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Includes Model Coastal RiparianBuffer Ordinance
Prepared by:
UGA River Basin Center
UGA School of Law, Land Use Clinic
Contributing authors: •,111,%,, +
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River Basin Center: .`
Emily Franzen , • , • •
Seth Wenger .�_ 1,.. 1;: ' •
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Laurie Fowler �
Land Use Clinic: - ' ., _
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Trent Myers
Sandra Glaze
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Protecting Riparian
Buffers in C
Georgia :
Management Options
Includes Model Coastal RiparianBuffer
Ordinance
Prepared by:
UGA River Basin Center
UGA School of Law, Land Use Clinic
Contributing authors:
River Basin Center:
Emily Franzen
Seth Wenger
Laurie Fowler
Land Use Clinic:
Trent Myers
Sandra Glaze
Cover photograph:
Sandra Glaze
December, 2006
iiiiir N'p'"°''' UEPi.UE NANAAL
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F1veLNTE. (cRAA-) g a FIA ,� °
S snt/UN�SoF gH)hrENrofco`" Department of Natural Resources GEORGIA
Coastal Management Program
Protecting Riparian Buffers in Coastal
Georgia: Management Options
Table of Contents
Executive Summary 1
I. Introduction 3
A. Why protect Georgia's coastal marshlands? 3
B. What are the threats to our marshlands? 3
C. What is a coastal riparian buffer? 4
D. Why coastal riparian buffers? 4
II. Functions of Coastal Riparian Buffers 6
A. Erosion and Sediment Control 6
B. Nitrogen and Phosphorus 6
C. Other Contaminants 8
D. Habitat Protection 8
E. Private Property Protection: Scenic Viewsheds 9
F. Private Property Protection: Flood and Drought Prevention 9
III. Tools to Protect Coastal Riparian Buffers in Georgia 10
A. Coastal Riparian Buffer Ordinance 10
B. Land Acquisition 11
C. Conservation Easements and Purchase of
Development Rights 12
D. Transferable Development Rights 14
E. Clustering and Conservation Subdivisions 15
IV. Buffers and Private Property Rights 16
A. Federal Takings Law 16
B. Georgia Takings Law 17
V. Economic Considerations 20
A. The Costs 20
B. The Benefits 20
VI. Conclusion 23
VII. References 24
Appendix A: Model Coastal Riparian Buffer Ordinance for
Georgia's Local Governments 28
Executive Summary There are many policy tools available to help local
governments preserve coastal riparian buffers. A
straightforward option is a coastal riparian buffer
Scientists have long realized the important benefits ordinance, which is a local regulation to limit
that tidally influenced areas, including estuaries, tidal development activities within buffers. Although
creeks, and marshlands provide to communities. several model riparian buffer ordinances have been
Tidal creeks and their adjacent marshes are extremely developed for Georgia's local governments, these
important nursery areas for fisheries, "providing food current models were crafted for freshwater ecosystems
and habitat to numerous species of fish and shellfish, and do not take into account the unique resources
including commercially important species" (Mallin and issues of Georgia's coastal communities.
and Lewitus 2004). However, in recent years,
Therefore, a new model riparian buffer ordinance has
Georgia's coast has come under increasing pressure been developed to meet the specific needs of local
from development, resulting in an increase in non- governments along Georgia's coast (see Appendix
point source pollution to the marshes.
A).
Preserving naturally vegetated buffers along Perhaps the biggest impediment to the adoption
Georgia's marshlands and other surface water of riparian buffer ordinances is concern for private
resources is an ecologically and cost effective tool ri hts. It is essential to draft the ordinance
for protecting this valuable and fragile ecosystem.
property g
Coastal riparian buffers perform a wide range in a way that fully respects the rights of property
of ecological functions and services having owners. Buffers protected by a riparian buffer
high economic and social value. Studies have ordinance remain in the ownership of the property
demonstrated that non-point source pollution to owner. This is in contrast to greenways, which are
coastal marshes can be significantly reduced through generally publicly owned.A buffer ordinance should
the preservation of coastal riparian buffers. The never mandate public access to private property, nor
buffers act as filters, removing pollutants such as should it restrict activities on a property to such an
sediment, nutrients, contaminants, and pesticides extent that the owner cannot make use of it. These
before they enter waterways (South Carolina conditions would be grounds for a "takings" lawsuit.
Department of Health and Environment 2002a). If a local government cannot provide adequate buffer
Coastal vegetative buffer zones also provide: protection along a stream segment without infringing
on property rights, then the government must either
• Aquatic and terrestrial wildlife habitat, acquire the parcels in question (or conservation
including nursery grounds for fish and habitat easements on those parcels) or try to offset the lack
for shellfish of protection with controls (whether regulatory or
• Floodwater storage voluntary) somewhere else in the stream basin.
• Recreational opportunities
There are also various non-regulatory options such as
• Scenic and aesthetic benefits land acquisition,conservation easements,purchase of
• Preservation of historical and cultural development rights, transferable development rights,
resources and clustering that can be used to preserve riparian
Reduced property damage from floods, high buffers. Governmental acquisition may be the best
• tides and storm surges mechanism for protecting key pieces of riparian land,
although acquisition is usually reserved for special
• Increased property values cases because of the costs, particularly in coastal
• Reduced maintenance costs compared to turf areas where land values are high. There are numerous
grass sources of funds available to local governments that
Protection of coastal fishing, recreation and can be applied toward riparian land acquisition.
• tourism industries. Conservation easements are another option to protect
environmentally sensitive areas such as riparian lands.
Protecting Riparian Buffers in Coastal Georgia: Management Options 1
In a conservation easement, the landowner agrees unused development rights from owners of"sending
to give up development, timber harvesting, or other areas." Once these rights are sold, the "sending area"
similar rights in order to protect the riparian lands for may not be developed in the future and these parcels
conservation use. The landowner retains such basic are protected by a conservation easement or similar
property rights as the right to exclude,the right to sell legal tool. This transferability not only provides
and the right to use the property in a manner that does compensation to landowners who forego development
not impair the conservation value of the easement. opportunities,but it also provides the local government
Local governments, charitable organizations and with the opportunity to focus growth where it is most
private individuals may purchase or receive the appropriate. While TDR programs are used for a
easement as a gift. It is then the responsibility of variety of purposes, several coastal communities in
the easement holder to ensure that the easement has the United States use TDRs to protect their coastal
not been violated and to pursue any necessary legal resources and wetlands.
recourse for its enforcement. Landowners who donate
a conservation easement or a parcel of land in fee Clustering is similar to a TDR program, except that
simple may be eligible for preferential tax treatment clustering involves density transfers within a single
at the federal and State levels. parcel of land. For example, a landowner with a 100-
acre parcel,with a restriction of one unit per 20 acres,
Another tool for preserving riparian areas and might want to concentrate all 5 units within a 5 acre
protecting surface water resources is a transferable area to preserve the other 95 acres. By concentrating
development rights (TDR) program. With a TDR denser development away from riparian lands,density
program, a community can identify riparian lands transfers may help to protect stream buffers and coastal
it would like to preserve as "sending areas." Other features. A common ways of implementing density
areas where the community prefers to concentrate transfers is through a clustering or conservation
growth and development are designated as"receiving subdivision ordinance.
areas." Owners of "receiving areas" may purchase
2 Protecting Riparian Buffers in Coastal Georgia: Management Options
Introduction wetlands protection when the Georgia legislature took
action to protect the State's salt marshes by enacting
the Coastal Marshlands Protection Act, O.C.G.A. §
A recent study commissioned by the Coastal Georgia 12-5-280 et seq.Today,this statute remains one of the
Regional Development Center and conducted by most protective tidal wetlands laws in the nation. The
Georgia Tech projected that by 2030, over 840,000 preamble reads as follows:
people will live in the 10-county area that makes up
the Georgia Coast (Center for Quality Growth and The coastal marshlands of Georgia
Regional Development 2006). This is a 50 percent comprise a vital natural resource system.
increase in population from the roughly 558,000 people The estuarine area of Georgia is the
living there in 2000. Already, this region has seen a habitat of many species of marine life and
large population increase in recent years, with 17.5 wildlife that cannot survive without the food
percent growth between 1990 and 2000 (Center for supplied by the marshlands. The estuarine
Quality Growth and Regional Development 2006). marshlands of coastal Georgia are among
Population growth at such a high rate adds pressure the richest providers of nutrients in the
to fragile coastal ecosystems that are critical to the world. Such marshlands provide a nursery
maintenance of the commercial and recreational for commercially and recreationally valued
seafood industries, the coastal tourism industry and species of shellfish and other wildlife,
overall quality of life on the Georgia Coast. provide an important buffer against flooding
and erosion,and help control and disseminate
A. Why protect Georgia's coastal pollutants. The coastal marshlands provide
a natural recreation resource which has
marshlands? become vitally linked to the economy of
Georgia's coastal zone and to that of the
Scientists have long realized the important entire state.
benefits that tidally influenced areas, including
estuaries, tidal creeks, and marshlands provide This coastal marshlands resource system
to communities. Tidal creeks and their adjacent is costly, if not impossible, to reconstruct
marshes are extremely important nursery areas or rehabilitate once adversely affected
for fisheries and habitat for shellfish, including by man. It is important to conserve this
commercially and recreationally important species system for the present and future use and
(Mallin and Lewitus 2004). enjoyment of all citizens and visitors to our
state.Activities and structures in the coastal
In addition, these areas have value because of their marshlands must be regulated to ensure
aesthetic beauty which attracts tourism and new that the values and functions of the coastal
residents. The National Association of Regional marshlands are not impaired and to fulfill
Councils estimates that tourism provides two billion the responsibilities of each generation as
dollars annually to the coastal economy in Georgia. public trustees of the coastal marshlands for
According to the Coastal Resources Division (CRD) succeeding generations.
of the Georgia Department of Natural Resources
(DNR),recreational game fishing in the State's coastal
waters contributes about $363 million annually and B. What are the threats to our
the commercial fishing industry adds over$22 million marshlands?
annually to Georgia's coastal economy (Georgia
Department of Natural Resources).
In order to protect coastal ecosystems and the coastal
Ahead of major federal environmental legislation economy that depends upon them, communities
such as the Clean Water Act, in 1970 the State of along Georgia's coast must begin to deal with the
Georgia established itself as a national leader in tidal environmental impacts associated with its increasing
Protecting Riparian Buffers in Coastal Georgia: Management Options 3
population. Increased levels of development add the Marshland Protection Act and the Shoreline
large amounts of impervious cover, such as parking Protection Act also give State regulatory agencies
lots, rooftops, and roadways, and semi-pervious power to establish coastal riparian buffers through
cover, such as lawns and compacted, unpaved the permitting and review process (Desbonnet
driveways, to the landscape. These surfaces generate 1994). Because the effectiveness of NPS pollution
increased levels of stormwater runoff which delivers minimization and removal measures are dependent
numerous types of pollutants—such as oil,biological upon factors like slope, soil type,vegetation and type
contaminants and excess nutrients—to marshes and of land use, regulating authorities believe that local
creeks. A study conducted in tidal creeks in South government action will be the most successful way to
Carolina found that creeks draining areas with higher address NPS pollution problems, and they encourage
percentages of impervious cover were measurably local communities to adopt solutions, including
impaired physically, chemically, and biologically riparian buffers, specifically tailored to the particular
when compared with creeks draining undeveloped community's needs (NOAA 2001).
areas (Holland et al. 2004).
C. What is a coastal riparian buffer?
Pollution like stormwater runoff that that does not
emanate from a discrete source is called non-point A riparian buffer is a strip of land along a stream,
source (NPS) pollution . Other sources of NPS river, lake or marsh consisting of either undisturbed
pollution in coastal waters include agriculture and vegetation in its original natural state or undisturbed
forestry practices, faulty septic systems, and leaking vegetation that has been restored to a state that
sewer pipes. According to the U.S. Environmental closely mimics its original, natural state. The
Protection Agency (U.S. EPA), a significant portion Georgia Erosion and Sedimentation Act defines a
of the threats to coastal waters is now caused by buffer as the "area of land immediately adjacent
NPS pollution (U.S. EPA 1996). Tidal creeks and to the banks of State waters in its natural state of
estuarine systems are particularly sensitive to NPS vegetation, which facilitates the protection of water
pollution, which can cause significant damage to the quality and aquatic habitat." In the coastal context,
freshwater and marine organisms associated with riparian buffers have been defined as "corridors of
these ecosystems, including commercially important ...vegetation along rivers, streams, and tidal wetlands
species (Schiff et al. 2002; Lee 2005; Mallin 2006). that protect waterways by providing a transition zone
Therefore, as resident populations in Georgia's between upland development and adjoining surface
coastal communities grow and development along waters" (South Carolina Department of Health and
our shorelines increases, control of NPS pollution Environment 2002a). For more information regarding
becomes critical. An evaluation of the Georgia the types of vegetation that should be present in the
Coastal Management Program in 2001 by the National buffer and how to best restore and maintain coastal
Oceanic and Atmospheric Administration (NOAA) riparian buffers on your land and in your community,
recommended that Georgia communities and officials please refer to the Georgia Coastal Riparian Buffer
develop appropriate responses to water quality, land Guidebook, prepared by the River Basin Center for
use and population growth in coastal areas and should the Georgia Environmental Protection Division.
consider the use of buffers (NOAA 2001).
Georgia legislators have already used buffers to D. Why coastal riparian buffers?
address erosion and sedimentation problems to protect
Georgia's waters and meet federal water quality Coastal riparian buffers perform a wide range of
standards. The Georgia Erosion and Sedimentation ecological functions and provide services having
Act of 1975 requires a minimum 25-foot riparian high economic and social value. Scientific research
buffer along all State waters as a best management increasingly shows that riparian buffers play a crucial
practice (BMP) to minimize and prevent erosion role in protecting our waters from the effects of NPS
ollution by acting as filters and removing pollutants
and the associated sedimentation problems. Both p
4 Protecting Riparian Buffers in Coastal Georgia: Management Options
before they enter our waterways (South Carolina • Increased property values
Department of Health and Environment 2002a). • Reduced maintenance costs compared to turf
Coastal vegetative buffer zones also provide: grass
• Aquatic and terrestrial wildlife habitat, • Protection of coastal fishing, recreation and
including nursery grounds for fish and habitat tourism industries.
for shellfish As a result,coastal riparian buffers are a"conservation
• Floodwater storage bargain"because they provide so many functions and
services to communities in a relatively small area. It
• Recreational opportunities must be noted, however, that a riparian buffer is the
• Scenic and aesthetic benefits last line of defense between our surface waters and
• Preservation of historical and cultural nonpoint source pollutants. In order to protect water
resources quality adequately, a buffer ordinance should be
accompanied by an effective stormwater management
• Reduced property damage from floods, high program.
tides and storm surges
Protecting Riparian Buffers in Coastal Georgia: Management Options 5
. Fu n ct i o n s of Coastal sta I Riparian and the erosion and sedimentation associated with
those activities away from waterways and marshes.
