Georgia River Network v. Turner

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Division 2 of the majority opinion. I respectfully dissent from Division 3, however. The majority’s interpretation of OCGA § 12-7-6 (h) (15) (A) (the “buffer provision”) rewrites that statutory provision, and its assertion that doing so is necessary to effectuate the General Assembly’s intent and to avoid an unreasonable result is conclusory and speculative.

In cases involving questions of statutory interpretation, we are guided by the following principles:

It is elementary that in all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. . . . *393Moreover, Georgia law provides that the express mention of one thing in an act or statute implies the exclusion of all other things.

(Punctuation and footnotes omitted.) Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009).

In relevant part, OCGA § 12-7-6 (b) (15) (A) states that “[t]here is established a 25[-]foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, except” when one of six exceptions applies. The wrested vegetation phrase, set off by commas between “state waters” and “except,” is a participial phrase that modifies the term “buffer.” The wrested vegetation phrase directs that the 25-foot buffer along the banks of state waters is “measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action.” OCGA § 12-7-6 (b) (15) (A). Applying its ordinary meaning, “wrest” means “[t]o extract by or as if by force, twisting, or persistent effort.” The American Heritage Dictionary of the English Language at 2060 (3d ed. 1992). When normal stream flow or wave action is absent or lacks sufficient force to wrest the vegetation along the banks of state waters, the Erosion and Sedimentation Act provides no means of measuring a buffer. I would hold that the most natural and reasonable construction of the buffer provision is that under such circumstances, no buffer exists. This interpretation is reinforced by the buffer provision’s description of buffers as located along the “banks” of state waters. When used in reference to a body of water, “bank” most commonly means “the rising ground bordering a lake, river, or sea,” Merriam Webster’s Collegiate Dictionary at 96 (11th ed. 2008) or “[t]he slope of land adjoining a body of water, especially adjoining a river, lake, or channel.” The American Heritage Dictionary, supra, at 145. Even if they are not in and of themselves determinative of the buffer provision’s meaning, these definitions are evidence that the General Assembly contemplated that buffers would exist along those bodies of water, such as rivers and lakes, that are characterized by water movement sufficient to create a line of wrested vegetation.

The majority agrees that the wrested vegetation phrase sets forth the method for measuring the buffer yet concludes that a buffer exists adjacent to all state waters even when there is no line of wrested vegetation from which it may be measured. In reaching this conclusion, the majority is impliedly holding that other means of measuring a buffer may be used if wrested vegetation is absent. But if the General Assembly had intended that other methods of measuring a buffer could apply or that the EPD should develop them, it *394would have said so. The express mention of one method of measuring the buffer implies the exclusion of other methods under the principle of expressio unius est exclusio alterius. See Morton v. Bell, 264 Ga. 832, 833 (452 SE2d 103) (1995). The majority, too, relies on this principle of statutory construction, stating that the Superior Courts’ interpretation of the buffer provision violates the principle by adding a new, seventh exception to the circumstances in which a buffer is required. I find this conclusion unpersuasive. A determination that state waters that do not have banks with wrested vegetation do not fall within the scope of the buffer requirement in the first place is not tantamount to creating a new statutory exception.

The majority rewrites the buffer provision because it concludes that doing so is necessary to effectuate the intent of the General Assembly and to avoid unreasonable results. The majority states that under the Superior Courts’ interpretation of the buffer provision, no buffer would be required “along the banks of streams, rivers, and lakes that have rocky or sandy shores where lines of wrested vegetation cannot be found” and that an absurd result would ensue if, therefore, buffer protection applied in “fits and starts.” The majority does not explain, however, why it would be unreasonable for the General Assembly to conclude that a vegetative buffer is not necessary where there is no vegetation along the water banks to begin with. Nor does the majority hazard an explanation as to why the General Assembly could not have reasonably concluded that a buffer should not be required where, as may occur with wetlands, there is a continuous growth of vegetation from the upland into the waters.

The scope of the buffer provision may not be as wide as the River Groups and the majority believe it should be, but it is nonetheless broadly drawn to apply to the banks of any “state waters,” so long as the criteria of the wrested vegetation phrase are satisfied. The majority offers no compelling reason for concluding that the General Assembly could not have determined that a buffer along the banks of state waters with wrested vegetation together with the numerous other best management practices set forth in OCGA § 12-7-6 (b) would effectuate the purposes of the statute. While there are no doubt policy arguments in favor of a broader buffer provision, it is not our place to second-guess the General Assembly’s judgment in this regard or to rewrite the buffer provision to achieve what we believe is a more desirable level of environmental protection. See Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d 814) (2007) (“[U]nder our system of separation of powers this Court does not have the authority to rewrite statutes.”) (citation and punctuation omitted).

I am authorized to state that Judge Ray and Judge Branch join in this dissent.

*395Decided July 16, 2014 —

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