Ga. River Network v. Turner

• Decision Date: 16 July 2014
• Docket Number: A14A0274.,A14A0273,A14A0272,Nos. A14A0215,s. A14A0215
• Citation: 762 S.E.2d 123,328 Ga.App. 381
• Court: Georgia Court of Appeals
• Parties: 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 et al. v. Georgia River Network et al.

328 Ga.App. 381

762 S.E.2d 123

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 et al.

v.Georgia River Network et al.

Nos. A14A0215, A14A0272, A14A0273, A14A0274.

Court of Appeals of Georgia.

July 16, 2014.

Nathaniel Hemmerick Hunt, William Wall Sapp, for Appellant.

Kevin Scott Cauley, Cairo, Edward Donald Tolley, Athens, James Doyle Coots, Samuel S. Olens, Devin Hartness Smith, for Appellee.

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.

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 and damage to domestic, agricultural, recreational, fish and wildlife, and other resource uses. It is therefore declared to be the policy of this state and the intent of this chapter to strengthen and extend the present erosion and sediment control activities and programs of this state and to provide for the establishment and implementation of a state-wide comprehensive soil erosion and sediment control program to conserve and protect the land, water, air, and other resources of this state.

OCGA § 12–7–2. The Erosion and Sedimentation Act provides that land-disturbing activities must conform with “best management practices.” OCGA § 12–7–6(b). One of these practices is set forth in OCGA § 12–7–6(b)(15), which states that “[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” unless one of six exceptions applies, including “[w]here the director determines to allow a variance that is at least as protective of natural resources and the environment.” No land-disturbing activities may be conducted within a buffer “except as otherwise provided by this paragraph.” OCGA § 12–7–6(b)(15)(B). “State waters” include

any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state, which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.

OCGA § 12–7–3(16).

On May 28, 2010, the U.S. Army Corps of Engineers issued a permit to the County pursuant to Section 404 of the Federal Clean Water Act, authorizing construction of a 960–acre fishing lake. The permit allows the County to impound Tired Creek, a tributary of the Upper Ochlockonee River, by constructing a 3,000–foot long, 65–foot tall, and 450–foot wide dam. The construction of the dam and lake will destroy at least 129 acres of wetlands and over nine miles of streams.

The County also needed a buffer variance to proceed with its project. On April 30, 2012, the County submitted a revised application to the EPD for a buffer variance to permit the disturbance and loss of stream buffers at the site. In comments to the EPD, the River Groups maintained that the County's application was deficient because it did not address impacts to buffers along wetlands on the site. The River Groups asserted that wetlands are “state waters” protected by buffers and that impacts to wetlands on the site would require a buffer variance and appropriate mitigation. On July 6, 2012, the Director granted the County's application for a variance. The EPD's Nonpoint Source Program Manager thereafter sent a letter to the River Groups in which he agreed that wetlands are state waters but asserted that “[w]etlands are features that usually do not require a buffer due to the lack of ‘wrested vegetation.’ Therefore, those impacts are not included in the buffer variance request.”

The River Groups then filed a petition for hearing in the Office of State Administrative Hearings against the Director seeking to invalidate the County's buffer variance on the ground that it failed to account for and authorize impacts to wetlands. The County was permitted to intervene. The Director filed a motion to dismiss, later adopted by the County, asserting that the River Groups failed to identify an “order or action” they were challenging within the meaning of OCGA § 12–2–2(c)(2)(A). The County filed a motion to dismiss, asserting that River Groups lacked standing under OCGA § 12–2–2(c)(2)(A) because they were not aggrieved or adversely affected by the variance. The River Groups and the County filed cross-motions for summary determination. In his response to the River Groups' motion for summary determination, the Director argued that the River Groups were not aggrieved or adversely affected by the variance.

The ALJ entered an order denying the motions to dismiss; granting the River Groups' motion for summary determination; and reversing the buffer variance. The ALJ concluded that “applying the plain and unambiguous meaning of the statute, a buffer is required for all state waters, including wetlands.” The Director filed a petition for judicial review in the Fulton Court, and the County filed a petition for judicial review in the Grady Court. The County was permitted to intervene in the Fulton Court, and the Director was permitted to submit briefs in the Grady Court.

The Fulton Court reversed the ALJ's decision, concluding that the River Groups failed to challenge an “order or action” of the Director; the River Groups lacked standing; and the Director's application of the Erosion and Sedimentation Act was consistent with its plain terms. The Grady Court subsequently entered an order reaching the same conclusions and reversing the ALJ's decision, except that it found “no obvious error” in the ALJ's conclusion as to standing. We granted the River Groups' applications for discretionary appeal from the Superior Courts' orders, and these appeals and cross-appeals followed.

2. Jurisdiction.

We first address the River Groups' enumerations of error pertaining to the ALJ's subject matter jurisdiction because if subject matter jurisdiction was lacking, neither the ALJ nor the Superior Courts were authorized to enter a judgment on the merits. See First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 885, 655 S.E.2d 605 (2008).

(a) “ Order or action.”

The River Groups contend that the Superior Courts erred in concluding that the ALJ lacked jurisdiction over their petition because the petition challenged the Director's alleged failure to act, not an “order or action” of the Director. We conclude that the Superior Courts erred in reversing the ALJ on this issue.

The Erosion and Sedimentation Act provides that “[a]ll hearings on and review of contested matters, orders, or permits issued by or filed against the director ... shall be provided and conducted in accordance with subsection (c) of Code Section 12–2–2.” OCGA § 12–7–16. In turn, OCGA § 12–2–2(c)(2)(A) provides in relevant part:

Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right...