The Interplay of Environmental Land Use and Zoning Laws for the Protection of Georgia Coastal Resources
Donald D.J. Stack
Jonathan L. Schwartz
Holly P. Hayes
Mara L. Zeman
IMPACTS AFFECTING OUR COASTAL RESOURCES
Ever since the days of the Reconstruction, writers and politicians alike have contemplated and discussed the concept of “two Georgias”, with the former referencing the urban Atlanta area, and the latter referencing virtually all other areas of the State. In the ensuing 135 plus years since the Civil War, Georgia history and politics have reflected the continuing tensions between these two factions.
This pattern continues today, and has become even more prevalent during the last decade, particularly during the last five years. The reasons for this are myriad, including, as follows:
1) the dramatic growth of the State as a whole;
2) the explosive growth of the metropolitan Atlanta area, and the corresponding ever-increasing demand for finite natural resources;
3) the concomitant growth of the Coastal Region, through both new, permanent residents and weekenders from the Atlanta area;
4) surrounding States’ desires to control their own destiny with natural resources that either originate or pass through Georgia.
Georgia is by far one of the fastest growing states in the nation. The specific statistics regarding Georgia’s seemingly infinite population growth paint an alarming picture, particularly with regard to impending impacts on natural resources, particularly in the Coastal Region. According to the U.S. Census Bureau, Georgia ranks sixth in the country overall for percentage population growth between 1990 and 2000, and fourth in the country for numeric population growth over the same period. With a percentage population growth of 38.9% between 1990 and 2000, Atlanta ranks eleventh in the country for percentage growth among major metropolitan areas, and fourth in the country for numeric growth. Four Georgia counties (Forsyth, Henry, Paulding and Gilmer) rank among the top twenty in the country for percentage population growth between 1990 and 2000, with two of these counties (Forsyth and Henry) having a growth rate of more than 100 percent.
Such massive growth is not restricted solely to Atlanta and nearby surrounding areas, however. Coastal Georgia’s population is increasing at a rate of 20 percent per decade, placing an ever-increasing burden on available coastal resources 1. The Georgia coast’s population is expected to double within 35 years, to more than one million residents.2 Georgia’s “coastal zone”- defined as the area where the water meets the land, i.e. beaches, sounds, wetlands – is comprised of eleven counties- Brantley, Bryan, Camden, Chatham, Charlton, Effingham, Glynn, Liberty, Long, McIntosh and Wayne. Of these, four (Bryan, Camden, Effingham and Long) have a growth percentage rate of more than 40 percent between 1990 and 2000, with Long having the highest rate of growth- a whopping 66.1 percent!3 Georgia’s coastal population has doubled since the foundation for coastal legislation was built with the passing of the Marshland Protection Act in 1970, and it will double again by the year 2030, with proportional increases in water and land usage.
With this growth comes the ever-increasing demands on natural, historical and cultural resources in the Coastal Region. Such growth leads to irrevocable changes in the very character and ambience of the Region, thereby destroying the very allure that attracts people to the area. As a noted philosopher once said:
“Don’t it always seem to go That you don’t know what you’ve got till it’s gone They paved paradise and put up a parking lot. They took all the trees and put ’em in a tree museum And they charged all the people a dollar and a half just to see ’em.”4
An increasing number of people are seeking to protect and preserve the unique character of the Region and are turning to environmental, land use and zoning laws in order to do so.
I. Water Usage- Out of Control
Invariably, the growth of the State as a whole has profoundly affected the demand for and the use of natural resources. Though all have been severely impacted, it is our diminishing and increasingly contaminated water supply that is perhaps of the greatest long-term concern.
In metropolitan Atlanta, per capita water use averages 158 gallons a day.5 Proposed legislation is expected this year that could effectively allow the selling of Georgia’s water rights to the highest bidders. Although technically infeasible at this time, if it passes, Atlanta will essentially be able to “buy” all the water it wants! Theoretically, it could then be in a position to draw endless quantities from the Savannah River and other coastal Georgia water bodies, along with tapping into the south Georgia aquifers to fulfill its insatiable appetite for H2O.
