Local Riparian Ordinances and Georgia's Erosion and Sedimentation Act

Laura England
Allison Roy
April, 2001

QUESTION:
Does the state of Georgia's Erosion and Sedimentation Act prescribe limits to the stringency with which local governments can regulate riparian buffers? If so, how could state law be amended to confer more authority on local governments to regulate riparian buffers?

ANALYSIS:

The intent of the Erosion and Sedimentation Act of 1975 (Official Code of Georgia Annotated
12-7-1 through 12-7-18) is to "provide for the establishment and implementation of a state-wide comprehensive soil erosion and sediment control program". The act sets forth a number of requirements for land-disturbing activities including: permitting, use of Best Management Practices (BMPs), and the protection of riparian buffers. The riparian buffer provision of the Erosion and Sedimentation Act declares that no land disturbing activity may be conducted within 25 ft of warm water streams or within 50 ft of trout streams (as measured horizontally from the point where vegetation has been wrested by normal stream flow). A number of activities are exempted from the permitting process for land-disturbing activities, though some of these exempted activities are required to comply with the minimum requirements set forth in Code Section 12-7-6 (Table 1).

Under the Erosion and Sedimentation Act, each county and municipality must enact a comprehensive ordinance establishing procedures governing land-disturbing activities, including a riparian buffer ordinance, to obtain permit issuing authority (O.C.G.A. 12-7-4). Pursuant to Code Section 12-7-6 (c), permit issuing authorities may establish stricter standards for land-disturbing activities than those detailed in Code Section 12-7-6. For example, local governments in Georgia may enact an ordinance that requires riparian buffers wider than 25 ft on warm water streams. On the other hand, the act does not allow for local government regulation of the land-disturbing activities exempted in Code Section 12-7-17. For example, local governments in Georgia do not have the legal authority to require riparian buffers on agricultural lands within their jurisdiction. However, in Code Section
12-7-17 (a) 8, the act specifically confers authority on local governments to regulate any land-disturbing activities that are not exempted by the act.

CONCLUSIONS:

It is not clear whether the original authors and proponents of Georgia's Erosion and Sedimentation Act intentionally preempted local government regulation of the exempted land-disturbing activities, because the organization of the act engenders some confusion on this matter. However, in doing so they departed from the "home rule" philosophy that characterizes the traditional distribution of regulatory authority in the state of Georgia. The act could easily be amended to allow for local regulation of land-disturbing activities exempted at the state level by adding a subsection (c) to Code Section 12-7-17 (subsection (a) lists the exempted activities and (b) deals with enforcement of minimum requirements where permitting is exempted), that reads as follows:

" (c) Nothing in this chapter shall prevent an issuing authority from adopting rules and
regulations, ordinances, or resolutions which establish minimum requirements for land-
disturbing activities that are exempted in subsection (a) of Code Section 12-7-17."

This addition would grant local governments the freedom and legal authority to enact ordinances governing land-disturbing activities that are adapted to meet specific local conditions and needs, congruent with the "home rule" philosophy, while still meeting the minimum requirements of the state's Erosion and Sedimentation Act.

Table 1. Land-disturbing activities exempted from permitting under Georgia's Erosion and
Sedimentation Act, O.C.G.A. 12-7-17 (a).