Buffers Buffers also slow the speed of stormwater runoff
before it enters a waterway and stabilize stream banks,
Provided here is a brief summary of riparian buffer thereby reducing scouring and channel erosion.
functions, with emphasis on results of research
regarding buffers in the coastal plain and tidally Studies have yielded a range of recommendations
influenced ecosystems of the Southeast. A wide for buffer widths in order to perform the function
variety of articles and reports were reviewed in order of erosion and sedimentation control. As a rule of
to provide information about specific buffer functions thumb,the wider the buffer,the greater the amount of
and,when available,the buffer widths and other buffer sediment removal (Wenger 1999; Young et al 1980;
characteristics necessary to achieve those functions. Peterjohn and Correll 1984;Magette et al 1987, 1989;
Dillaha et al 1988, 1989). To provide for long term
A. Erosion and Sediment Control trapping of sediments, studies suggest that buffers
likely must be in the range of 100 ft (Wenger and
Sediment is the most significant pollutant in many Fowler 2000). A 1994 literature review developed
streams and rivers. Sedimentation may originate from relationships between buffer width and percent
a range of sources, including residential, commercial, removal of sediment and other pollutants (Desbonnet
and industrial construction sites, construction of et al). Results showed that a 50%removal efficiency
stream crossings for utilities and roads, for sediment should be achieved in the first 2 m but
stream channel erosion (which increases with high that 90%removal requires a buffer width of 90 m.(See
storm flows associated with Table 1). A 1997 study evaluating buffer effectiveness
urbanization), agriculture and forestry, and historical in the inner coastal plain and tidal ecosystems of the
land uses that left "legacy sediment" in streams and Chesapeake Bay Watershed found that, in the inner
rivers (Wenger and Freeman 2006). coastal plain ecosystem, when the drainage area to
buffer area ratio was 2:1, the buffer retained 96% of
Excess amounts of sediment can have numerous sediment(Lowrance et al 1997).
deleterious effects on water quality and stream biota:
• Sediment in municipal water is harmful to B. Nitrogen and Phosphorus
humans and to industrial processes.
Excessive amounts of two nutrients - nitrogen and
• Sediment deposited on stream beds reduces phosphorus - act as pollutants in aquatic systems,
habitat for fish and for the invertebrates that with excessive amounts of nitrogen generally being
many fish consume. a more gp
dama g�in pollutant in marine and estuarine
• Suspended sediment reduces light transmittance, systems and phosphorus being more damaging in
decreasing algal production. freshwater systems(Guadagnoli 2005). Nitrogen and
• High concentrations of fine suspended sediments phosphorus can lead to many changes in the ecology
cause direct mortality for many fish. of aquatic systems. Both nutrients contribute to
eutrophication, the process of"over-fertilization" of
• Suspended sediments reduce the abundance of a water body due to an increase in nutrient loading.
filter-feeding organisms, including mollusks Eutrophication often leads to algal blooms and low
and some arthropods. oxygen levels in marine and estuarine systems,both of
• Sedimentation reduces the capacity and the which have been documented in East Coast estuaries
useful life of reservoirs. in recent years and have been linked to massive fish
Riparian buffers that are naturally vegetated act as kills and releases of toxins that are poisonous to
filters to remove sediment from surface runoff. They humans (Burkholder et al. 1997). Nonpoint sources
also serve to keep development and grading activities of phosphorous and nitrogen include agricultural
6 Protecting Riparian Buffers in Coastal Georgia: Management Options
and residential fertilizers, septic drain fields, leaking (Lowrance et al. 1997).Nitrate removal is also higher
sewer pipes and animal wastes from concentrated in areas with poorly draining soils, such as clay/loam.
animal feeding operations. Wetlands are particularly important for performing
Nitrogen is readily removed from stormwater when the function of nitrate removal, as they contain a high
filtered through a vegetated buffer because it is water table and poorly draining soils (Desbonnet et
usually dissolved in the water column. Again, the al. 1994).
wider the buffer, the more nitrogen removal function
it will provide, but Desbonnet et al. (1994) report a Unlike nitrogen, phosphorus is almost always
50%removal efficiency for nitrogen at a buffer width undissolved and attached to sediments (Karr and
of 3.5m and a 90% efficiency at 150m (See Table 1). Schlosser 1977,Peterjohn and Correll 1984, Osborne
and Kovacic 1993) or organic matter (Wenger 1999)
Nitrogen ispresentin stormwaterinnumerous inorganic when present in stormwater. As a result,buffer widths
and organic forms. Two common forms include that are sufficient to remove sediments should also
nitrate (NO3), which is toxic to humans and animals be sufficient to trap and remove phosphorus (Wenger
at high concentrations (> 10mg/L), and ammonium 1999).Phosphorus is removed from the buffer mostly
(NH4), which is toxic to many aquatic organisms. by uptake of the riparian vegetation. When the
Ammonium is readily taken up by vegetation in vegetation dies, the nutrients are eventually returned
the buffer, but buffers remove nitrate from runoff to the soil and then to the water through the process
through a process performed by microorganisms of decomposition.
known as denitrification. When nitrogen is present
in stormwater in the form of nitrate, Desbonnet et The Desbonnet et al. (1994) study reports a 50%
al. (1994) reports that riparian buffers are much less phosphorus removal efficiency at a buffer width of
efficient at removing the nutrient, giving a removal 5 m and a 90% removal rate at 150 m. (See Table 1).
efficiency of 50% at a buffer width of greater than Other studies have found that in the short term(before
100m. However,other studies have found that a much vegetation dies and the phosphorus is reintroduced
narrower buffer efficiently removes most nitrate from into the system), buffers of 8 m and 16 m in width
the water column (Fennesy and Cronk 1997; Gilliam trapped 66% and 95% of phosphorus, respectively
1994;Lowrance et al. 1997),and one study reports that (Vought et al 1994), and buffers of 20 m and 28 m
a buffer width of 20m-30m removes nearly 100% of trapped 67% and 81% of phosphorus, respectively
nitrate (Fennesy and Cronk 1997). The efficiency of (Mander et al 1997). Finally, studies have found that
the buffer for removing nitrate depends largely upon grassy areas are more efficient than forested areas
the way in which the water passes through the buffer. for nutrient removal. However, these studies also
This, in turn, depends upon the water table depth and found that buffer effectiveness declined over time,
soil type. If the water table is high so that the flow is presumably because vegetation was not harvested to
shallow and comes into contact with the root zone of prevent reintroduction of the nutrients into the system
the riparian vegetation,nitrate removal will be higher (Dillaha et al 1988 and 1989,Magette 1987 and 1989).
Table 1. Buffer widths required to attain different removal efficiencies for pollutants(Adapted
from Table 5,Desbonnet et al.(1990).
Removal Sediment TSS Nitrogen Nitrate Phosphorus
(%) Buffer width required to achieve removal (m)
50 0.5 2 3.5 >100 5
60 2 6 9 12
70 7 20 23 35
80 25 60 60 85
90 90 200 150 250
99 300 700 350 550
Protecting Riparian Buffers in Coastal Georgia: Management Options 7
For grassy buffer areas, studies found that the wider resources by displacing pesticide application away
the buffer, the lower the concentration of phosphorus from the water body. In one study of Coastal Plain
in runoff(Dillaha et al 1989,Magette 1987 and 1989; streams, unexpectedly low pesticide levels were
Desbonnet 1994). found in streams located in agricultural watersheds
in which pesticides were regularly applied, which
C. Other Contaminants was hypothesized to be due to the presence of intact
forested floodplains and wetlands (Frick et al. 1998).
Along with sediment and excess nutrients, the other Buffers are effective at filtering and/or trapping
main types of pollutants found in NPS pollution pesticides (Frick et al. 1998; Hatfield et al 1995;
include pesticides, heavy metals, and biological Arora et al 1996; Lowrance et al 1997) and heavy
contaminants and pathogens found in human and metals(Herson-Jones et al 1995;Groffman et al 1991)
animal waste. Disease producing pathogens found in before than can enter a water body. Many pesticides
human and animal wastes can cause illnesses when are broken down in the soil, and heavy metals bind to
people come in contact with polluted water or eat soil particles, becoming trapped in the buffer rather
contaminated fish and shellfish. Pathogens can also than in aquatic sediments.
harm other aquatic organisms directly through disease
or indirectly by using up all available oxygen in the As with other types of pollutants,the wider the buffer
water column, which kills fish and other organisms. is, the greater its ability to protect water resources
Just as they trap sediment and nutrients in their from these chemicals. Wider buffers provide more
vegetation,riparian buffers can trap human and animal residence time for chemicals to break down and more
wastes transported in surface runoff. Several studies sites for metals to bind to soil particles. A 1993 review
have shown that concentrations of fecal coliform (an of studies on the use of buffers to reduce pesticide
indicator of organic pollution) in surface runoff were contamination of water in the Southeast reported that
reduced when the water was filtered through grass regular use of buffer strips kept pesticide residue
buffer strips (Coyne et al 1995; Karr and Schlosser concentrations within water quality standards. The
1977). report found that the high concentrations of pesticide
in the water occurred when no buffer was present or
Pesticides are regularly applied to residential lawns when pesticides were applied within the buffer and
and row crop agriculture and, in the Southeast, are concluded that buffers 15 m in width were effective to
used increasingly in forestry practices (Neary et al minimize pesticide contamination in streams (Neary
1993). Heavy metals are a by-product of industrial et al. 1993). Other studies suggest much wider buffers
activities in most cases and are usually found in may be required(Lowrance et al. 1997).
the highest concentrations in urbanized watersheds
(Crawford and Lenat 1989). Toxins in pesticides may D. Habitat Protection
have immediate lethal effects on aquatic organisms if
present in a water body in large amounts. At smaller Coastal buffer zones provide habitat for native plant,
doses, these toxins may also have various harmful animal and aquatic species (Rhode Island Program
effects on organisms (Cooper 1993). Toxic pollutants 1994). Vegetation provides shade and cover from
such as pesticides and heavy metals can also become predators, as well as nesting and feeding habitat for
trapped in aquatic sediments and persist for hundreds resident and migratory species. For example, buffers
of years. When this occurs, they become virtually along the marsh-upland shoreline protect roosting
impossible to remove from the system. Activities and foraging sites for colonial waterbirds. Wildlife
such as boating, dredging or construction that disturb diversity is linked to a buffer's size; wider buffers
contaminated sediments can then release these toxic support a greater variety and number of species.
substances into the water column and cause harm to Furthermore,buffers that possess vegetation native to
aquatic organisms and humans. the area provide more valuable habitat for sustaining
resident species. A continuous buffer is of particular
Buffers play an important role in protecting aquatic value in protecting amphibians,waterfowl,and coastal
8 Protecting Riparian Buffers in Coastal Georgia: Management Options
fish spawning and nursery areas (South Carolina and visual resources along the coast and preserve the
Department of Health and Environment 2002b). natural character of the shoreline,mitigating the visual
impacts of coastal development. For aesthetic appeal,
Since small tidal creeks are critically important a mix of native vegetation provides visual diversity.
spawning andnursery areas for commerciallyimportant Utilization of native plants is also economical since
aquatic species, wider buffers are recommended the costs of design and engineering are avoided.
for small tidal creeks as well as bigger freshwater
streams (South Carolina Department of Health and F. Private Property Protection: Flood
Environment 2002b). For general-purpose buffers
intended to provide some value as wildlife habitat, a and Drought Prevention
minimum width of fifteen meters (about fifty feet) is
suggested (Desbonnet et al.1994). Vegetated buffers Coastal buffer zones provide a natural transition
of this width generally provide some water quality zone between the open coast, marshes, and upland
protection for most waterways (approximately sixty development (Rhode Island Program 1994). In
percent pollutant removal), offer minimal wildlife coastal areas, riparian buffers have been shown to
habitat value,protect visual and aesthetic appeal, and reduce flooding by slowing surface water runoff
can provide a natural physical barrier between public and spreading it over a wider area and by allowing
and private properties (Desbonnet et al.1994). more water to percolate into the water table (Rhode
Island Program 1994; South Carolina Department of
Health and Environment 2002b). A 1998 Georgia
E. Private Property Protection: coastal plain study reported that in 1994 and 1997,
Scenic Views h ed s flooding was limited by largely intact natural riparian
areas (Michener et al. 1998). Buffers also have been
Of primary concern to many coastal area planners, found to mitigate property destruction by maintaining
managers, and citizens is the preservation and undeveloped land along waterways and locating
protection of the coastal region's visual diversity and development away from floodwaters, storm surges
unique character. Coastal buffers protect the scenic and extreme high tides (Desbonnet et al. 1994).
Protecting Riparian Buffers in Coastal Georgia: Management Options 9
Ill. Tools to Protect Coastal application of the 50-foot buffer rule recently adopted
under the CMPA. In addition, the model ordinance
Riparian Buffers is an excellent tool for managing activities in the
in Georgia buffer after a marshlands permit has been granted.
The model ordinance and the companion riparian
buffer guidance manual specifically cover activities
A. Coastal Riparian Buffer such as preservation and enhancement of vegetation,
Ordinance use of native plants, limitations on use of pesticides
and fertilizers, and creation of view corridors. These
On February 28, 2007, the Georgia DNR Board activities are not addressed by the rules for the 50-
adopted a new rule pursuant to the Coastal Marshlands foot buffer under the CMPA.