Perhaps surprisingly, elsewhere in the State, water usage statistics are even higher than metro Atlanta’s, according to the U.S. Geological Survey. Coastal Georgia, with its pulp mills and other big, water-using industries, averages a staggering 623 gallons of water per capita per day. Comprehensive data for the State as a whole shows that Georgia residents use nearly 10 percent more water per capita than the national average (168 gallons per day vs. 153 gallons per day). Georgia’s four year drought has had a further adverse effect, reducing levels in virtually all bodies of water statewide.
In addition to consumer consumption, industrial and agricultural usage abounds. In Georgia, there is no water metering system for farmers. They can use as much water as they deem necessary without consequence. “There is a lack of incentive for the agricultural sector to do better”, says Dr. Benjamin Thompson, legal analyst with the Coastal Rivers Water Planning and Policy Center at Georgia Southern University.6
America’s obsessive passion for golf has sprouted a seemingly endless array of golf courses and country clubs, all with well-maintained, manicured green lawns where water plays a vital role in upkeep and appearance. Though some, like The Landings Club on Skidaway Island, have made efforts to put water conservation measures into place, most have not.
Power generation is the worst offender, being the single largest water user in the State, even larger than agriculture and industry. Even worse, national studies have found that between 10 and 50 percent of water in municipal, commercial and industrial systems is being squandered- either through faulty equipment (leaking pipes, valves and meters), excessive non-essential use (like irrigating during a rainstorm), or obsolete, water-intensive processing methods.
“The bottom line is that most water systems are tapped out and we’re all looking for solutions”, says Amy Vikkers, author of The Handbook of Water Use and Conservation and a nationally known consultant on conservation. Most systems, says Vikkers, can reduce demand by 15 to 30 percent.7
So why do we use so much water yet are so lax about conservation? Essentially, because it is cheap, according to experts. When there is no economic value to water, it is hard for people to understand the value of conservation. When fresh water flows freely from a leaky faucet all day and night, yet there is no corresponding significant increase in cost, there is not much of a pressing need, nor impetus, to repair the leak. However, if water becomes more expensive, and every drip becomes money “down the drain”, there is more incentive to fix the leak and curb water use as a whole.
In addition to excessive usage, contamination and infiltration of existing water supplies are becoming an increasing concern. Threats to public health, communities, wildlife, and nature-based businesses are increasing. Sixty percent of Georgia’s waterways are too polluted to meet Federal standards for fishing or swimming. Three rivers on the coast, including the Savannah River, were ranked among the nation’s worst in terms of cancer-causing chemicals.8 EPA publications report that the permitted release of toxins into Georgia’s waterways rose by more than 80 percent from 1989 through 1998. Half of Georgia’s fish consumption advisories are in the Coastal Region, even though the coastal area comprises less than one-fifteenth of the State’s total geographic area. Loosely translated, this means that coastal Georgians are seven times more likely to encounter toxic materials in fish than are other Georgians.
Coastal resources are under a growing threat from unprecedented urban and rural development across the vast watersheds of coastal rivers, which carry associated pollution hundreds of miles downstream to Georgia’s estuaries. These inter-tidal areas are a highly sensitive essential fish habitat, ecologically vital to a plethora of marine species. To quote from the Georgia Center for a Sustainable Coast’s proposal entitled, “Improving Protection of Coastal Water Resources“:
“Even before the current period of drought, salinity in the inter-tidal areas of coastal rivers had been increasing, putting various species of fish at risk, especially at their earlier life stages. Remaining fresh water flowing into Georgia’s estuary system is needed to retain the function of this highly valuable habitat, which supports thousands of jobs in commercial and recreational fishing and seafood processing. The economic importance of these coastal resources is on the order of one billion dollars annually….“
In addition, groundwater quality is threatened by saltwater intrusion due to heavy water usage in the coastal counties of the State. Pumping in Southeast Georgia has resulted in changes to the water composition of the main aquifer, a porous layer of rock that water seeps through. This excessive pumping has caused the Floridan aquifer to be drawn down enough to allow salty water to infiltrate the fresh water supply near Savannah and Brunswick. Since the coastal area of Georgia receives almost all of its water from the Upper Floridan aquifer, most notably its drinking water, the impact of this infiltration is significant and widespread.
