Georgia Department of Natural Resources (DNR) improperly issued variances that encroach on wetlands.

Topic: Environmental Law, Decided by: Judge Miller 
Docket Number: 1308374 , Decision Date: December 10, 2012 
Attachment: Click here to download the decision. 

Petitioners requested reversal of a state-level variance that authorized the encroachment of buffers along state waters at the site of a federally permitted fishing lake in Grady County, Georgia. Petitioner argued that the variance failed to consider the impacts to all state waters, specifically wetlands. The Georgia DNR contended that the variance allowed Grady County to disturb the streams affected by construction but that the Erosion and Sedimentation Act did not require buffers for wetlands. The Department filed a Motion to Dismiss asserting that the Court lacks agency jurisdiction because the Petitioners did not challenged an “order or action” of the Director. An intervenor to the action, the Grady County Board of Commissioners, filed a Motion to Dismiss stating that Petitioner lacked standing.

The Judge DENIED the Department’s Motion to Dismiss because Petitioner’s appeal properly challenged the scope and sufficiency of the variance, thereby meeting the “order or action” requirement stipulated in the Georgia Code regarding jurisdictional determinations. Further, the Judge DENIED the intervenor’s Motion to Dismiss because Petitioners had associational standing. The Judge found that the Department exceeded its regulatory authority by issuing a buffer variance that did not consider all state waters on the site. Thus, the Court GRANTED Petitioners’ Motion for Summary Determination. Moreover, the Judge REVERSED the buffer variance because the Department violated the Erosion and Sedimentation Act.

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