Protection Act that provides for a 50-foot buffer
adjacent to coastal marshlands. This new buffer In July 2007, the DNR Board will adopt additional
requirement applies only to projects that require a rules for granting exceptions to the CMPA's 50-foot
permit under the Coastal Marshlands Protection Act buffer. While the contents of the exceptions process
(CMPA). Under the rules, permitted projects have are yet to be finalized,the draft document would grant
two parts, a marshland component and an upland an exception if all of the following three conditions
component. The marshland component includes any are met:
parts of the project located in, on,or over an estuarine
area. It also includes activities that "remove, fill, 1. Application of the marshlands buffer requirement
dredge, drain, or otherwise alter any marshlands." will create a substantial hardship on the applicant;
Examples include marinas, bulkheads, community and
docks, boat ramps, public recreational docks, and 2. The purpose, function, and treatment capabilities
piers. The upland component of a project includes of the marshlands buffer can be, or have been,
the "service areas, amenities, and recreational achieved by alternative means such that the
area" located inland of the coastal marshlands "that stormwater discharge to coastal marshlands from
serve or augment the functioning of the marshlands the marshland buffer is managed according to
component of the project."Examples listed in the rule the policy, criteria, and information, including
include dry stack boat storage,dockmaster shops,fuel technical specifications and standards, found
storage,and delivery facilities and restrooms intended in latest edition of the Georgia Stormwater
to serve the marshlands component of the project. Management Manual as amended to address
coastal specific issues, and is protective of water
The 50-foot buffer requirement does not apply quality; and
to projects or activities that are exempt under the 3. Consistent with the purpose and reasonable use
CMPA. The buffer also does not apply to projects of the proposed project, the smallest practicable
that do not require a permit under the CMPA, such encroachment into the marshlands buffer is
as most single, private-use recreational docks or any utilized.
development project that does not alter the marsh
or include placement of a structure over the marsh. Although several model riparian buffer ordinances
The rule does not generally extend to or apply to have been developed for Georgia's local
residential development associated with a proposed governments, these current models were crafted with
community dock or marina. As a result, local freshwater ecosystems in mind and do not take into
governments that wish to protect riparian buffers account the unique resources and issues facing the
adjacent to coastal marshlands during activities such tidally influenced ecosystems of Georgia's coastal
as residential development,commercial development, communities. Therefore, there is a need for a model
and construction of private,single-family recreational riparian buffer ordinance that meets the specific needs
docks should consider adopting a coastal riparian of local governments along Georgia's coast. A Model
buffer ordinance. Doing so will promote a consistent Coastal Riparian Buffer Ordinance for Georgia has
10 Protecting Riparian Buffers in Coastal Georgia: Management Options
been developed and is available in Appendix A of this lands. These include water quality protection, flood
document. protection, wetlands protection, reduction of erosion,
and scenic protection.4 Therefore,projects that aim to
use the funds in order to purchase riparian lands are
B. Land Acquisition just the type of projects that the GLCP was created to
serve and fund. For more information regarding the
Acquisition is sometimes the best mechanism for application process and other details of the program,
protecting key parcels of riparian lands. Generally, visit http://www.gadnrorg/g1cp/.
acquisition is reserved for special cases. While cost
is obviously the most significant barrier to use of Another funding source for the purchase of riparian
acquisition as a protection tool, especially in coastal lands available to communities located in Georgia's
areas where land values are generally extremely high, 11-county"coastal zone"area is NOAA's Coastal and
there are numerous sources of funds available to local Estuarine Land Conservation Program(CELCP).5 This
governments that can be applied toward riparian land program was established in 2002 topermanentlyprotect
acquisition. coastal and estuarine lands "considered important for
their ecological, conservation, recreational, historical
The most significant source of funds available to or aesthetic values."It provides matching funds to state
Georgia's local governments for land acquisition is and local governments for purchase of such lands or
the new Georgia Land Conservation Program(GLCP). for purchase of permanent conservation easements on
The GLCP was created in 2005 by the Georgia Land such lands.' From 2002-2006, CELCP has provided
Conservation Act' and provides funding for land over $177 million nationally for purchase of coastal
conservation projects in the form of loans and grants lands. The types of projects funded to date include
to all cities and counties in Georgia, regardless of those with the goals of protecting wetlands and other
their size or location. Since its beginning,the Georgia significant coastal habitats, reducing coastal water
Land Conservation Council has approved projects pollution, and providing the public with recreational
totaling over 18,000 acres.2 The funds from the access to the coast.'
program can be used for all direct costs of activities
required by State and local law in order to purchase Georgia's CELCP is administered by the Georgia
a fee simple or lesser interest in real property. Such DNR, and program staff considers projects that are
activities include the purchase price, the cost of due consistent with the State's Coastal and Estuarine Land
diligence,title insurance costs,attorneys fees,fees for Conservation Plan. According to this Plan, funds will
services related to acquisition (such as holding costs, be prioritized for purchases of key parcels of coastal
overhead costs, finders fees, etc.) and costs related to
the closing transaction.' 4 Id.
In 5 National Oceanic and Atmospheric Administration,The
n order to be considered for funding under the GLCP,
Coastal and Estuarine Land Conservation Program,http://
projects must demonstrate that they will serve one or coastalmanagement.noaa.gov/land/welcome.html(last revised
more of the conservation goals of the program. One of Sept. 15,2006). Georgia's coastal zone includes the 11 coun-
the program's listed conservation goals is"protection ties that border tidally-influenced waters or have economies
of riparian buffers and other areas that serve as natural that are closely tied to coastal resources. National Oceanic and
Atmospheric Administration,State Coastal Zone Boundaries,
habitat and corridors for native plant and animal available at http://coastalmanagement.noaa.gov/mystate/docs/
species," and several of the other listed conservation StateCZBoundaries.pdf(April 22,2004).
goals are served through purchase of riparian
6 Georgia Coastal Resources Division,Georgia Coastal&
1 O.C.G.A. § 36-22-1 et seq. (2006). Estuarine Land Conservation Plan,http://crd.dnr.state.ga.us/
content/displaycontent.asp?txtDocument=1045(last revised
2 Georgia Department of Natural Resources,Recent Projects, Sept.27,2006).
http://www.gadnrorg/glcp/Documents/Recent_Projects.pdf 7 National Oceanic and Atmospheric Administration,CELCP
(last visited June 1,2006). Projects,http://coastalmanagement.noaa.gov/land/celcp_proj-
3 O.C.G.A. § 36-22-2(2006). ects.html(last revised July 13,2006).
Protecting Riparian Buffers in Coastal Georgia:Management Options 11
or estuarine, tidally influenced lands that are under Conservation Easement Act, O.C.G.A. § 44-10-1
threat of development, in relatively good ecological et seq., which authorizes and encourages the use of
condition and need no significant restoration work conservation easements in Georgia. A conservation
in order to provide the community with ecological easement is a legally binding agreement between a
services. To date, no projects in Georgia have been landowner and a governing authority or a federally
funded by the program, although the Georgia DNR recognized charitable organization that restricts
has submitted a proposal to CELCP for the fee simple certain development activities and uses of the land.10
purchase of lands adjacent to the Sansavilla Wildlife Fee simple ownership of land entitles one to a"bundle
Management Area in the Altamaha River Basin. If of rights" including the right to sell, the right to
the project is selected for the program, the funds exclude others,the right to farm or mine and the right
will become available in March 2007.8 For more to develop, among others. In a conservation easement
information, visit http://coastalmanagement.noaa. agreement,the fee simple landowner agrees to give up
gov/land/welcome.html or contact Jill Andrews, or sell one or more of these rights in order to protect
Georgia DNR Coastal Management Program, at 912- a natural resource. For example, a landowner may
262-3198. choose to give up or sell the right to harvest timber or
conduct land-disturbing activity on forested riparian
Other sources of funding for riparian land acquisition lands in order to protect water resources and wildlife
include: habitat. The landowner retains such basic property
• Clean Water Act Section 319. Funds for rights as the right to exclude others from their property,
nonpoint source pollution control. Priority the right to sell and the right to use the property in
goes to watersheds ranked highly in Georgia's a manner that does not compromise or interfere
Unified Water Assessment Process. with the conservation goals of the easement. Local
• Impact Fees. Local governments are governments, charitable organizations and private
authorized to charge fees to developers to pay individuals may purchase or receive the easement as
for the infrastructure necessary to support the a gift. It is then the responsibility of the easement
development.9 These fees can be applied to holder to ensure that the terms of the easement are not
protect and produce water supplies, acquire violated and to pursue any legal recourse necessary
and protect parks and open space, protect and for its enforcement."
improve shores (stream banks), and provide
for flood control, among other purposes. Conservation easements have been used effectively
• Creation of a stormwater utility. In recent to protect environmentally sensitive areas and can
years, several Georgia local governments be useful in preserving tracts of riparian lands.12 In
have instituted a stormwater utility to help pay addition to these environmental benefits,conservation
for the maintenance and construction costs easements offer other advantages to local governments,
associated with stormwater infrastructure. such as reduced maintenance and service costs.13
These funds could potentially be used by a local Though it is difficult to predict what the level of
government to purchase key riparian lands for participation in such a voluntary program might be,
the purposes of stormwater control and water a number of recent developments in Georgia should
quality protection. serve to encourage landowner participation.
C. Conservation Easements and 10 Fowler,Laurie, Conservation Easements for Natural Re-
Purchase of Development Rights source Protection, (1st ed. 1994),available at http://outreach.
ecology.uga.edu/tools/easements/cons_easements_1 st_ed.html.
In 1992, the Georgia legislature passed the Uniform 11 1d.
12 Wenger,Seth and Laurie Fowler,Protecting Stream and
8 Personal communication with Jill Andrews,Georgia DNR River Corridors: Creating Effective Local Riparian Buffer
Coastal Management Program. Ordinances 27(2000).
9 O.C.G.A. § 36-71-1 et seq(2006). 13 Id.
12 Protecting Riparian Buffers in Coastal Georgia: Management Options
The Uniform Conservation Easement Act empowers protection, tax incentives may also encourage
both governmental bodies and certain charitable landowners to donate or sell conservation easements.
corporations or trusts to become holders of easements.14 These tax deductions and credits give landowners
Though local governments do hold some easements, an extra incentive to donate or sell conservation
charitable organizations provide an attractive easements because they are able to recoup some of the
alternative holder,and charitable organizations known value of the property lost by foregoing development.19
as land trusts have become increasingly active in the At the same time, the local government saves by not
State in the past decade. Land trusts are capable of paying full fair market value for the interests in land
accepting and enforcing conservation easements, (if the easement is sold rather than donated).20
thereby relieving local government of the burden of
monitoring and oversight.15 There are now 46 land Both federal and State tax laws allow landowners to
trusts active in Georgia.16 deduct the value of a donated conservation easement
or land in fee simple (considered a charitable gift)
The following land trusts currently maintain property from their income tax so long as the easement furthers
or will consider maintaining property along Georgia's one of four conservation purposes. These purposes
coast: include"the protection of relatively natural habitat of
• St. Simon's Land Trust. Since 2000, the St. fish, wildlife, or plants, or similar ecosystems" and
Simon's Land Trust has preserved 72 acres, "the preservation of open space yielding significant
including 5 easements containing coastal riparian public benefit for the scenic enjoyment of the general
lands. In evaluating acquisition, St. Simon Land public or pursuant to a clearly delineated federal,state
Trust looks at the overall conservation value of
or local government conservation policy,"21 both of
the land and inquires whether its preservation which would likely be satisfied in the case of coastal
fits into the overarching Greenprint Plan for riparian buffers. The value of the easement or the
the island." For more information, visit http:// fee simple interest in land,which must be determined
wwwsslt.org/ by a qualified appraiser if it exceeds $5,000, is the
difference between the fair market value (FMV) of
• The Georgia Land Trust. With a staff of nine the land without the restriction and the FMV after the
individuals, the Georgia Land Trust currently restriction. In most cases the landowner can deduct
preserves over 1400 acres of coastal land, most up to 30% of his adjusted gross income (AGI) over a
of which contain riparian lands. The Trust period of six years until the value of the easement is
has easements in Effingham, Bryan, Liberty, exhausted. If a landowner acts quickly, however, he
Camden and Chatham counties, including two may be eligible for more advantageous treatment. In
small easements on Tybee Island.'$ For more August 2006, Congress enacted a provision in the tax
information, visit http://wwwgalandtrust.org/ code allowing a landowner to deduct up to 50% of
• The Nature Conservancy. For more information, his AGI over sixteen years or until the amount of the
visit www nature.orgl value of the gift is used up. This provision will sunset
on December 31, 2007, after which the deductions
In addition to a commitment to environmental revert to the previous limits of 30% of AGI and a six-
year carryover. 22
14 O.C.G.A. §44-10-2(2)(2006). 19 Fowler,Laurie,Hans Neuhauser,and Curt Soper,A State
15 Wenger and Fowler,supra note 12,at 27. Income Tax Credit Program:An Incentive for Private Land
16 Georgia Land Trust Service Center,Georgia Environmental Conservation 3 (2004)(on file with author).
Policy Institute,http://wwwgepinstitute.com/landtrust.asp(last 20 Id,at 5.
visited June 1,2006). 21 I.R.C. § 170(2006).
17 Personal communication with Michelle Pugliese,St. 22 Memorandum from Lee Carter and Beau Howell,Upper Al-
Simon's Land Trust. tamaha Practicum,River Basin Center,University of Georgia,
18 Personal communication with Frank McIntosh,Georgia to Peyton Ferry Farm Members 6-7(Dec. 1,2006)(on file with
Land Trust. author).