I. Assaults On Our Water Supply
There are many other existing assaults on our water resources, in addition to the excessive use described above. Such assaults have both a growing and lasting effect on the quantity, quality, and safety of our water supply.
In the remainder of Section II, we will examine more closely how coastal dredging and proposed harbor expansion and deepening, water withdrawal and aquifer infiltration, reservoirs, and marshland development continue to have an undeniably hazardous effect on the delicate balance of our aquatic ecosystems.
A. Coastal Dredging and the Savannah Harbor Expansion
In Savannah, a war is being waged over six feet. The point of contention is the six feet of added depth the Georgia Ports Authority wants to add to the Savannah River, so it can accommodate the new generation of mammoth cargo ships of the 21st century. The six feet of dredging allegedly necessary is questioned by almost every State and Federal agency in Georgia, as well as environmentalists and even some industries. Nevertheless, Congress has already approved the Federal share of the 230 million dollar cost of the deepening, before environmental studies have been completed, using a special clause in the Water Resources Development Act, Section 203, commonly known as the “fast track” clause. Many environmental groups, including The Georgia Conservancy, oppose the “fast track” approval, maintaining that it circumvents the National Environmental Policy Act (NEPA), which requires that the environmental impacts of projects be fully identified, studied, and documented before they are approved.9
The Georgia Ports Authority maintains that the expansion is vital to keeping Savannah competitive among the major East Coast ports, several of which are pursuing similar deepening projects. GPA Deputy Executive Director David A. Schaller says that the pressure is intense. “Shipping companies with deep draft vessels won’t even consider Savannah if the navigation channel is not deepened to accommodate them”, says Schaller. “Shipping companies currently calling on Savannah expect that their ships won’t be delayed as a result of insufficient depth”, he says, referring to the fact that the largest ships currently must wait until high-tide to begin the hour long journey up the Savannah River to GPA’s facilities.10
But some shipping experts maintain that most ports on North America’s East Coast are simply unsuited for big ships. In the shipping publication The Journal of Commerce, columnist Theodore Prince says ports like Savannah should accept “a role limited in geography…rather than engage in a quixotic pursuit of mega-port status”.11
For one thing, the cost of such projects is prohibitive, requiring large amounts of Federal funds, as well as millions in State tax dollars. In addition, it costs literally tens of millions of dollars annually to keep a harbor dredged at a certain depth, especially when the channel is twenty six miles long, like Savannah’s.
The Savannah River was deepened only eight years ago, from 38 feet to 42 feet. The effect was less than pretty. Though environmental studies predicted a “minimal impact” on the Savannah Wildlife Refuge, saltwater pushed its way 13 miles upriver, and 25 percent of the Refuge has been lost to saltwater contamination.
Two other serious environmental issues cropped up after the deepening in 1994. The endangered shortnose sturgeon, presently near extinction in the Savannah River, places the proposed deepening up against the revered Endangered Species Act. Also, the river’s striped bass population, once abundant, is barely surviving the increased salt content since the last deepening. Both species also suffer from lowered dissolved oxygen (DO) levels in the river. According to scientists, further deepening will lower DO levels even more.
River bank erosion and beach sand erosion have also increased measurably, and solving those erosion problems adds even more ongoing expense to any future project. Additional issues include impacts of chlorides on Savannah’s water intake facility, other impacts of dissolved oxygen deficits in the river, and impacts to the Floridan Aquifer.12
The Army Corps of Engineers took on an expanded role in GPA’s harbor deepening project in July 2001, when GPA signed a Memorandum of Understanding (MOU) with the Department of the Army. The Corps became the “lead agency”, responsible for ensuring compliance with Federal laws and regulations in the preparation of a Tier II EIS (Environmental Impact Statement).
