Setting the Record Straight on Marsh Permit Appeals

By David C. Kyler, Executive Director, Center for a Sustainable Coast

Despite the facts publicly revealed a year ago, politically motivated spin-doctors working on behalf of a few developers persist in misrepresenting the facts about legal actions taken to appeal DNR issued marsh permits. To hear their claims, one would think there has been a flurry of appeals, and that these appeals have been unfounded - or in the jargon of legalese, "frivolous." Yet, a report produced by the Georgia Attorney General last year clearly shows otherwise.

According to the AG's report, between 1994 and early 2003, there were only 20 appeals filed challenging just a few of the hundreds of permits issued by DNR for projects under BOTH state laws for marsh protection and shore protection. There has been only one additional appeal filed (on a marsh permit decision) since that report was released, making the total number of appeals now twenty-one over a period of more than ten years. Five of these cases involved shore protection permits, while the sixteen others were challenging marsh permitting decisions.

Of the sixteen marsh permit appeals, only six were filed by environmental groups representing the public interest. Fully ten of these sixteen appeals (nearly two-thirds) were filed by either property owners or developers, not non-profit groups. Since 2001, eleven appeals have been filed and only five of these been initiated by environmental groups.

Moreover, as for the assertion that these few cases were "frivolous," again the record clearly contradicts that description. First, none of those appeals were dismissed by the administrative judge, which they could have been if the defending attorneys successfully argued that the appeals were without merit. More importantly, of the appeals filed by environmental groups that have been decided in recent years, most have been won, favoring the appeal and revoking the permit. Obviously these appeals were awarded because they were credible, and anything but frivolous. The effect of these appeals has been to strengthen the permitting process by promoting accurate interpretation of the Marshlands Protection Act to achieve more responsible use of state resources, not to obstruct development.

When disputes arise over decisions affecting profits made from the use of public resources, examining facts is essential to sorting out impassioned claims. If developers are losing money due to delays caused by permit appeals, they should consider doing two things as an alternative to deliberately misrepresenting the truth: (1.) Reduce their interest costs by structuring projects to limit the need for borrowing large amounts prematurely, and (2.) Encourage DNR to make better decisions that are consistent with state law, rather than lobbying the permitting committee for a rubber-stamped approval that is likely to be appealed.
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