Protecting Riparian Buffers in Coastal Georgia:Management Options 13
In 2006, the Georgia legislature passed and the community). For information on funding sources
Governor Purdue signed HB 1107, the Georgia Land for PDR programs, please see the preceding section
Conservation Tax Credit. The Georgia Conservation entitled "Land Acquisition," as the sources of funds
Income Tax Credit Program (GCTCP) allows for outright acquisition and easement purchase by
Georgia landowners that donate either a conservation local governments in Georgia are similar, if not
easement or land in fee simple to the State or qualified identical.
organization to receive a State income tax credit of
25% of the value of the donated land or easement, as Because conservation easements have the potential
determined by the local tax assessor. In addition, the to preserve additional riparian lands beyond those
value of the donation cannot exceed the taxpayer's protected by a riparian buffer ordinance, easements
income tax liability, and, in any event, is capped at have great potential to provide for supplemental
$ 250,000 for individual donors or $ 500,000 for protection of riparian lands. Local governments can
corporate donors. The tax credit may be applied to encourage the donation of conservation easements
the landowner's tax liability over a period of up to with public information campaigns, cooperation
six years. 23 Lands eligible for the GCTCP include with local land trusts, and the inclusion of positive
wetlands, riparian buffers, and"other areas that serve statements in their comprehensive plans regarding the
as natural habitat and corridors for native plant and preservation of riparian lands.26
animal species. Donations must be made to the State
or to a "qualified organization," which include any D. Transferable Development
charitable non-profit organization that has adopted Rights
the Land Trust Standards and Practices and has been
in existence for five or more years at the time of Another preservation tool for communities
donation. 24 confronted with growth management is a transferable
development rights (TDR) program. With this tool,
Finally, the landowner who places a conservation the community can focus future development away
easement on his property may be eligible for a property from environmentally sensitive areas,such as riparian
tax deduction. Georgia's Uniform Conservation buffers, to more appropriate locations.27 With a TDR
Easement Act provides that the landowner may program, a community can identify riparian lands it
demand a revaluation of his property so as to reflect would like to preserve as "sending areas." In many
the existence of the encumbrance on the next tax cases,the local government zones these areas at a low
digest.25 density. Other areas where the community prefers to
concentrate growth and development are designated
In addition to soliciting donations of conservation as"receiving areas."Owners of"receiving areas"may
easements to protect buffers, local governments purchase unused development rights from owners of
can establish purchase of development rights "sending areas" in order to gain the right to develop
(PDR) programs. Under such a program, the local more densely than the underlying zoning would
government purchases the development rights from allow.28 Once these rights are sold, the sending area
willing landowners and a conservation easement is may not be developed in the future and these parcels
subsequentlyplaceduponthe landowner's pare el.Local are protected by a conservation easement or similar
governments select lands for purchase based upon the legal tool. This transferability not only provides
willingness of landowners and the conservation value compensation to landowners for low-density zoning,
of the land (as determined by criteria established by but provides the local government with the opportunity
23 O.C.G.A. §48-7-29.10(2006);see also Ga.Dep't of Natu-
ral Resources,Procedures for the Georgia Conservation Tax 26 Wenger and Fowler,supra note 12,at 27.
Credit Program 8(2006),available at http://www.galandtrust.
org/PDF%20files/ConservationTaxCreditDraftRegs.pdf 27 Rick Pruetz,Saved by Development:Preserving Environ
mental Areas, Farmland and Historic Landmarks with Transfer
24 Ga.Comp.R. &Regs. § 391-1-6.-03 (2006). of Development Rights 3(1997).
25 O.C.G.A. §44-10-8(2006). 28 Id.
14 Protecting Riparian Buffers in Coastal Georgia: Management Options
to focus growth where it is most appropriate.Although E. Clustering and Conservation
it is possible to designate all coastal stream and river
corridors as "sending areas,"this may have the effect Subdivisions
of flooding the market with a large number of small
TDR credits. The establishment of a TDR banking Though similar to the concept of TDRs, clustering is
system may address this problem. 29 different in that the transfer of density occurs within
a single parcel of land.34 For example, a landowner
While TDR programs are used for a variety of with a 100-acre parcel that is zone at one unit per
purposes, the following coastal communities use 20 acres, might want to concentrate all five units
TDRs specifically to protect their coastal resources within a five acre area to preserve the other 95 acres.
and wetlands. By concentrating denser development away from
riparian lands, clustering may help to protect stream
• Clearwater, Florida adopted a TDR ordinance buffers and coastal features.35 A common way of
in order to preserve open space, specifically implementing clustering in a community is through a
limiting development in those properties
clustering or conservation subdivision ordinance. For
"seaward of the coastal construction control line
along the beaches of the Gulf of Mexico!'" more information on these tools and how to implement
them in Georgia, visit http://www.rivercenteruga.
• Lee County, Florida protects wetlands and the edu/service/tools/cons_subdivisions.htm.
adjacent transitional zones by heavily restricting
development in these areas. The county's TDR
program allows development rights in these
areas to be purchased and used in more intensely
developed urban, commercial and industrial
zones.31
• Hollywood, Florida rezoned one of its last
undeveloped beachfront areas from twenty-five
units per acre to seven units per acre. The city's
TDR program allows developers to transfer
density credits from this area to a multiple-
family residential zone further away from the
beach.32
• Brevard County, Florida adopted a TDR
ordinance to encourage preservation of coastal
areas and to compensate landowners whose
property was rezoned from 30 units per acre to
one unit per acre.33
29 Wenger and Fowler,supra note 12,at 26.
30 Pruetz,supra note 27,at 359.
31 Id. at 272.
32 Id. at 370. 34 Id.at 7.
33 Id. at 29,340. 35 Wenger and Fowler,supra note 12,at 26.
Protecting Riparian Buffers in Coastal Georgia:Management Options 15
V. B u f f e rs and n d Private Property government acquires property from private parties
through the condemnation process, adhering
Rights scrupulously to the requirements of the takings
clause.39 However, a more difficult case is presented
Perhaps the biggest impediment to establishing when government, or a government agency, issues a
riparian buffer ordinances is concern for private regulation, like a riparian buffer ordinance, that may
property rights. Yet, a well written ordinance that inadvertently reduce or eliminate the value of the
is administered fairly will balance natural resource privately owned land.4°
protection with the rights of property owners. It is
entirely possible to provide strong protection for Initially, only when the government physically
riparian buffers while respecting the rights of property exerted dominion or control over private property did
owners. the courts require compensation under the Takings
Clause.41 Therefore historically, governments
Buffers protected by a riparian buffer ordinance could regulate the use of private property without
remain in the ownership of the property owner and compensating the owner.42 This formalistic approach
preclude general public access. This is in contrast to changed in 1922 when Justice Oliver Wendell Holmes,
greenways, which are generally publicly owned. A Jr., speaking for the U.S. Supreme Court, specified
buffer ordinance should never mandate public access "while property may be regulated to a certain extent,
to private property, nor should it restrict activities on if regulation goes too far it will be recognized as a
a property to such an extent that the owner cannot `taking."'43 Justice Holmes elaborated, "whether the
make use of it. These conditions would be grounds state's regulation has "[gone] too far" is a question
for a takings lawsuit. If a local government cannot of degree — and therefore cannot be disposed of by
provide adequate buffer protection along a stream general propositions." Since that decision, courts
segment or marsh without infringing on property have attempted to clarify when a statute"goes to far."45
rights, then the government must either acquire the The Court later endorsed "ad hoc, factual inquiries"
based on the specific facts of each case.46 This inquiry
parcels in question(or conservation easements on the uses a three-part balancing test to determine whether a
parcels) or try to offset the lack of protection with taking requiring compensation has occurred. The Penn
controls(whether regulatory or voluntary)somewhere Central balancing test analyzes the economic impact
else in the stream basin. on the claimant, the extent to which the regulation
A. Federal Takings Law 39 Marzulla,Nancie,State Private Property Rights Initiatives
As a Response to "Environmental Takings", 46 S.C.L.Rev.
Today, any discussion of land-use management 613,623 (1995).
and regulation must include the takings issue. The 40 Burcat,Joel R.and Julia M.Glencer, The Law of Regula-
provision of the Fifth Amendment that prohibits tory Takings: Part I—Development of the Law 1 (2002),
government from taking property for a public use available at http://www.king.com/files/tbl_s48News/PDFUp-
load307/7641/bu rcatwhtpape r..pdf.
without just compensation is the key to constitutional
land use law.36 The Takings Clause of the Fifth 41 Hutchinson,David,A Setback For The Rivers of Massachu-
setts? An Application of Regulatory Takings Doctrine To The
Amendment provides: "nor shall private property be Watershed Protection Act And the Massachusetts River Protec-
taken for public use, without just compensation."37 tion Act,73 B.U.L.REV.237,246-47(1993).
This provision is applied to the states through 42 Id.
the Fourteenth Amendment.38 Traditionally, the
43 Pennsylvania Coal Co. v.Mahon,260 U.S. 393,415 (1922)
36 Jurgensmeyer,Julian C. &Thomas Roberts E.,Land Use (emphasis added).
Planning and Development Planning Regulation Law, Consti- 44 Id. at 416.
tutional Limitations: The Takings Issue, §10.2(Pt ed. 1998).
45 Burcat and Glencer,supra note 40.
37 U.S.Const. amend.V.
46 Penn Central Transportation Co. v. City of New York,438
38 Jurgensmeyer&Roberts,supra note 36. U.S. 104, 124(1978).
16 Protecting Riparian Buffers in Coastal Georgia:Management Options
interferes with investment-backed expectations and be protected from takings claims on those grounds as
the character and extent of the government action.47 well.53 Conversely,the Court's emphasis on economic
In 1992 the Court decided an important regulatory and developmental uses in the case may suggest a bias
takings case, Lucas v. South Carolina Coastal against purely environmental purposes.54 The Court
Council.48 In Lucas, the landowner purchased two states that it does consider non-economic interests
undeveloped beachfront lots on a South Carolina in land in its takings analysis and environmental
barrier island,intending to build a single family home regulations like riparian buffer ordinances have both
on each. In 1988, before Lucas began construction, market and non-market economic value.55
the State legislature enacted a land use statute that
effectively barred any development on Lucas's B. Georgia Takings Law
property. The trial court found the statute had
rendered the property valueless and granted Lucas The Georgia constitution has it own takings clause
compensation for the taking. The State appealed and that parallels the U.S.Constitution's Takings Clause.56
the South Carolina supreme court reversed, holding Governmental regulations, such as riparian buffer
the State's purpose in preventing harm to the coastline ordinances, may be challenged under the federal
outweighed Lucas's economic interest.49 The U.S. Constitution, the Georgia constitution, or both.
Supreme Court took the opportunity to elaborate on Consequently, any riparian buffer regulation should
its takings jurisprudence and held that a taking occurs comply with all applicable federal and State laws.57
when a land use regulation "does not substantially The Georgia supreme court has twice visited the
advance legitimate State interests or denies an owner constitutionality of mandatory riparian buffers and
economically viable use of his land." The Court both times has upheld the laws.58 Many of the local
characterized denial of all economically viable use jurisdictions in the metropolitan Atlanta area have
as a "categorical" rule automatically triggering a enacted buffer ordinances requiring a buffer width of
taking. 5° The Court did establish one exception to from 75 to 150 feet; these ordinances have not been
this rule - if it is clear that the landowner purchased challenged in court. A brief analysis of the evolution
the property after the regulation that denies him or her of regulatory takings jurisprudence in Georgia follows
all economically viable use of the land was already below.
in place, then no compensation will be given.51 The
case was returned to the lower court to allow the State In 1975, the Georgia supreme court clarified
to identify background principles of nuisance and that governmental regulations are "subject to the
property law that would prohibit the landowner from constitutional prohibition against taking private
making his desired use of the property.52 property without just compensation."59 In the same
case,the court employed a balancing test that weighed
Also in Lucas, the Court noted specifically that the economic loss to the property owner against the
uses of property may be denied, regardless of the public benefits that the regulation provided in order
economic impact, if they constitute a public nuisance
in accordance with long-established principles of 53 Wenger and Fowler,supra note 12,at 36(2000).
common law. Since non-point source pollution may 54 Lucas v South Carolina Coastal Council,505 U.S. 1003,
constitute a public nuisance and riparian buffers are an 1020(1992).
effective way to prevent such pollution, buffers may 55 Lucas,505 U.S.at 1019n.8.Stream buffer regulations have
economic value elements that are both market and non-market;
47 Id. see infra, section entitled"Economic Considerations"for a full
48 Lucas v South Carolina Coastal Council,505 U.S. 1003 explanation of the economic value of coastal riparian buffers.
(1992). 56 Ga. Const. art.I, §1,para.I.
49 Id. at 1008-10. 57 Id.
50 Id.at 1015. 58 Pope v. City of Atlanta,240 S.E.2d 241,242(1977); Threatt
51 Id. at 1027. v Fulton County,266 Ga.466(1996).
52 Id. at 1031-32. 59 Barrett v.Hamby, 235 Ga.262,264(1975).
Protecting Riparian Buffers in Coastal Georgia: Management Options 17
to determine if the regulation constituted a taking (with one exception).67 Third, similarities exist
under the Georgia constitution.60 In 1986, the court between the federal concept of"distinct investment-
rearticulated the balancing test to be applied in backed expectations"in Penn Central and the Georgia
challenges to governmental regulations in Gradous concept of"vested rights," although there are some
v. Richmond County.61 First, the court established significant differences between the two concepts.68
the presumption that regulations are valid.62 Then, in
order to overcome that presumption,the claimant must The Georgia supreme court has defined vested
prove two things:(i)"significant detriment"caused by rights as "interests which it is proper for the state to
the challenged regulation; and (ii) an "insubstantial recognize and protect and of which [the] individual
relationship" between the challenged regulation cannot be deprived arbitrarily without injustice."69
and the public interest. If both prongs are met, the Georgia's vested rights doctrine is among the most
court will then balance the economic detriment to the liberal in the nation, requiring consideration and
property owner against the public interest advanced caution by government regulators. Georgia has
by the regulation. 63 adopted the minority rule regarding vested rights,
holding that a landowner's right to develop his land
In Parking Association of Georgia, Inc. v. City of "vests" and he is entitled to a building permit when
Atlanta,64 the City ofAtlanta enacted a comprehensive he makes "substantial investments in his land in
regulation requiring landscaping in surface parking reliance upon an existing ordinance and the assurance
lots that had been cited by the city for environmental of zoning officials."70 This is the case regardless of
and aesthetic problems. The parking lot owners whether a regulation that would prohibit the activity
claimed the regulation violated the State takings for which the building permit is sought is passed after
clause. The court applied the Gradous test to the any substantial investments and/or assurance from a
regulation and found that while the claimants would zoning official occurs. In order to ensure that they do
experience profit losses and costs if they complied, not violate the vested rights doctrine when enacting
this value diminution did not constitute the required riparian buffer ordinances, local governments in
"significant detriment." The court also found, "the Georgia should take several precautions. First,
means adopted have a real and substantial relation to localities should provide ample public notice during
the goals to be obtained" and upheld the regulation.65 the ordinance adoption process. Local governments
should also consider placing a moratorium on
There are several differences between the State and encroachments into the proposed buffer area during
federal analyses for regulatory takings. In Georgia, a the ordinance development process so as to cut down
finding of a "significant detriment" does not require on the number of vested rights claims. Finally, the
the total or nearly total loss of the property's value in ordinance should clearly state that it does not apply
order to meet the state takings test. Instead,a severely to landowners that receive a building permit and/or
detrimental loss in value is sufficient.66 Second, in other assurances from zoning officials before the
Georgia, monetary compensation for regulatory ordinance's effective date.
takings is not authorized if a court holds a taking has
occurred; invalidation of the regulation is sufficient Only two state takings cases specifically address
whether a riparian buffer regulation constitutes a
60 Id.
67 Id.at 11. The exception is if the government acts in con-
61 256 Ga.469(1986). tempt of court after being ordered to rescind the unlawful regu-
62 Id. at 470. lation. A line of three cases clearly establishes this principle:
Fulton County v. Wallace,260 Ga. 358 (1990), Cobb County v.
