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Georgia River Network v. Turner

Court of Appeals of Georgia

July 16, 2014

GEORGIA RIVER NETWORK et al.
v.
TURNER et al. GEORGIA RIVER NETWORK et al.
v.
GRADY COUNTY BOARD OF COMMISSIONERS et al. TURNER
v.
GRADY COUNTY BOARD OF COMMISSIONERS et al. GRADY COUNTY BOARD OF COMMISSIONERS
v.
GEORGIA RIVER NETWORK et al

Cert. applied for.

Case No. A14A0215

Erosion and Sedimentation Act. Fulton Superior Court. Before Judge Baxter.

Case Nos. A14A0272, A14A0273, A14A0274

Erosion and Sedimentation Act. Grady Superior Court. Before Judge Ellerbee, Senior Judge.

Case No. A14A0215

William W. Sapp, Nathaniel H. Hunt, for appellants.

Samuel S. Olens, Attorney General, James D. Coots, Senior Assistant Attorney General, Kevin S. Cauley, Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellees.

Donald D. J. Stack, Jennifer R. Culler, Juliet Cohen, King & Spalding, Patricia T. Barmeyer, amici curiae.

Case No. A14A0272

William W. Sapp, Nathaniel H. Hunt, for appellants.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, James D. Coots, Senior Assistant Attorney General, John E. Hennelly, Assistant Attorney General, Kevin S. Cauley, Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellees.

King & Spalding, Patricia T. Barmeyer, amici curiae.

Case No. A14A0273

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, James D. Coots, Senior Assistant Attorney General, John E. Hennelly, Assistant Attorney General, Nels Peterson, Solicitor-General, for appellant.

William W. Sapp, Nathaniel H. Hunt, for appellees.

Case No. A14A0274

Kevin S. Cauley, Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellant.

William W. Sapp, Nathaniel H. Hunt, for appellees.

McFADDEN, Judge. Barnes, P. J., Doyle, P. J., and Boggs, J., concur; Andrews, P. J., Ray and Branch, JJ., dissent.

OPINION

Page 124

McFadden, Judge.

These appeals and cross-appeals arise from a petition for administrative hearing Georgia River Network and American Rivers (the " River Groups" ) filed to challenge a buffer variance the Director of the Environmental Protection Division (" EPD" ) of the Georgia Department of Natural Resources (" DNR" ) (the " Director" ) issued to the Grady County Board of Commissioners (the " County" ) under Georgia's Erosion and Sedimentation Act in connection with the County's plans to construct a 960-acre fishing lake. The buffer variance permits the County to encroach upon the 25-foot vegetative buffer the Erosion and Sedimentation Act requires adjacent to streams on the site. The Administrative Law Judge (" ALJ" ), after rejecting two challenges to her jurisdiction, reversed the variance, concluding that it failed to account for buffers required for wetlands on the site. In parallel proceedings for judicial review, the Superior Court of Fulton County (the " Fulton Court" ) and the Superior Court of Grady County (the " Grady Court" ) (collectively, the " Superior Courts" ) issued orders reversing the ALJ's decision.

In Case Nos. A14A0215 and A14A0272, the River Groups appeal from the Fulton Court and Grady Court orders, respectively, arguing that the Superior Courts erred in finding that the ALJ lacked jurisdiction and in concluding as to the merits that the Erosion and Sedimentation Act requires a 25-foot buffer only along the banks of state waters with vegetation wrested by normal stream flow or wave action. In Case Nos. A14A0273 and A14A0274, the Director and County, respectively, cross-appeal the Grady Court order. Although they do not contest the reversal of the ALJ decision, they argue that the Grady Court erred by finding " no obvious error" in the ALJ's standing determination.

We conclude that the River Groups challenged an " order or action" of the Director; that the River Groups had standing; and that the Superior Courts erred in determining that the buffer requirement applies only to state waters with wrested vegetation. We therefore reverse the superior courts' judgments.

[328 Ga.App. 382] 1. Statutory background and procedural history.

This court conducts a de novo review of claimed errors of law in a superior court's appellate review of an ALJ's decision. Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga.App. 499, 501-502 (734 S.E.2d 242) (2012).

We begin with an overview of the statutory background and a discussion of the procedural history in these cases. The purpose of the Erosion and Sedimentation Act is set out as follows:

It is found that soil erosion and sediment deposition onto lands and into waters within the watersheds of this state are occurring as a result of widespread failure to apply proper soil erosion and sedimentation control practices in land clearing, soil movement, and construction activities and that such erosion and sediment deposition result in pollution of state waters ...

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