Georgia Supreme Court issues decision in Cumberland Harbour case that fails to fully protect coastal marshlands

The Georgia Supreme Court today issued a ruling in a case against the Coastal Marshlands Protection Committee of the Georgia Department of Natural Resources, which centered on a permit granted to the developer of Cumberland Harbour.  The ruling affirms a Court of Appeals interpretation of the state Coastal Marshlands Protection Act that was narrower than urged by coastal protection groups appealing the Cumberland Harbour permit.  The permit now goes back to the committee for further evaluation of impacts to right whales, manatees, and sea turtles as required by the Administrative Law Judge earlier in the case and not appealed to the Supreme Court.

Following is a statement from SELC Senior Attorney Chris DeScherer:

“We are disappointed that the Supreme Court’s ruling interpreted the Coastal Marshlands Protection Act in a way that does not fully protect the marsh from developments next to the marshlands, like the Cumberland Harbour development.  The Supreme Court today left nearly 400,000 acres of one of the world’s most productive natural resources in uncertain hands. This ruling limits what had been one of the strongest tools available to ensure the necessary balance of ecological protections with economic development as the Georgia coast continues to grow.  We are considering whether to file a motion with the Court to reconsider its opinion.

“We believe, however, that the Supreme Court’s opinion does affirm the duty of the Coastal Marshlands Protection Committee to consider whether stormwater discharges cause direct physical alteration of the marsh.  As the committee reconsiders the permit for impacts to wildlife, the conservation groups will present evidence that the massive discharges of stormwater from Cumberland Harbour will physically alter the marsh in violation of the Supreme Court opinion.  That kind of damage is all too frequent from the increasing development of land in areas adjacent to the marsh.

“SELC and its partners will continue to use the protection of the Coastal Marshlands Protection Act, together with the patchwork of other state and federal regulations, to ensure that our irreplaceable coastal resources are protected.” 

Background:

The Cumberland Harbour development plans up to 1,200 homes and commercial facilities on the upland, as well as two large-scale marinas and community and private docks.  The largest marina project ever to be permitted in Georgia, Cumberland Harbour is located directly across from Cumberland Island National Seashore. The Coastal Marshlands Protection 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 consider adequate protections for critically endangered species such as the right whale, manatee and five species of sea turtles.

SELC, on behalf of its clients, had argued that the Coastal Marshlands Protection Committee was obligated 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.  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.