63 Id. at 471. McCollister,261 Ga. 876(1992)and Alexander v. Dekalb Co.,
64 264 Ga.764(1994),cert. den. 115 S.Ct. 2268. 264 Ga. 362(1994).
65 Id. 68 Zoeckler,supra note 66 at 11.
66 Zoeckler,Robert L.,A Summary of Takings Law 10(1997) 69 Fortson v. Weeks,208 S.E.2d 68(Ga. 1974).
(on file with author). 70 Barker v. Forsyth Co.,281 S.E.2d 549(Ga. 1981).
18 Protecting Riparian Buffers in Coastal Georgia:Management Options
taking under the state or federal constitution. In both be left undisturbed for a distance of fifty feet from
cases, the riparian buffer regulations were upheld the banks of the Chattahoochee River and prohibited
as constitutional. In Pope v. City of Atlanta, Pope construction of impervious surfaces within 150 feet
wished to build a tennis court on the rear portion of of the river's banks.75 The Georgia supreme court
her property bordering on the Chattahoochee River.71 rejected the claim that the buffer regulation constituted
The City of Atlanta issued a stop work order claiming a taking under the state and federal constitutions,
that at least part of the tennis court was within 150 holding that,"there has been no showing that the buffer
feet of the river and that construction of the tennis area or any other applicable regulation has deprived
court violated the Metropolitan Rivers Protection the [landowners] of any or all economically viable
Act.72 The case went to the Georgia supreme court or beneficial use of their property."76 Referencing
where the court concluded: "the River Act does not ParkingAssociation, the court went on to state,"nor is
constitute zoning within the definition set out in the this a situation in which it can be argued that fairness
Georgia Constitution...but instead falls within the and justice dictate that the burden imposed by the
reserved powers [police powers] of the State to act, regulation be borne by the public as a whole."77
along with local governing authorities, with regard
to the water system, as is set out in the purpose of Private property is a core constitutional concept
the River Act."73 This case clearly establishes that in this country. Therefore it is not surprising that
environmental regulations, such as riparian buffer governmental interaction with private property rights
ordinances, are a valid exercise of the police power. can create controversy. But private property rights
have always been tempered by the needs of the
Threatt v. Fulton County, the second case involving general public.78 As Justice Scalia stated in Lucas,
riparian buffers that has been litigated in Georgia, "[T]he property owner necessarily expects the uses
involves another challenge to the buffer requirements of his property to be restricted from time to time,
of the Metropolitan River Protection Act (MRPA).74 by various measures newly enacted by the State in
TheAtlanta Regional Commission adopted a regulation legitimate exercise of its police powers."79
pursuant to the MRPA that required a vegetated buffer
75 Id. at 468.
76 Id. at 470.
71 240 S.E.2d 241,242(1977). 77 Id.
72 O.C.G.A. § 12-4-440 et. seq. (2006). 78 Zoeckler,supra note 66,at 16.
73 240 S.E. 2d at 244(clarification added). 79 Lucas v. South Carolina Coastal Council,505 U.S. 1003,
74 266 Ga.466(1996). 1027 (1992).
Protecting Riparian Buffers in Coastal Georgia:Management Options 19
V. Economic Considerations For landowners, the most significant cost of the
ordinance is likely to be the loss of full use of the
land in the riparian buffer. For a developer, a buffer
As discussed above,many studies have demonstrated ordinance may slightly decrease the lot yield of a
that coastal riparian buffers have value in protecting property, especially in areas zoned at high density;
coastal marshes and tidal creeks from non-point for low-density areas, the buffers can usually be
source pollution. They also provide numerous other incorporated into the backside of individual lots,with
valuable benefits to coastal communities, such as little impact on yield. For owners of individual lots,
recreation, flood protection, and protection wildlife the limitation on use can also conceivably reduce
habitat and diversity. However, what are the actual property values,but this is likely offset by the positive
economic values of these benefits? And what are effects of improved aesthetics and recreational
the costs associated with implementing buffers opportunities discussed in the next section. Other
in a coastal community? While the current status costs include time spent delineating the riparian
of economic research on coastal buffers cannot buffer and completing necessary documentation to
provide full answers to these questions, there is some submit to the local government authority. Protecting
information available on the economic costs and the riparian buffer during construction might also add
benefits of coastal riparian buffers that can help local to construction costs.
governments make better decisions about protecting
buffers in their communities.
B. The Benefits
This section was first published in its original form
in Wenger and Fowler (2000). Information regarding The value of riparian buffer zones can be broken
the economic valuation of riparian buffers in coastal down into a number of components, some of which
areas was added to this material, and it is intended to are obvious and some of which are not. An obvious
provide a short summary of economic research on the value is that of the timber in a riparian zone that can
costs and benefits associated with preserving riparian be cut and sold.A less obvious value is the protection
buffers in coastal communities. No attempt is made of the scenic vista of the tidal marshes that the
to quantify the actual economic benefits or costs of vegetation of the riparian zone provides by shielding
buffers, because such an assessment is beyond the development from view. The obvious values are what
scope of this project. The purpose here is to show that economists call "market values" because we can
riparian buffers do have economic benefits, and these measure them in actual prices, while the less obvious
can be equal to or greater than the economic costs of ones are "nonmarket." They are real, but are harder
a buffer ordinance. to measure because they don't correspond to things
that are commonly bought and sold. It is important
A. The Costs to note that most of the actual costs of having buffer
ordinances relate to market values,while many of the
benefits are nonmarket. If these nonmarket values
The economic costs of a buffer ordinance are are ignored, people will tend to undervalue riparian
related to the costs of administration and the loss buffers,which can lead to poor protection and negative
of unrestricted use of properties. A buffer ordinance impacts on both the environment and the economy
imposes costs on a local government in the form of (Bollman 1984).
staff time, staff training,public education efforts, and
technical assistance to landowners and developers.
For most local governments, the greatest expense 1. The Value of Recreation and Tourism
is staff time (Herson-Jones 1995). Once a buffer Rivers, streams, lakes, coastal marshlands, and other
ordinance is established and integrated into the plan water bodies are natural magnets for recreational
review process, however, this cost should be low in activities and tourism. A protected riparian buffer
most cases.
acquired by the local government can serve as a
public park or greenway, a function with significant
20 Protecting Riparian Buffers in Coastal Georgia: Management Options
economic value. Of course, most buffers protected near seven restored streams in California were found
by an ordinance will remain in the ownership of to be 3 -13% higher than the values of similar homes
individuals, and it is usually not legal or desirable for located near unrestored streams. In Colorado, a study
a government to mandate access to these lands. Still, found that housing prices were 32% higher when the
these buffers can contribute positively to recreation houses were located adjacent to a buffer managed as
and tourism by improving water quality and by a greenbelt(Schueler 1997). In addition to increasing
protecting the aesthetics of stream corridors and community aesthetics so that property values increase,
scenic marsh vistas, both of which are important for buffers have also been found to increase property
water-based recreational activities. values due to the water quality services they provide.
A study of shoreline buffers on several lakes in Maine
Determining the economic value of stream and found that a difference of 3 feet in water clarity (i.e.
marshland recreation gives us an indication of the the ability to see an additional 3 feet deeper into the
value of riparian buffers. There are several ways to lake with the naked eye) resulted in an increase in
calculate this. the value of the adjacent shoreline property of$11 to
Using a method know as contingent valuation, $200 per foot of water clarity (Schueler 1997).
researchers asked visitors to a river preserve in Arizona
how much they would be willing to pay to ensure For a developer, a riparian buffer ordinance may
that there were adequate flows to maintain a healthy have the effect of requiring residential development
river system, which resulted in an estimated value projects to take the form of conservation subdivisions.
of $520,000 for the preserve (Crandall et al. 1992). That is, the property is subdivided in such a way that
Using another valuation method known as the travel individual lots are clustered together and a significant
cost method, the river preserve was valued based on area of riparian land is preserved in a natural state.
the amount of money and time visitors spent to visit Studies have shown that home buyers will pay more
it, which was estimated at $613,360. Finally, local to live in a well designed conservation subdivision
economic impact analysis determined that visitors than a traditional development (National Park
who came to the area specifically to visit the preserve Service 1995). In addition, clustering homes allows
contributed $88,240 to the local economy (Crandall the developer to save money on infrastructure costs,
et al. 1992). These methods have been used to value which itself can offset the costs of development.
parks in Georgia as well.Visitors to State parks spend Georgia developer Steve MacCaulay,who specializes
as much as $13.26 per visit(Bergstrom et al.1990). in conservation subdivisions, says that he can make
the same profits off of conservation subdivisions as
The value of buffers on the Georgia coast in protecting he can from conventional designs (1999).
the tourism, recreation and fishing industries is
significant considering the enormous contributions that 3. The Value of Clean Water
water-based tourism and recreation make to Georgia's In Georgia's coastal areas, water quality is extremely
coastal economy. Indeed, the National Association important for maintenance of the commercial and
of Regional Councils estimates that tourism provides recreational fish,shrimp,and shellfish industries. The
two billion dollars annually to the coastal economy in tourism industry,which depends on the availability of
Georgia(Guadagnoli et al. 2005). Recreational game water that is fishable and swimmable, is also affected
fishing alone contributes about$363 million annually significantly when water quality is degraded. One
and commercial fishing provides an additional $22 can estimate the value of clean water to Georgia's
million(Georgia Department of Natural Resources). coastal communities by examining the contribution
that the recreational and commercial fish, shellfish,
2. Property Value Increases and shrimp industries make to Georgia's economy.
A protected stream or river corridor is an aesthetic Based upon data compiled by the Coastal Resources
amenity that can increase property values in the nearby Division of the Georgia Department of Natural
community. In one study using a method known as Resources, over 6.8 million pounds of commercially
hedonic pricing, property values of homes located valuable fish, shellfish, and other organisms, valued
Protecting Riparian Buffers in Coastal Georgia: Management Options 21
at over$12.2 million,were harvested from Georgia's land along waterways and steering development
coastal waters in 2005 (Georgia Department of away from floodwaters, storm surges and extreme
Natural Resources 2006a). Over the last ten years high tides (Desbonnet et al. 1994). Specifically,
(1994-2004), an average of 10.8 million pounds of one study of ten programs from across the country
commercially valuable organisms was harvested per that protected floodplains from development found
year, for an average worth of$22.4 million (Georgia that land adjacent to such protected floodplain areas
Department of Natural Resources). increased in value by an average of$10,427 per acre
(Schueler 1997).
Another way to measure a buffer's water quality
services is to determine how much it would cost 5. The Value of Endangered Species&Other
to provide similar services using technological Wildlife
approaches. A study in Maryland determined that Riparian buffers in coastal settings have been shown
using riparian buffers and nonstructural controls to protect wildlife habitat for many species. The
was more cost-effective than engineered solutions wildlife-watching opportunities afforded by buffers
in reducing nutrient pollution by 40 percent. (Palone can increase property values. In one study,researchers
and Todd 1998). The city of Boulder, Colorado, found that about 60%of suburban residents engage in
decided that the services provided by Boulder Creek wildlife viewing near their homes,and a majority were
and its riparian zone were more valuable than those willing to pay a premium for homes located near areas
provided by a new nitrification tower, and chose to that attract wildlife (Schueler 1997). Threatened and
restore the stream system rather than to construct the endangered species have value to people even when
technological solution (National Park Service 1995). they provide no direct economic benefits. Economists
Riparian buffers can also eliminate the need for have used the contingent valuation method to
engineered stormwater management systems, which determine how much people are willing to pay to
can cost from $500 to $10,000 per acre (Palone and ensure that these organisms survive. Studies have
Todd 1998). shown that people will pay$3—$9 per year to preserve
habitat for relatively obscure nongame species such
4. The Value of Flood Protection as the Colorado Squawfish (Ptychocheilus lucius)
As discussed above, in coastal areas, riparian buffers and the Striped Shiner (Notropis chrysocephalus).
have been shown to reduce flooding by slowing They will pay considerably more ($30—$60 per year)
surface water runoff and spreading it over a wider for higher profile species such as the Chinook Salmon
area and by allowing more water to percolate into (Oncorhynchus tshwytscha) (Loomis and White
the water table (Rhode Island Program 1994; South 1996). One study found that Washington households
Carolina Department of Health and Environment would pay $73 per year to remove dams and restore
2002a). Buffers also have been found to mitigate the Elwha River to improve salmon populations
property destruction by maintaining undeveloped (Loomis 1998).
