly issuing the permit under the belief that the sentence mandates a 25 foot buffer regardless of whether wrested vegetation exists.
Last year the Georgia Court of Appeals ruled in favor of the Georgia River Network finding that the sentence was ambiguous and the EPD’s reading couldn’t possibly have been what the Georgia Legislature intended when it drafted the particular sentence in the Act. The Court of Appeals stated that if the EPD’s understanding of the sentence were to be followed it would result in absurd situations where the buffer rule applies sporadically every few feet based on the existence of wrested vegetation. This would seemingly undermine the goal of protecting state waters from erosion and sedimentation.
Well yesterday the Georgia Supreme Court weighed in on the issue and found in favor of the EPD. The Court felt that since the legislature wrote a means of measuring the buffer when wrested vegetation is present, but not when wrested vegetation is absent, it necessarily meant to exclude the buffer rule in the absence of wrested vegetation. This idea is a major tenant of contract law and statutory drafting. The Court then went one step further and sought to legitimate this by asking whether that literal reading of the statute would result in absurd situations that couldn’t possibly have been the intent of the legislature.
In statutory construction cases such as this, if reading the words literally wouldn’t produce a result that is so contradictory or absurd as to call into question the intent of the legislature then the words should be read literally. While the Court of Appeals found the literal reading of the words to produce absurd results that couldn’t possibly further the intent of the legislature, the Supreme Court failed to find such absurdity.
The distinction lies in the fact that the Court of Appeals found the primary purpose of the statute to be the protection of water while the Supreme Court found the primary purpose to be the protection of natural vegetation (both cite language that supports their justification). The sporadic application of the buffer rule isn’t so absurd if the legislature’s only purpose was to protect the destruction of natural vegetation. If this was the sole goal of the Act, and not to protect the water, then a literal reading of the sentence furthers the intent and the EPD is justified in reading it in such a manner.
Dissenting Justice Melton (the only dissenting justice) made an admirable appeal in support of a mandatory buffer despite the lack of wrested vegetation by stating that it would be ridiculous to enact a regulation to protect vegetation for the ultimate purpose of protecting water quality if no buffer is required at all when vegetation isn’t present. A large buffer is even more important when no natural sedimentation and erosion controls like natural vegetation exist. A system that could theoretically allow development right up against the water every few feet does very little to protect water quality.
Though this may be sound reasoning and wise policy if the purpose is to protect water, it doesn’t necessarily mean the Georgia Legislature had this in mind. The role of the court in statutory interpretation cases is to further the intent of the legislature. It’s quite possible, and the majority of the Court would have you believe it, that the legislature only intended to protect natural vegetation with the mandatory buffer and had other regulations in mind to deal with sedimentation and erosion issues when no natural vegetation exists.
Justice Melton made an equally compelling argument by taking a closer look at administrative law principles. When ambiguities in a statute arise, an administrative body such as the EPD is given some degree of deference in interpreting the statute. Any interpretation must generally be reasonable, consistent with prior interpretations and must not be arbitrary. Courts analyze statutes in this capacity frequently and this is often at issue when the US Supreme Court analyzes the decisions of the US Environmental Protection Agency or any agency for that matter (the EPA cases just seem to be much more controversial).
Having already dismissed the reasonableness of the EPD’s interpretation as being contrary to the intent of the legislature, Justice Melton made the case that this interpretation of the Act is arbitrary by looking at the buffer rule Georgia has for “trout streams.” That rule calls for 50 foot buffers along “trout streams” and contains similar language referring to measurements being made from the point of vegetation. Justice Melton believes that applying the EPD’s interpretation in this case to the “trout streams” buffer rule would completely undermine the point of the “trout steams” rule, which is to protect trout. If the EPD’s interpretation in this case is applied to the “trout streams” rule then trout only get protection if vegetation exists along the water. This clearly wouldn’t make any sense, but that’s how it would have to be interpreted if the EPD’s interpretation in this case is allowed to stand. One of the two has to be arbitrary and since the EPD continues to apply a strict 50 foot buffer along “trout streams” regardless of whether vegetation exists, this decision must be arbitrary.
Ultimately this a great lesson in why it’s important to write good statutes. The system is designed so that courts do as little lawmaking as possible, leaving that job to elected officials. Despite the dissent’s sound policy and reasoning, the majority probably got it right in this case. There is competing language in the Act that allows one to come to competing conclusions regarding legislative intent. It is plausible that the legislature literally intended to only protect natural vegetation and had no intention of using this act to protect water. That seems incredibly unlikely based on common sense, but when a statute is written this poorly it allows one to wonder. In the end the Georgia Supreme Court instructed the Georgia Legislature to change the wording of the Act if the Court did, in fact, misunderstand the intent. We’ll see if that happens.