Last summer the Georgia Supreme Court severely restricted the application of a buffer rule along all state streams – a buffer seemingly designed to protect water quality. The Georgia Erosion and Sedimentation Act (Act) establishes a mandatory 25 foot buffer along all state streams using the following language: “[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 Georgia Environmental Protection Division decided that because the Act states how the buffer should be measured based on wrested vegetation, it does not mandate a buffer when no wrested vegetation is present. The Georgia Court of Appeals disagreed finding that the sentence is ambiguous, but since the Georgia legislature clearly meant to protect water it wouldn’t make any sense to only apply the buffer when vegetation is present.
In Turner v. Georgia River Network, Georgia Supreme Court reversed, finding that the point of the Act was not to directly protect water, but to directly protect vegetation and therefore only applying the buffer when vegetation is present makes sense. Justice Melton, the lone dissenting justice, pointed out that similar language is used in the part of the statute that mandates a 50 foot buffer for trout streams. He then connected the dots and showed that the trout steams rule is seemingly designed to protect trout and it makes no sense to only protect trout when vegetation is present.
Well the Georgia legislature introduced HB-966 last week to clarify their stance. It strikes the language talking about measuring the buffer from the point where vegetation has wrested and replaces it with the “ordinary high water mark.” This clearly establishes a buffer regardless of whether vegetation is present and effectively corrects the belief of the majority of the Supreme Court. We’ll wait and see if the rest of the legislature thinks the Court misunderstood the point of the mandated buffer.
Only two other significant bills were introduced last week. Senator Beach introduced the MARTA expansion bill, SB-330, which has received lots of press and was the subject of an article last week (see Staunchly Opposing Transit is Reckless and Irresponsible). The bill allows Fulton, Dekalb, and Clayton counties to raise their sales and use tax by a half of a percent to pay for rail expansion. It would require MARTA to submit a final projects list by July 31 of this year to give voters in each county time to review prior to a referendum in the fall.
The other significant bill has to do with revitalizing rural downtowns throughout the state. HB-921 allows the creation of revitalization zones in areas of cities of less than 15,000 residents and also have a combination of several attributes including vacancy rates above 20 percent, a concentration of buildings 50 years or older, public and private financing in place, and a series of strategic development plans. Business in those zones would receive tax credits for expenditures related various rehabilitation projects.
Updates on Other Bills
HB-514, Creation of City of South Fulton
Status: Recommitted in Senate, 1/11/16.
HB-706, Change Atlanta Limits
Status: House Second Readers, 1/16/16
HB-734, Georgia Space Flight Act
Statuts: House Second Readers,1/14/16. This bill was discussed last week.
HB-693, Georgia Legacy Trust Fund
Status: House Second Readers, 1/11/16.
HR-964, Re-Creation of Counties Merged with Others
Status: House Pre-filed, 12/21/15.
SB-221, Creation of City of Greenhaven
Status: Senate Recommitted, 1/11/16
HB-785, Creation of Townships
Status: House Second Readers, 1/22/16
SB-272, Creation of Townships
Status: Senate Read and Referred, 1/21/16
SB-288, No Public Funding for Specific Pedestrian Bridges
Status: Senate Read and Referred, 1/25/16
HB-877, Tax Credits for Plug-In Electric Vehicles
Status: House Hopper, 1/28/16
HB-21, Abolish Population Requirement for Creation of Transit System
Status: Senate Recommitted, 1/11/16
*This article was updated on May 10, 2016. The stream buffer bill was incorrectly cited as HB-921.