22 Protecting Riparian Buffers in Coastal Georgia: Management Options
VI. Conclusion sedimentation problems to protect Georgia's waters
and meet federal water quality standards, there is
overwhelming evidence that more work that needs
As the population of Georgia's coastal region continues to be done to protect the state's invaluable coastal
to thrive and grow, the development pressures that resources from non-point source pollution. As a result,
accompany this population increase are beginning to in January 2007,the Board of the Georgia Department
threaten the very resources that attract people to the of Natural Resources adopted a resolution regarding
region– Georgia's abundance of undisturbed coastal non-point source pollution control in coastal Georgia.
marshlands and its tidal ecosystem. As Georgia's The resolution finds that the increasing impairment
coastal communities look toward the future, tools of water resources from non-point source pollution
such as riparian buffer ordinances are becoming is evidence that "current state statutes and rules, and
increasingly important for protecting the scenic local ordinances and practices intended to prevent
value of Georgia's marshes, the state's coastal fish non-point source pollution are not effective in many
and shellfish industries, and private property, from areas of the state." The Board goes on to note that
the unwanted effects of development. Increased riparian buffers are known to be effective tools in
levels of development on the coast have begun to add preventing non-point source pollution, and it requests
large amounts of impervious cover, such as parking the state Environmental Advisory Council (EAC)
lots, rooftops, and roadways, and semi-pervious conduct a review of current statutes, regulations
cover, such as compacted lawns and unpaved and programs aimed at controlling non-point source
driveways, to the landscape. These surfaces generate pollution. Furthermore, in conducting its review, the
increased levels of stormwater runoff which delivers Board requests that the EAC pay specific attention to
numerous types of pollutants—such as oil,biological the use of"riparian buffers, impervious surfaces, and
contaminants and excess nutrients—to marshes and storm water management practices."
creeks. As this report has shown, recent scientific
research indicates that riparian buffers play a crucial
role in protecting our waters from the effects of NPS As the state begins to focus on riparian buffers as a
pollution by acting as filters and removing pollutants primary tool to curb non-point source pollution in
before they enter our waterways. Furthermore, as our Georgia's coastal region, local governments along
scientific understanding of the benefits and functions the coast can enhance and further state efforts by
of riparian buffers in coastal Georgia continues to implementing their own coastal riparian buffer
grow, scientists and other experts will be able to make ordinances. By working together, Georgia's state
recommendations for protecting buffers that are more and local governments can ensure a bright future for
effective and successful at protecting these important Georgia's coastal region, one in which the economic
resources. and social benefits of development go hand-in-hand
with conservation of the unique natural resources that
While Georgia legislators have already recognized this region has to offer.
the value of buffers in addressing erosion and
Protecting Riparian Buffers in Coastal Georgia: Management Options 23
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Buffer Ordinances. Columbia, South Carolina: SC
DHEC-OCRM. http://scdhec.gov/environment/
ocrm/pubs/docs/Buffer_Ord.pdf
Protecting Riparian Buffers in Coastal Georgia: Management Options 27
Appendix A: Model Coastal Riparian Buffer Ordinance for
Georgia's Local Governments
Guidance & Recommendations
Although several model riparian buffer ordinances have been developed for Georgia's local governments,
these models were crafted with freshwater ecosystems in mind and do not take into account the unique
resources and issues facing the tidally influenced ecosystems of Georgia's coastal communities. Therefore,
there is a need for a model riparian buffer ordinance that meets the specific needs of local governments
along Georgia's coast.
In working with local governments in Georgia's coastal region and in other areas of the State, several issues
and points of confusion regarding riparian buffers have arisen. Below are clarifications regarding three
common points of confusion about the role of local governments in maintaining and protecting riparian
buffers in light of the 25-foot buffer required by the state Erosion and Sedimentation Control Act. The
fourth section is a description of buffer averaging, an optional tool available to local governments for setting
buffer width that has been incorporated into this Model Ordinance. The fifth section is an explanation of the
buffer encroachment permit, which is a new permit introduced in the Model Ordinance.
1. Local regulation of activities in the statewide 25-foot riparian buffer.
Within the 25 ft. riparian buffer established along state waters under the Georgia Erosion and Sedimentation
Control Act of 1975 (E&S Act), the Georgia Environmental Protection Division(EPD)has the primary
authority to approve or deny a variance request for intrusion into the buffer. In addition, local governments
in Georgia that have been certified as local issuing authorities under the E&S Act retain some decision-
making authority regarding variance requests in the 25-foot buffer. Op.Att'y Gen. No. 90-40 (1990).
The shared state-local responsibility for issuing variances in the state 25-foot buffer works in the following
way. The EPD receives all variance requests and first decides whether to deny or issue the variance. If EPD
denies a variance request, a local issuing authority with jurisdiction over the property may not issue its own
variance and no intrusion into the 25-foot buffer is permitted. However, if EPD issues a variance allowing
intrusion into the 25-foot buffer, the local issuing authority has two options: it may allow encroachment into
the 25-foot buffer pursuant to the EPD variance, or it may disallow intrusion by issuing a land disturbance
permit without allowing for intrusion into the 25-foot buffer. The Georgia Dept. of Natural Resources
regulations state it this way:
If a variance issued by the [EPD] Director is acceptable to the [local] issuing
authority,the variance shall be included as a condition of permitting and therefore
becomes a part of the permit for the proposed land disturbing activity project.
If a stream buffer variance is not acceptable to the issuing authority,the issuing
authority may issue a land disturbing permit without allowing encroachment
into the buffer. Ga. Comp. R. & Regs. § 391-3-7-.05(8) (2006).
2. Minor Landscaping Activities.
The Erosion and Sedimentation Control Act of 1975 allows for minor land disturbing activities such as
home landscaping and gardening within the state 25 ft. buffer through an exemption. No variance request is
28 Protecting Riparian Buffers in Coastal Georgia: Management Options
necessary to engage in these activities. However,because the model coastal buffer ordinance intends to
protect riparian lands from environmental degradation beyond the purpose of erosion and sedimentation
control, its stricter requirements likely fall within the purview of the savings clause in the E&S Act's best
management practices provision. This clause states that"nothing shall prevent a local government from
adopting...ordinances...which contain stream buffer requirements that exceed the minimum requirements
of[the E&S Act]." O.C.G.A. §12-7-6(c) (2006). Furthermore, it is likely within the "home rule"
powers of local governments to regulate landscaping activities. The Home Rule clause of the Georgia
Constitution gives local governments wide "legislative power to adopt clearly reasonable ordinances,
resolutions, or regulations relating to its property, affairs, and local government for which no provision
has been made by general law." Ga. Constit.Art. IX, Sec. 2, para. 1. Regulating landscaping activities
most likely falls within the boundaries of this wide grant of authority of a local government to regulate its
property and affairs.
3. Buffers in areas where bulkheads exist.
Local governments may require maintenance of buffers in areas where bulkheads exist. As explained
above, because the model coastal buffer ordinance intends to protect riparian lands from environmental
degradation beyond the purpose of erosion and sedimentation control, any stricter requirements likely fall
within the purview of the savings clause in the E&S Act's best management practices provision. O.C.G.A.
§12-7-6(c) (2006). Therefore, regardless of whether the state 25-foot buffer applies to areas in which
bulkheads exist, local governments have the ability to require buffers in these areas through adoption of
multi-purpose riparian buffer ordinance.
4. Buffer averaging.
Providing local governments with a flexible method for delineating riparian buffer width is important for
creating a successful ordinance. Often, cases will arise in which it is necessary or ecologically defensible
to reduce the buffer width at certain points. This was addressed in the model ordinance by including
an optional buffer averaging provision. Buffer averaging is a system that allows for a reduction of the
buffer's width at a certain point or points within a single parcel so long as the average buffer width across
the entire parcel is the minimum width required by the ordinance. In any case, buffer averaging may not
be used to reduce the buffer at any one point to less than the 25-foot State-mandated buffer.
Buffer averaging is incorporated into the attached ordinance in Section 5, "Buffer Encroachment Permits."
It is recommended that buffer averaging not be used when the width of the buffer is less than 75 feet,
because it may result in an unacceptably narrow buffer at a certain point or points within a single parcel.
It is essential to clearly establish the conditions under which a buffer encroachment permit for buffer
averaging may be issued.A buffer encroachment permit for buffer averaging should be considered in two
cases:
a)When the width of the buffer as related to the size and shape of the parcel results in a situation
in which it is impossible for the property owner to make reasonable economic use of the portion of
the parcel not in the buffer. The buffer should be reduced only as much as necessary to allow for
reasonable activity, and never less than 25 feet.
b)When the width of the buffer as related to the size and shape of the parcel results in a situation
in which it is impossible for the property owner to construct a single family dwelling on the
portion of the parcel not in the buffer. The buffer should be reduced only as much as necessary to
allow for reasonable activity, and never less than 25 feet.
Protecting Riparian Buffers in Coastal Georgia: Management Options 29
5. Buffer encroachment permit.
Under the Model Ordinance, a landowner should apply for a buffer encroachment permit when he or
she desires to encroach into the buffer for the purpose of placing an accessory structure to a residential
dwelling, such as a deck, in the buffer. Use of the buffer encroachment permit is also appropriate when
the landowner wishes to use buffer averaging.
The buffer encroachment permit and the ordinance's variance procedure are intended to be used for two
separate situations. If the landowner wishes to encroach for a purpose other than use of buffer averaging
or placement of an accessory structure to a residential dwelling in the buffer, use of the variance
procedure is the appropriate method.
30 Protecting Riparian Buffers in Coastal Georgia: Management Options
Model Coastal Riparian Buffer Ordinance for Georgia's Local
Governments
Description
This model ordinance provides a framework for local governments to establish buffer zones for
streams, lakes, coastal marshlands, and freshwater wetlands as well as the requirements that minimize
land development within those buffers. It is the purpose of these buffer zone requirements to protect
and stabilize stream banks, prevent sedimentation of coastal water resources, protect water quality for
important nursery areas for fisheries, and preserve aquatic and riparian habitat.
Note
All bulleted text with this symbol > and in italics should be interpreted as comments, instructions, or
information to assist the local government in tailoring the ordinance. This text would not appear in a final
adopted ordinance.
Section 1. Intent and Purpose
1) The rivers, streams, wetlands, and coastal marshlands constituting the riparian lands of[local
government] are a significant natural resource and are essentially linked to [local government]'s
economy. The [Board of Commissioners/City Council] recognizes that these lands provide numerous
benefits and are vital to the health, safety and economic welfare of its citizens. The [Board of
Commissioners/City Council] finds that buffers adjacent to these lands provide substantial benefits
including:
a) Minimizing activities that degrade, destroy or otherwise negatively impact the value and function
of coastal marshlands;
b) Maintaining stream and river water quality;
c) Trapping sediment and other pollutants found in surface runoff;
d) Promoting bank stabilization and reducing erosion;
e) Protecting terrestrial coastal habitat for nesting and feeding wildlife;
f) Reducing the impact of flooding by increasing floodwater storage areas;
g) Enhancing the marshlands' scenic value and recreational opportunities;
h) Protecting property values of individual landowners; and,
i) Protecting and restoring greenspace and the natural character of the coastal region; and
j) Protecting important nursery areas for fisheries, which provide food and habitat to numerous
species of fish and shellfish, including commercially important species.
2) It is therefore the purpose and intent of this ordinance to establish a coastal riparian buffer zone of
restricted development and limited land use adjacent to coastal streams, rivers, marshes and wetlands.
The purposes of this coastal riparian buffer zone are to:
a) Protect the public health, safety, environment and general welfare of the citizens of[local
government];
b) Minimize public and private land loss due to erosion, sedimentation, and water pollution;
c) Maintain water quality for human use and for protecting the important nursery areas for fisheries,
which provide food and habitat to numerous species of fish and shellfish, including commercially
important species;
d) Protect terrestrial coastal habitat for nesting and feeding wildlife;
Protecting Riparian Buffers in Coastal Georgia: Management Options 31
e) Reduce the impact of flooding by increasing floodwater storage areas;
f) Protect the natural and native vegetation in the zone;
g) Protect the coastal region's visual character and unique natural resources; and,
h) Avoid land development within such buffers by establishing buffer zone requirements and by
requiring authorization for any land disturbing activities.
3) The standards and regulations set forth in this ordinance are created under the authority of the
[local government]'s Home Rule and zoning powers defined in Article IX, Section 2 of the Georgia
Constitution.
Section 2. Definitions
"Access path"means a pervious path designed, constructed, and maintained pursuant to the "Coastal
Riparian Buffer Guidance Manual"that provides for access to water dependent uses through the buffer
and takes the route that impacts the natural vegetation of the buffer to the least extent possible.
"Buffer encroachment permit"means the permit issued by [local government] and required to undertake
certain buffer encroaching activities as described in Section 4 herein.
"Coastal marshland" or"marshland"means any marshland intertidal area, mud flat, tidal water bottom,
or salt marsh within the estuarine area of the [local government] whether or not the tidewaters reach the
littoral areas through natural or artificial watercourses. "Vegetated marshlands" shall include those areas
upon which grow one,but not necessarily all, of the following: salt marsh grass (Spartina alterniflora),
black needlerush (Juncus roemerianus), saltmeadow cordgrass (Spartina patens), big cordgrass (Spartina
cynosuroides), saltgrass (Distichlis spicata), coast dropseed(Sporobolus virginicus), bigelow glasswort
(Salicornia bigelovii), woody glasswort(Salicornia virginica), saltwort (Batis maritima), sea lavender
(Limonium nashii), sea oxeye (Borrichia frutescens), silverling (Baccharis halimifolia), false willow
(Baccharis angustifolia), and high-tide bush (Iva frutescens). The occurrence and extent of salt marsh peat
at the undisturbed surface shall be deemed to be conclusive evidence of the extent of a salt marsh or a part
thereof. Coastal Marshlands Protection Act, O.C.G.A. § 12-5-282.
"Coastal riparian buffer" or"buffer"means, on any given parcel of land, a natural or enhanced vegetated
area of riparian land lying adjacent to a stream, pond, impoundment, wetland, or coastal marshland.
"Estuarine area"means all tidally influenced waters, marshes, and marshlands lying within a tide-
elevation range from 5.6 feet above mean tide level and below. Coastal Marshlands Protection Act,
O.C.G.A. § 12-5-282.
"Impervious cover"means a surface composed of any material that greatly impedes or prevents the
natural infiltration of water into soil. Impervious surfaces include, but are not limited to, rooftops,
buildings, streets and roads, except those designed specifically to allow infiltration.
"Impoundment"means any lake,pond, or other body of freshwater.
"Land disturbing activity"means: (1) any installation of impervious cover; (2) any grading, scraping,
excavating or filling of land; (3) any construction, rebuilding or significant alteration of a structure that
damages or destroys vegetation; (4) any other activity that destroys vegetation in the buffer.
32 Protecting Riparian Buffers in Coastal Georgia: Management Options
"Land disturbance permit"means the permit issued by[EPD or local government] pursuant to the
Georgia Erosion and Sedimentation Control Act and required for undertaking any land disturbing activity.
"Littoral area" means the tidal area between the high water and low water marks.
"Native vegetation"means vegetation that is naturally found in the area and is listed in the native
vegetation list found in the "Coastal Riparian Buffer Guidance Manual."
"Person"means any individual, partnership, firm, association,joint venture,public or private corporation,
trust, estate, commission, board,public or private institution, utility, cooperative, state agency,
municipality or other political subdivision of this State, any interstate body or any other legal entity.
"Riparian land"means any land along the edge of a stream, wetland, coastal marshland, pond or
impoundment.
