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COASTAL MARSHLAND PROTECTION ACT:
Enforcement Remains Questionable in Spite of the Court’s Rulings
So whose job is it to protect Georgia's vast and fragile
estuary and salt marsh system? Should private citizens
be forced to bear the cost of enforcing the laws
that protect the marsh? Are the state and the Coastal
Marshland Protection Committee (the øCommittee")
doing their job to protect the marsh when they approve
almost every permit request that comes before them?
In 1970, the Georgia legislature enacted the Coastal
Marshlands Protection Act (CMPA) to protect coastal
marshlands as a øvital natural resource system." The
CMPA created the Coastal Marshlands Protection
Committee and provides that ø[n]o person shall
remove, fill, dredge, drain, or otherwise alter any
marshlands in this state within the estuarine area thereof
without first obtaining a permit from the committee."
To receive a permit, an applicant must demonstrate
that a proposed alteration is not contrary to the
øpublic interest" and that øno feasible alternative sites
exist." The øpublic interest" is deemed by the statute
to include the following consideration: øWhether or
not the granting of a permit 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."
ARK has been attending meetings of the Committee
and monitoring its permit requests since 2001. We
have seen the committee approve numerous permits,
against the strong objections of citizens citing the
CMPA provisions that the Committee must consider
the impact of the permitted projects on the coastal
marshland ecosystem. We have observed in disbelief
as we watched the Committee act as if its primary
responsibility was the granting of permits to accommodate
development. We pondered aloud, øWhy
can't the state unite with the vast majority of citizens
who want to see the extensive and priceless resources
of Georgia's estuary and salt marshes protected as
nursery grounds for our commercial and recreational
fisheries? Why can't our natural resources be protected
to encourage the kind of economic development
and tourism that allows people to learn about and
respect our unique environment without destroying it
for their convenience? Why can't the state's resources
be used to put forth legal arguments that protect the
marsh? "
To answer these questions, ARK joined with coastal
groups who believe that the Committee failed in its
obligations to enforce the CMPC when it granted permits
for bridges and marinas without consideration of
how their related developments would impact the
environment. We asked the Southern Environmental
Law Center (SELC) to appeal two permits, Emerald
Point in 2001 and Man Head Marina in 2002. The
appeals were filed because we could not agree with the
legal interpretation of the Coastal Marshland
Protection Act that allowed the Committee to grant
permits without looking at how the permitted projects
would impact the marshlands. As these complex legal
cases wind their way through administrative, superior,
and appeals courts, we have seen that the citizen interpretation
of the law has a firm legal basis.
In three separate rulings, Superior Courts in Fulton
and Glynn County have agreed with SELC and determined
that the CMPArequires the Committee not only
to consider how proposed structures and activities in
the marsh affect the marsh, but also how a projects'
upland components impact marshlands.
In December 2003, in the Emerald Pointe case, a
Fulton Superior Court judge found that such an irreplaceable
resource as Georgia's coastal marshlands
øshould not be altered without full consideration of the
matter by the body charged with protection of the
marshlands."
In early January 2004, both the state and the developer
appealed the rulings of the Fulton County
Superior Court and on January 30, the Georgia Court
of Appeals denied the requests for appellate review.
On January 9, 2004, the state appealed this decision to
the Georgia Court of Appeals. As we go to press
(2/4/04) the Court of Appeals denied their request for
appeal. While the state was content to use our tax
money to continue the appeals process in support of
the developers, the Court of Appeals would will not
allow it. The state has maintained that they will follow
the courts in determining how to apply the CMPA.
Still they have been reluctant to follow the superior
court rulings in Emerald Pointe and Man head Marina,
and have instead joined in the developers' appeals of
the court orders. Now that the Court of Appeals has
denied the appeals for discretionary review, the time
has come for the state to follow the courts and to consider
the entire project when evaluating whether or not
a project will interfere with our protected marsh
resources.
The Man Head Marina and Emerald Point developments
were temporarily delayed as the court reviewed
cases and related appeals. In granting of permits without
adequate review, the committee costs citizens and
the developers significant time and money.
