Court Rules that Coastal Development Must Consider Overall Impacts to Marsh
Atlanta - The Cumberland Harbour permit was rejected and sent back to the state, in a major win for conservationists
concerning large-scale residential and commercial development and the largest marina project ever to be permitted in Georgia,
sited directly across from Cumberland Island National Seashore. The Administrative Law Judge ruled today against the state and
the developer finding that the state committee charged with permitting development along the coast must consider the impact of
the entire project - not just the portion to be constructed in the marsh - on the state's marshes. The ruling also ensures that
protection of critically endangered species like right whales, manatees and sea turtles must be of paramount consideration in the
reevaluation of the permit for Cumberland Harbour.
The Court's decision reaffirms the obligation of the state's Coastal Marshlands Protection Committee to protect Georgia's marshlands
from the impacts of large-scale development by considering, among other things, the discharge of polluted stormwater runoff, the amount
of roads, driveways, rooftops and other impervious surfaces, impacts to marine life, and the design and maintenance of natural buffers.
This decision builds on prior legal rulings of Superior Courts of Fulton and Glynn Counties that required the state to consider impacts
of entire proposed projects to the salt marsh ecosystem.
"Today's ruling sends a strong message that Georgia's coast is too valuable to risk on irresponsible development," said Chris DeScherer,
attorney with the Southern Environmental Law Center, which, with the Turner Environmental Law Clinic at Emory University, and the Atlanta
law firm of Smith, Gambrell & Russell, represented the Center for a Sustainable Coast, Georgia River Network, and Satilla Riverkeeper.
"This is a tremendous victory for protection of some of our state's most ecologically and economically valuable resources - its marshlands,
coastal waters, wildlife and marine life."
Administrative Law Judge Michael M. Malihi ruled that when a project involves construction both within and outside the marshlands, the
entire development and its impact on the marsh must be considered by the Committee. The state had previously asserted that the Committee
was not required to regulate upland activities and could instead permit development in an "a la carte" approach that only considers those
portions constructed in the marsh.
The ruling requires the Committee to reexamine the features of the planned development to determine whether the project will "otherwise alter"
the coastal marshlands, and requires consideration of features such as stormwater management, buffer design and maintenance.
"Our coastal marshes are held in trust by the state of Georgia to benefit all Georgians. This decision solidifies the
need for the Coastal Marshlands Protection Committee to make responsible decisions and not sacrifice our marshes for private gain.
This decision calls on the Coastal Marshlands Protection Committee to protect our coastal property values and the
right of all Georgians to enjoy the benefit of this unique, irreplaceable and truly priceless resource," said April Ingle executive
director of the Georgia River Network.
The Court also requires the Committee to consider and review the final conservation measures designed to prevent unreasonable
interference with the protection of right whales, manatees and sea turtles, all federally protected endangered or threatened species.
The Court found that the Committee had prematurely granted the permit without a sufficient assessment of the project's impacts on these
animals. In fact, the Court found the assessment so incomplete it did not provide an adequate basis for the Court to conduct its review.
"Today's ruling reinforces the Committee's responsibility to protect animals such as right whales, manatees and sea turtles, whose very
existence is threatened by rampant coastal development and the increase in boat traffic spawned by the development," said Steve O'Day,
environmental partner at Atlanta's Smith, Gambrell & Russell. Cumberland Harbour would add 800 boats to waters just three miles from
the only known calving ground for right whales, the most endangered marine mammal on earth.
"The profitability of coastal development is creating a 'gold rush' mentality that will do irreparable harm without proper regulation and
enforcement. Today's ruling will help ensure that those that profit from Georgia's coast are accountable for their actions," said David Kyler
of the Center for a Sustainable Coast. "Without such a ruling, the very resources that make the area so attractive are in jeopardy of being
lost by rampant and ill-planned development."
Georgia's Coastal Marshlands Protection Act requires the Coastal Marshlands Protection Committee to evaluate whether the granting of a permit
"will unreasonably interfere" with the conservation of marine life and wildlife. The Act also requires the Committee to evaluate the impact
of any project that would alter any marshlands before permitting their development. Despite this, the Courts have had to intervene over the
last several years through rulings against the Committee involving development at Emerald Pointe, near Savannah, and Man Head Marina, near
St. Simons Island. These rulings have set strong precedent for the Committee to change its practice of issuing permits without fully
considering impacts of the entire development, and these decisions have been re-affirmed by the Court's ruling today.
In April, the Southern Environmental Law Center and the Turner Environmental Law Clinic challenged the decision of the state's Coastal
Marshlands Protection Committee to allow the development of an upscale residential development and marina complex near Cumberland Island
National Seashore that would threaten the adjacent marshes and endanger a number of federally and state-protected species in one of the
most environmentally sensitive areas of the state.
The Committee approved a permit for Atlanta developer Land Resource Companies without considering the impact of the development on the
marsh as a whole, such as increased stormwater pollution. The Committee also failed to adequately assess and protect the wildlife,
marshlands, and tidal waters that will be impacted by the project.
The plan would include 900 - 1,200 homes and commercial facilities on the upland, as well as two large-scale marinas and community and
private docks. The marinas would bring as many as 800 boats to the area, posing a severe risk of boat strikes to the federally and state
protected species that inhabit the area including manatees, sea turtles, and right whales - the most endangered large whale species in
the world.
"Today's ruling is important for all that care about Georgia's coast. By recognizing that coastal development has far reaching impacts on
both the uplands and the marine life, this ruling will allow Georgia's coast to develop in a way that will allow our children to enjoy
this unique and treasured place," said Mary Maclean Asbill of the Turner Environmental Law Clinic at Emory University.
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