"Stream" means any freshwater stream,beginning at: (1) the location of a spring, seep or groundwater
outflow that sustains streamflow; or(2) a point in the stream channel with a drainage area of 25 acres or
more; or(3) a point in a stream channel with a drainage area of less than 25 acres, if evidence from field
studies required by the [local government] verify the existence of a stream.
"Wetland"means those areas, which are not coastal marshlands, that are inundated or saturated by surface
or groundwater at a frequency and duration sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for life in saturated soil. Ga. Comp. R. &Regs.
r.391-3-16-.03 (2006).
Section 3. Applicability
This ordinance shall apply to all land disturbing activity on property containing a coastal riparian buffer.
These requirements are in addition to, and do not replace or supersede, any other applicable buffer
requirements established under state law. Approval or exemption from these requirements does not
constitute approval or exemption from buffer requirements established under state law or from other
applicable local, state or federal regulations.
3.1. Grandfather Provisions
This ordinance shall not apply to the following activities:
1) Existing development and land disturbance activities as of[the effective date of this ordinance] except
that new development or new land disturbing activities on such properties will be subject to all
applicable buffer requirements.
2) Any land disturbing activity that is scheduled for permit approval or has been submitted for approval
as of[the effective date of this ordinance.]
3) Land disturbing activity that has not been submitted for approval, but that is part of a larger master
development plan, such as for an office park or other phased development and that has been previously
approved within one year of[the effective date of this ordinance.]
After [the effective date of this ordinance], this Ordinance shall apply to all new subdividing and platting
activities.
Protecting Riparian Buffers in Coastal Georgia: Management Options 33
3.2. Exemptions
> It is recommended that the seven exemptions listed below be adopted as part of the local government's
ordinance because similar exemptions exist in the Georgia Erosion & Sedimentation Control Act. In
Georgia, a local law regulating a particular subject or issue is preempted by a state law that
regulates
that same subject or issue (unless the state law explicitly allows for local laws on the subject) . Ga.
Constit. art. III, sec. VI,para. IV(a). Therefore, if the local law conflicts with the state law, then state
law prevails. In this instance, the state law establishing the 25 foot buffer exempts certain activities.
Therefore, any local law regulating activities in the 25 foot buffer should contain those same
exemptions
in order to avoid preemption by the way of conflict. A local government could, most likely, disallow
these
exemptions in areas of the buffer beyond the first 25 feet without facing the risk of preemption by state
law since the state does not regulate activities in buffers beyond 25 feet.
The following specific activities are exempt from this Ordinance:
1) Public sewer line easements paralleling the stream, lake, impoundment, wetland, and/or coastal
marshlands, except that all easements (permanent and construction) and land disturbance should be at
least
25 feet from the mean high water line in coastal marshlands and wetlands or the top of the bank for
streams, lakes, and impoundments. This includes such impervious cover as is necessary for the
operation
and maintenance of the utility, including but not limited to manholes, vents and valve structures. This
exemption shall not be construed to allow the construction of roads, bike paths, or other transportation
routes in such easements, regardless of the type of paving material used.
2) Land disturbing activities by governments within a road right of way existing at the time this ordinance
takes effect, or approved under the terms of this ordinance. Development activities are only allowed if
they
cannot reasonably be located outside the buffer.
3) Land disturbing activities within utility easements existing as of the effective date of this ordinance or
approved under the terms of this ordinance when necessary for the operation and maintenance of the
utility, including but not limited to manholes, vents and valve structures.
4) Emergency maintenance and repairs necessary to preserve life and/or property. However, when
emergency work is performed under this section, the person performing it shall report such work to the
[local government] as soon as possible and within 24 hours of the commencement of the work. Within
ten(10) days thereafter, the person shall apply for a variance and perform such work within such time
period as may be determined by the [local government] to be reasonably necessary to correct any
impairment such emergency work may have caused to the water conveyance capacity, stability or water
quality of the protection area.
6) Forestry and silviculture activities on land that is zoned for forestry, silvicultural or agricultural uses,
provided these activities are not incidental to other land disturbing activity and are conducted using
applicable best management practices. If such activity results in land disturbance in the buffer that
34 Protecting Riparian Buffers in Coastal Georgia: Management Options
would
otherwise be prohibited, no land disturbing activity other than normal forest management practices will
be
allowed on the entire property for three years after the end of the activities that intruded on the buffer.
7) Stream crossings for water lines or stream crossings for sewer lines, provided that they occur at an
angle, as measured from the point of crossing, within 25 degrees of perpendicular to the stream; cause
a
width of disturbance of not more than 50 feet within the buffer; and adequate erosion control measures
are
incorporated into the project plans and specifications and are implemented.
> Menu of Options: The following list is a menu containing possible exemptions that local
governments
may wish to include in its ordinance depending on the community's needs and desires.
1) Activities for the purpose of constructing public water supply intake or public wastewater outfall
structures, when designed, constructed and maintained pursuant to the "Coastal Riparian Buffer
Guidance
Manual."
2) Activities to restore and enhance stream bank stability, vegetation, water quality, and/or aquatic habitat,
when designed, constructed and maintained pursuant to the "Coastal Riparian Buffer Guidance
Manual."
> See the "Coastal Riparian Buffer Guidance Manual" for a list of native vegetation and
bioengineering techniques.
3) Any trimming or pruning of vegetation for the purpose of creating a keyhole view corridor and/or
access
path and conducted in accordance with the "Coastal Riparian Buffer Guidance Manual." This
exemption
shall not allow for the removal of trees.
4) Creation of an access path to water-dependent uses through the buffer when designed, constructed and
maintained pursuant to the "Coastal Riparian Buffer Guidance Manual."
5) Structural maintenance and repair(not replacement or enlargement) of any damaged structure that
existed
in the buffer as of the effective date of this ordinance,provided the repair is less than fifty (50)percent
of the value of the structure, as determined by a local building inspector and is constructed and
designed
pursuant to the "Coastal Riparian Buffer Guidance Manual."
Section 4. Standards and Regulations
All land disturbing activity that is not exempt from this Ordinance pursuant to subsection 3.2 above, shall
meet the following requirements:
Protecting Riparian Buffers in Coastal Georgia: Management Options 35
1) A buffer shall be maintained for a minimum of 75 feet along both banks of streams and along all
impoundments, as measured from the top of the bank of the stream or impoundment.All land disturbing
activity is prohibited within the 75 foot buffer unless a variance or buffer encroachment permit is granted
pursuant to Section 4.3 or Section 4.4 below.
2) A buffer shall be maintained for a minimum of 75 feet along all coastal marshlands, measured
horizontally
from the estuarine area.All land disturbing activity is prohibited within the 75 foot buffer unless a
variance
or buffer encroachment permit is granted pursuant to Section 4.3 or Section 4.4 below.
3) A buffer shall be maintained for a minimum of 75 feet along all wetlands as measured from the inland
edge of the wetland. All land disturbing activity is prohibited within the 75 foot buffer unless a variance
or
buffer encroachment permit is granted pursuant to Section 4.3 or Section 4.4 below.
> Buffer widths used in this ordinance model are intended as minimums. Local governments are
encouraged to adopt wider buffers as necessary to receive the benefits of other buffer services such
as increased sediment and pollutant removal, general wildlife and avian habitat,floodwater control,
recreational and aesthetic benefits and protection of commercially important fish and shellfish.A
description of recommended buffer widths for each of these services is available in the attached
document entitled "Protecting Riparian Buffers in Coastal Georgia:Management Options. "
4) No septic tanks or septic tank drain fields shall be permitted within the buffer.
5) The establishment of a manicured lawn shall not be permitted in the buffer.
6) The application of herbicides shall not be permitted in the buffer.
> Menu of Options: The following is an optional provision that a local government may choose to
adopt
in addition to the above standards and regulations. This provision establishes a variable-width buffer.
7) A buffer shall be maintained for feet along all high value areas. High value areas include [those
designated by the local government].
> Under a variable width buffer ordinance, the local government requires a wider buffer adjacent to
aquatic areas that the local government designates as having high value. In all other areas, the buffer
width is set by Section 4 (1), (2), and(3) above. Examples of areas that a local government may wish to
designate as high value include: small, headwater tidal creeks that have high value as nursery grounds
for fish and shellfish in certain seasons; oyster habitat; endangered species habitat and; streams or
creeks listed on the Clean Water Act§303(d) list for non-compliance with water quality standards
(other
than sediment). The width of the buffer in high value areas is determined by the local government.
Please refer to the document entitled "Protecting Riparian Buffers in Coastal Georgia:Management
Options, "for suggested buffer widths.
36 Protecting Riparian Buffers in Coastal Georgia: Management Options
Section 5. Buffer Encroachment Permit
5.1 General
1) No person shall conduct any land disturbing activity within the coastal riparian buffer without first
obtaining a buffer encroachment permit from the [local government] to perform such activity.
2) Buffer encroachment permits may be issued by the [local government] only if the land disturbing
activity
constitutes one of the following activities:
> Menu of Options: The following is a list of options from which a local government may choose
when
determining the activities for which it wishes to require citizens to obtain a buffer encroachment
permit.
a) construction of a porch, deck,boardwalk, or similar structure that is an accessory use to a
residential dwelling, constructed and designed in accordance with the "Coastal Riparian Buffer
Guidance Manual";
> For boardwalks that will extend into the coastal marshlands, landowners must first receive a
permit or license, whichever is applicable,from the Coastal Marshlands Protection
Committee
before applying for a buffer encroachment permit.
b) any other land disturbing activity that results in a reduction in buffer width over a portion of a
parcel, in exchange for an increase in buffer width elsewhere on the same parcel,provided that the
average buffer width on the entire parcel is 75 feet and the buffer width at any given point on the
parcel is not less than 25 feet.
3) The following factors will be considered in determining whether to issue a permit:
a) whether the buffer encroachment will result in a reduction of the quality of the water exiting the
parcel, or a diminishment of a uniform coastal marshland scenic vista;
b) whether the proposed development in the buffer will be conducted in accordance with all design
guidelines, low impact development techniques, and other guidance found in the "Coastal Riparian
Buffer Guidance Manual;"
c) whether the proposed intrusion into the buffer is the minimum intrusion necessary to accomplish
the purpose of the intrusion;
d) whether a feasible alternative design exists that would result in no intrusion into the buffer;
e) when the permit is sought pursuant to subsection 5.1 (d), whether the width of the buffer as related
to the size and shape of the parcel results in a situation in which it is impossible for the property
owner to make reasonable economic use of the portion of the parcel not in the buffer; and
f) when the permit is sought pursuant to subsection 5.1 (d), whether the width of the buffer as related
Protecting Riparian Buffers in Coastal Georgia: Management Options 37
to the size and shape of the parcel results in a situation in which it is impossible for the property
owner to construct a single family dwelling on the portion of the parcel not in the buffer.
5.2 Application Requirements and Procedures
1) The application for a buffer encroachment permit shall be submitted to the [local government] and must
include the following:
a) A site plan showing:
• The location of all riparian lands on or immediately adjacent to the property;
• Identification of any streams found on the Clean Water Act § 303(d) list that are adjacent to the
property;
• Boundaries of the riparian buffer, as described by Section 4 of this Ordinance, on the property;
• Buffer zone topography with contour lines at no greater than five (5)-foot contour intervals;
• Delineation of forested and open areas in the buffer zone; and,
• Detailed plans of all proposed land development and land disturbing activity on the site;
b) A description of any potential development impact on the buffer and how it will be avoided;
c) Any other documentation that the [local government] may reasonably deem necessary for review of
the application and to insure that the coastal riparian buffer ordinance is addressed in the approval
process; and
d) Payment of the application fee of
2) The coastal riparian buffer shall be clearly delineated on all development plans and plats submitted for
buffer encroachment permit approval and buffer limits must be staked in the field in a manner approved
by the [local government] before and during construction with posted signs that describe allowable
activities. Buffer boundaries shall be printed on all development and construction plans,plats, and
official
maps.
3) All buffer areas must be recorded on the final plat of the property following plan approval.
4) Within [ten] working days of receiving an application for a permit, the [planning department or public
works department] shall review it for completeness and notify the public of the application by placing a
notice [on its website or in a local newspaper]. If the [planning department or public works department]
finds that the application is incomplete, it shall within such [ten] day period, send to the applicant a
notice
of the specific ways in which the application is deficient, with appropriate references to the applicable
sections of this ordinance.
5) The [planning department or public works department] shall process all buffer encroachment permit
applications within [thirty] business days of the [planning department or public works department]'s
actual
receipt of a completed application and a permit fee. The [planning department or public works
department] shall give notice to the applicant of its decision by hand delivery or by mailing a notice,
by Certified Mail, Return Receipt Requested, to the address on the permit application on or before the
[thirtieth] business day after the [planning department or public works department]'s receipt of the
38 Protecting Riparian Buffers in Coastal Georgia: Management Options
completed application. If the jurisdiction fails to act within the [thirty day] period, the permit shall have
been deemed to have been granted.
6) In the event the [planning department or public works department] determines that all requirements for
approval have not been met, it shall promptly notify the applicant of such fact and shall automatically
deny
the permit.
7) An individual whose permit application has been denied or a permittee whose permit has been
revoked may appeal the decision of the [planning department or public works department] to the
[County
Commission/City Council] provided that they file written notice of an appeal with the [County/City
Clerk] within [fifteen] business days of the [local government]'s decision. Such appeal shall be
considered
by the [County Commission/City Council] at the next [County Commission/City Council] meeting held
after the [county/city's] receipt of the written notice of appeal,provided that notice of appeal is received
by the [County Commission/City Council] a minimum of[five] full business days before the meeting.
In the event an individual whose permit has been denied or revoked is dissatisfied with the decision of
the
[County Commission/City Council], they may petition for writ of certiorari to the [superior court] as
provided by law.
8) The [planning department or public works department] shall inspect each lot for which a permit for a
new
land disturbing activity or for modification of an existing land disturbing activity is issued. This
inspection
shall occur on or before [six months] from the date of issuance of such permit.
a) If the land disturbing activity is not complete within [six months] from the date of issuance, the
permit shall lapse and become void. No refunds will be made for permit fees paid for permits that
expired due to failure to engage in the land disturbing activity. If later, an individual desires to
continue land disturbing activities at the same location, a new application must be processed and
another fee paid in accordance with the fee schedule applicable at such time.
b) If the land disturbing activity is substantially complete, but not in full compliance with this
ordinance the [planning department or public works department] shall give the applicant notice
of the deficiencies and shall allow an additional [thirty days] from the date of inspection for the
deficiencies to be corrected. If the deficiencies are not corrected by such date, the permit shall
lapse and become void.