It must be noted that the vast majority of requests for
permits in recent years have sailed through the
Committee. In some of the larger projects, after court
decisions, the CRD staff has taken positive steps and
developed permit conditions to lessen impact on the
marsh, but will these conditions be reviewed and
enforced over time?
ARK's recent experiences with a proposed waterfront
condominium complex on the Darien River raises
serious questions about the state's willingness to
enforce permits once they are granted.
Darien residents appeared before the Committee on
October 6 to express concerns about the development
of a high-density condominium complex planned for
Darien's waterfront. The proposed 42-unit condo
waterfront complex is part of a public-private partnership
created by the Darien Downtown Development
Authority to promote economic development on
Darien's historic waterfront.
ARK raised permitting issues about this project when we learned that the
1993 CMPC permit originally granted for a public marina and boat storage
facility was being transferred to the Settler's Bluff development group
for the condominium complex and private docks without a review
of the new project. Permit #227, which was renewed twice and expired on
March 31, 2003, allowed for the construction of dockage and boat slips.
The CMPA allows for the transfer of a permit within 30 days to the new owner,
as long as there is no change in the use of the land as set forth in the
original application.
Because the new project was known to be totally different
and of much greater impact to the site and estuary,
SELC raised legal issues regarding the permit
transfer in formal letters to the Committee on March
20, May 9, and again on July 15, 2003. After waiting
for months with no reply, citizens were greeted at the
October 6, 2003 meeting with copies of a letter faxed
that morning to Commissioner Lonice Barrett from
Deputy Attorney General Isaac Byrd. Regarding permit
transfer, Byrd's letter states:
This provision allows a permittee to make a valid transfer of a permit
upon notice within 30 days of such transfer. The language of this provision
does not require an assessment of the use under the permit as a condition
of transfer. This provision further provides that upon transfer with notice,
a CMPC permit øshall be continued in force€ so long as there is no change
in the use of the land as set forth in the original application. Thus, the
viability of a transferred permit may be placed in issue upon a øchange
of use" but not upon a transfer alone. (O.C.G. A. 12-5-293).
Later in the letter Byrd cites O.C.G.A. 12-5-291: All changes in permitted
uses which increase impacts to any land subject to the provisions of the
CMPA must be assessed by the committee to determine if the proposed change
is consistent with the CMPA and the permit€€ If the permit holder is found
not to be in compliance with (the CMPA), the committee shall take action
as authorized under O.C. G. A. 12-5-291.
Byrd further states that under this language, a change of use requires
CMPC assessment if it increases impacts to the marshlands. Whether a particular
change increases such impacts and therefore is required to be assessed is
a question of fact; whether action is required or not would be for the discretion
of the CMPC and its staff. The CMPC would have to determine which changes
of use or categories of use merit its attention and which unauthorized changes
require enforcement.
Ironically Byrd's letter supports the assertion that the
CMPC acted in error when it transferred Permit #227
without considering the project's significant changes
but still no action has been taken to evaluate the condominium
project The docks and 42 boat slips were
hastily constructed during the last two weeks of
March, 2003 before the permit expired. Alocked gate
was installed on the mainland access and the docks
remain unused. Site plans, acquired through EPD,
illustrate a five building condominium complex to be
built on approximately 2 acres. Built to the very edge
of the required buffer and surrounded by a retaining
wall, this development will insure that the once scenic
Darien waterfront will in the future feature three story
condominiums and a sea of paving. There is no place
for the extensive surface water run-off to be absorbed
before it reaches the Darien River.
We understood that the CMPAstipulated that permits
could only be transferred if there was no change in use
to prohibit this kind of nightmare scenario. A permit
originally granted for a marina, clearly a øwater
dependent use" has been transferred to a private residential
development, whose investors claim the project
requires the density, height, and proximity to the
water to meet their economic expectations. We urge
the Committee and CRD to review this project in light
of the recent court rulings. Please consider contacting
them (Coastal Marshland Protection Committee, One
Conservation Way, Brunswick, GA 31520-9687) and
sharing your opinions.
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