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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Wednesday, September 3, 2014

Wrested Vegetation Rule Provides a Point of Measurement, and Not an Exception to the Stream Buffer

In Georgia River Network v. Turner, 2014 Ga. App. LEXIS 549, 2, 2014 WL 3557407 (Ga. Ct. App. July 16, 2014) (the "Turner Case"), the Georgia Court of Appeals addressed an issue of interpretation of the stream buffer requirements in the Georgia Erosion and Sedimentation Act of 1975, O.C.G.A Section 12-7-1, et seq. (the "Act").  The result of the opinion was to hold that the stream buffers do not apply only to streams with vegetation along the banks within the area of the prescribed buffer, but apply to all state waters, and even to those streams without vegetation on their banks.  

The Act implements stream buffers that extend 25 feet from a stream.  The state stream buffer prohibits land disturbance within the buffer area.  The Act defines the point for measuring the buffer as being 25 feet from the point of "wrested vegetation" along the bank.   In the Turner case, the court of appeals reviewed a trial court's order regarding a petition by river groups to challenge an interpretation by the Georgia Environmental Protection Division (the "EPD") that the wrested vegetation rule meant that if a stream did not have vegetation along its banks, there was no point where "wrested vegetation" would have begun, and therefore, there would be no stream buffer.  

The court of appeals held this interpretation was not accurate and stated that while the language of the Act was inconsistent, the purpose of the Act was not to eliminate stream buffers along rocky shores or denuded areas.   The court held that stream buffers extend 25 feet from the banks of streams even if there is no wrested vegetation to be found reasoning that the wrested vegetation rule was simply to provide a means to measure the boundary of the 25 feet, and not to provide an exception to the Act.  

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