Section 6. Inspection
The [planning department or public works department] or its authorized representative may inspect
on-going work in the buffer to be made periodically during the course thereof and shall make a final
inspection following completion of the work. The landowner shall assist the [planning department
or public works department] or authorized representative in making such inspections. The [planning
department or public works department] shall have the authority to conduct such investigations as it
may reasonably deem necessary to carry out its duties as prescribed in this Ordinance, and to enter at a
Protecting Riparian Buffers in Coastal Georgia: Management Options 39
reasonable time upon any property,public or private, for the purpose of investigating and inspecting the
sites of any land disturbing activities within the buffer protection area.
No person shall refuse entry or access to any authorized representative or agent who requests entry for
purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or
interfere with any such representative while in the process of carrying out official duties.
Section 7. Variance Procedure
Variances from the above buffer requirements may be granted in accordance with the following
provisions:
1) Where a parcel was platted prior to the effective date of this ordinance, and its shape, topography, or
other existing physical condition prevents land disturbing activity consistent with this ordinance, and
such
land disturbing activity cannot be authorized through issuance of a buffer encroachment permit, the
[local
government] may grant a variance that shall allow a reduction in buffer width only to the extent
necessary
to provide relief from the conditions which prevented land disturbing activity on the parcel, provided
adequate mitigation measures are implemented by the landowner to offset the effects of such variance.
2) Variances shall not be considered when:
a) following adoption of this ordinance, actions of any property owner of a given property have
created conditions of a hardship on that property; or
b) the owner previously applied for a buffer encroachment permit that was denied by [the local
government].
The buffer encroachment permit and the variance procedure are intended to be used for two
separate situations. A landowner should apply for a buffer encroachment permit when he or
she desires to encroach into the buffer for the purpose of placing an accessory structure to a
residential dwelling, such as a deck, in the buffer Use of the buffer encroachment permit is
also
appropriate when the landowner wishes to use buffer averaging. However, if the landowner
wishes to encroach for a purpose other than use of buffer averaging or placement of an
accessory
structure to a residential dwelling in the buffer use of the variance procedure is the
appropriate
method.
3) Except as provided above, the [local government] shall grant no variance from any provision of this
ordinance.
4) When a public hearing on the application for a variance is conducted, the [local government] shall give
public notice of each such public hearing in a newspaper of general circulation within the [local
government]. The [local government] shall require that the applicant post a sign giving notice of the
proposed variance and the public hearing. The sign shall be of a size and posted in such a location on
40 Protecting Riparian Buffers in Coastal Georgia: Management Options
the
property as to be clearly visible from the primary adjacent road right-of-way.
5) At a minimum, a variance request shall include the following information:
a) A site map that includes locations of all streams, wetlands, coastal marshlands, floodplain
boundaries and other natural features, as determined by field survey;
b) A description of the shape, size, topography, slope, soils, vegetation and other physical
characteristics of the property;
c) A detailed site plan that shows the locations of all existing and proposed structures and other
impervious cover, the limits of all existing and proposed land disturbance both inside and
outside the buffer;
d) The exact area of the buffer to be affected shall be accurately and clearly indicated;
e) Documentation of the inability to develop the property without a variance;
f) Documentation that shows how buffer encroachment will be minimized to the greatest extent
possible;
g) Documentation that shows how the buffer encroachment will not result in reduction of water
quality or diminishment of a uniform coastal marshland scenic vista;
h) At least one alternative plan, which does not include a buffer encroachment, and an
explanation of why such a plan is not possible;
i) A calculation of the total area and length of the proposed encroachment;
j) A stormwater management site plan, if applicable; and,
> A stormwater management site plan may be required if the property is located in a Phase I
or
II NPDES permitted area pursuant to the federal Clean Water Act or if the local
government
otherwise requires such a plan.
k) A proposed mitigation plan designed pursuant to the "Coastal Riparian Buffer Guidance
Manual"that offsets the effects of the proposed encroachment. If no mitigation is proposed,
the application must include an explanation of why none is being proposed.
> Acceptable mitigation might include restoration and/or enhancement and protection of a
degraded area of coastal riparian buffer on an adjacent or nearby property.
1) Payment of the application fee of
6) The following factors will be considered in determining whether to issue a variance:
Protecting Riparian Buffers in Coastal Georgia: Management Options 41
a) Whether the requirements of the riparian buffer represent an extreme hardship for the landowner,
such that little or no reasonable economic use of the land is available without the reduction of the
width of the riparian buffer;
b) Whether actions of the landowner of a given property have created conditions of a hardship on
that property;
c) The size, shape, topography, soils, vegetation and other physical characteristics of the property
that may prevent land development;
d) The location and extent of the proposed buffer encroachment;
e) Whether alternative designs are possible which require less or no intrusion;
f) The long-term water-quality impacts of the proposed variance;
g) The water quality impacts of any construction that the granting of the variance would allow in
the buffer;
h) Whether the issuance of a variance and the completion of the applicant's proposal will
unreasonably interfere with the conservation of fish, shrimp, oysters, crabs, clams, or other
marine life, wildlife, or other resources, including but not limited to water and oxygen supply;
and
i) whether the proposed development in the buffer will be conducted in accordance with all design
guidelines, low impact development techniques, and other guidance found in the "Coastal
Riparian Buffer Guidance Manual."
> Only the Georgia Environmental Protection Division may approve buffer variances within the
25-
foot buffer established along state waters under Georgia's Erosion and Sedimentation Act of
1975.
Op.Att'y Gen. No. 90-40 (1990). For purposes of the Erosion and Sedimentation Act of 1975,
state waters include, inter alia,ponds, lakes, reservoirs, and coastal marshlands. Op. Att'y
Gen.
No. 93-7 (1993).
> A local issuing authority does not have to allow encroachment into the 25 foot buffer, despite the
issuance of a variance by EPD.
If a variance issued by the Director is acceptable to the issuing authority,
the variance shall be included as a condition ofpermitting and therefore
becomes a part of the permit for the proposed land disturbing activity
project. If a stream buffer variance is not acceptable to the issuing
authority, the issuing authority may issue a land disturbing permit
without allowing encroachment into the buffer Ga. Comp. R. &Regs. §
391-3-7-.05(8) (2006).
42 Protecting Riparian Buffers in Coastal Georgia: Management Options
Section 8. Compatibility with Other Regulations and Requirements
This ordinance is not intended to interfere with, abrogate or annul any other ordinance, rule or regulation,
statute or other provision of law. The requirements of this ordinance should be considered minimum
requirements. Where any provision of this ordinance imposes restrictions or protective standards different
from those imposed by any other ordinance, rule, regulation, or other provision of law, the more restrictive
provision applies.
The requirements of this ordinance shall in no case be interpreted to preempt the need for other relevant
local, state and federal permits and approvals.
> All land disturbing activities must comply with the requirements of the Erosion and Sedimentation
Act
of 1975 and all applicable best management practices therein.
> A 100 foot buffer must be maintained along perennial rivers with an average annual flow of at
least
400 cubic feet per second pursuant to the Mountain and River Corridor Protection Act, O.C.G.A.
12- 2-8. For purposes of the Act, the 100 foot buffer begins from the river bank at mean high
water.
This subsection only applies to counties or cities whose jurisdiction extends beyond tidally
influenced
waters governed by the Coastal Marshland Protection Act.
> Construction of docks,piers and marinas are not governed by this ordinance and require permits
from the Department of Natural Resources (Coastal Resources Division) and/or Army Corps of
Engineers. Permit information can be found at http://crd.dnrstate.ga.us and http://www.usace.
army.mil. However, any land disturbing activity encroaching the buffer area associated with
construction
of a dock,pier, or marina must satisfy the requirements of the ordinance.
>Construction of bulkheads, groins, revetments, and any other shoreline engineering activities are
not governed by this ordinance and require permits from the Department of Natural Resources
(Coastal Resources Division) and/or Army Corps of Engineers. Permit information can be found
at http://crd.dnrstate.ga.us and http://www.usace.armymil. However, any land disturbing activity
encroaching the buffer area associated with the construction must satisfy ordinance requirements.
Section 9. Violations, Enforcement and Penalties
Any action, or inaction, which violates the provisions of this ordinance or the requirements of an
approved site plan may be subject to the enforcement actions outlined in this Section. Any such action, or
inaction, which is continuous with respect to time, is deemed to be a public nuisance and may be abated
by injunctive or other equitable relief. The imposition of any of the penalties described below shall not
prevent such equitable relief.
9.1. Notice of Violation
Protecting Riparian Buffers in Coastal Georgia: Management Options 43
If the [local government] determines that a permitee or other responsible person has failed to comply with
the terms and conditions of a permit, an approved stormwater management plan or the provisions of this
ordinance, it shall issue a written notice of violation to such permitee or other responsible person. Where
a person is engaged in activity covered by this ordinance without having first secured a permit therefore,
the notice of violation shall be served on the owner or the responsible person in charge of the activity being
conducted on the site.
The notice of violation shall contain:
1) The name and address of the owner or the applicant or the responsible person;
2) The address or other description of the site upon which the violation is occurring;
3) A statement specifying the nature of the violation;
4) A description of the remedial measures necessary to bring the action or inaction into compliance with the
permit, the stormwater management plan or this ordinance and the date for the completion of such
remedial action;
5) A statement of the penalty or penalties that may be assessed against the person to whom the notice of
violation is directed; and,
6) A statement that the determination of violation may be appealed to the [local government] by filing a
written notice of appeal within thirty(30) days after the notice of violation (except, that in the event
the violation constitutes an immediate danger to public health or public safety, 24 hours notice shall be
sufficient).
9.2. Penalties
In the event the remedial measures described in the notice of violation have not been completed by the
date set forth for such completion in the notice of violation, any one or more of the following actions or
penalties may be taken or assessed against the person to whom the notice of violation was directed. Before
taking any of the following actions or imposing any of the following penalties, the [local government]
shall first notify the permitee or other responsible person in writing of its intended action, and shall provide
a reasonable opportunity, of not less than 72 hours (except,that in the event the violation constitutes an
immediate danger to public health or public safety, 24 hours notice shall be sufficient) to cure such violation.
In the event the permitee or other responsible person fails to cure such violation after such notice and cure
period, the [local government] may take any one or more of the following actions or impose any one or
more of the following penalties.
1) Stop Work Order-The [local government] may issue a stop work order which shall be served on the
permitee or other responsible person. The stop work order shall remain in effect until the permitee or
other responsible person has taken the remedial measures set forth in the notice of violation or has
otherwise cured the violation or violations described therein, provided the stop work order may be
withdrawn or modified to enable the permitee or other responsible person to take the necessary remedial
measures to cure such violation or violations.
2) Withhold Certificate of Occupancy - The [local government] may refuse to issue a certificate of
occupancy
44 Protecting Riparian Buffers in Coastal Georgia: Management Options
for the building or other improvements constructed or being constructed on the site until the permitee or
other responsible person has taken the remedial measures set forth in the notice of violation or has
otherwise cured the violations described therein.
3) Suspension, Revocation or Modification of Permit- The [local government] may suspend, revoke or
modify the permit authorizing the land development project. A suspended, revoked or modified permit
may be reinstated after the permitee or other responsible person has taken the remedial measures set
forth in the notice of violation or has otherwise cured the violations described therein,provided such
permit may be reinstated (upon such conditions as the [local government] may deem necessary) to
enable the permitee or other responsible person to take the necessary remedial measures to cure such
violations.
4) Civil Penalties - In the event the permitee or other responsible person fails to take the remedial measures
set forth in the notice of violation or otherwise fails to cure the violations described therein within 72
hours, or such lesser period as the [local government] shall deem appropriate (except, that in the event
the violation constitutes an immediate danger to public health or public safety, 24 hours notice shall be
sufficient) after the[local government] has taken one or more of the actions described above, the [local
government] may impose a penalty on the permitee or other responsible person not to exceed $1,000
(depending on the severity of the violation) for each day the violation remains un-remedied after receipt
of the notice of violation.
5) Criminal Penalties -For intentional and flagrant violations of this ordinance, the [local government] may
issue a citation to the permitee or other responsible person, requiring such person to appear in
[appropriate municipal, magistrate or recorders] court to answer charges for such violation. Upon
conviction, such person shall be punished by a fine not to exceed $1,000 or imprisonment for 60 days or
both. Each act of violation and each day upon which any violation shall occur shall constitute a separate
offense.
Protecting Riparian Buffers in Coastal Georgia: Management Options 1+5
The River Basin Center is the public service and outreach office of the University of Georgia Institute of Ecology. The
Center's mission is to integrate science and policymaking, particularly relating to the intersection of land use with
water quality/quantity and biodiversity issues. Faculty,staff and graduate students include research scientists, policy
analysts,outreach specialists,and attorneys.Major projects of the Center include the development of an aquatic habi-
tat conservation plan for the local governments of the Etowah River basin,funded by the U.S. Fish &Wildlife Service;
and the Initiative for Watershed Excellence: Upper Altamaha Pilot Project,funded by the U.S. EPA and Georgia EPD.
For more information about the River Basin Center:
UGA River Basin Center
110 Riverbend Road, Room 101
Athens,GA 30602-1510
(706) 583-0%3 • Fax (706) 583-0612
www.rivercenter.uga.edu
The UGA Land Use Clinic provides innovative legal tools and strategies to help preserve land,water and scenic beau-
ty while promoting creation of communities responsive to human and environmental needs. The clinic helps local
governments,state agencies, landowners,and non-profit organizations to develop quality land use and growth man-
agement policies and practices. The clinic also gives UGA law students an opportunity to develop practical skills and
provides them with knowledge of land use law and policy.
For more information about the UGA Land Use Clinic:
Jamie Baker Roskie, Managing Attorney
UGA Land Use Clinic
110 Riverbend Road, Room 101
Athens,GA 30602-1510
(706) 583-0373 • Fax(706) 583-0612
jroskie @uga.edu
This report was funded by the Georgia Department of Natural Resources Environmental Protection Division
Coastal Nonpoint Source Program.
This report was prepared by the UGA River Basin Center and UGA Land Use Clinic under award# NA05NOS4191212
from the Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration.The
statements,findings,conclusions,and recommendations are those of the author(s) and do not necessarily reflect the
views of OCRM or NOAA.