On May 14, 2000, the Southern Environmental Law Center (SELC) filed suit on behalf of the National Wildlife Federation, the South Carolina Coastal Conservation League, the South Carolina Wildlife Federation, and the Coastal Georgia Center for Sustainable Development, challenging the Corps’ premature approval of the 230 million dollar dredging project in violation of Federal environmental laws. Although the suit was dismissed in March 2001 as being premature, the Federal Court issued an opinion (see attached Exhibit A) guaranteeing that the Corps will have to consider all of the issues raised by the SELC, among them impacts to salinity levels, DO levels and aquatic wildlife, before a final decision is made on whether to deepen the Savannah shipping channel.13
The Savannah River Expansion Project was listed as one of the ten most wasteful and harmful Corps projects in the nation in a March 2000 report entitled Troubled Waters by the National Wildlife Federation and Taxpayers for Common Sense.14 Previous harbor deepenings have destroyed more than half of the rare tidal freshwater wetlands originally found in the area. Although the freshwater wetlands have shown some signs of minimal recovery in recent years, further deepening of the channel could degrade a substantial portion of what remains. Furthermore, deepening the harbor could irreparably harm the Upper Floridan aquifer, which is already experiencing problems with saltwater intrusion. In any case, the negative environmental impacts would be profound, and the ensuing assault on resources and wildlife is unwarranted.
B. Water Withdrawal and Aquifer Infiltration
Georgia has historically been blessed with an apparent abundance of water resources. However, that history of abundance is over. Water is an essential, irreplaceable, and valuable public resource, yet to date no entity in Georgia has been required to pay for its withdrawal, regardless of the quantity and nature of its use. Georgia’s water law for surface and ground water withdrawals greater than 100,000 gallons per day is regulated by a comprehensive permit system. Georgia’s surface water law can be classified as a form of the Regulated Riparian doctrine, and Georgia’s groundwater law can be classified as a form of the Regulated Reasonable Use doctrine for groundwater.
For withdrawals from surface sources that are less than 100,000 gallons per day (gpd), Georgia’s water law closely adheres to the common law Riparian Rights doctrine, clarified by decisions of the Georgia Supreme Court in specific instances. For withdrawals from groundwater sources that are less than 100,000 gallons per day, Georgia’s water law is unclear.15
Water withdrawal rates in Georgia are increasing, and we are already reaching a point where supply simply cannot meet with demand. The State Environmental Protection Division has said that Lake Lanier and the Chattahoochee River through metro Atlanta can safely yield 705 million gallons of water per day, averaged over a year, an amount not expected to be needed before 2030. But EPD has issued permits to 33 counties, cities and private users that would allow them to withdraw more than 760 million gallons of water a day, an amount clearly in excess of what EPD itself says these water sources can safely yield. Further, regardless of what the State says it is safe to withdraw, the Federal Government has said that Atlanta is already pushing the limit to which it is legally entitled. EPD says withdrawal limits are purposely set high to accommodate summer days when metro Atlantans cool off by turning on their spigots. Depending on the area, summer usage can range anywhere from 20 percent to 50 percent higher than winter use.
It wasn’t until the mid-1980s that EPD began taking an inventory of how much water was being used and how much use had been permitted. There was not a reason to do it before that, it says, because the amount of water withdrawn for human use was considered minimal. Water withdrawal from the Chattahoochee River and Lake Lanier for the metro Atlanta area has risen from 331 million gallons per day in 1990 to 429 million gallons per day in 2001. Atlanta sees the Savannah River as one possible source for water to support its uncontrolled growth. Greenville, S.C., currently takes 54 million gallons per day out of the Savannah River and empties it into another basin. The city plans to eventually increase it to 150 million gallons. Habersham County, Georgia has a proposal to take 12.5 million gallons out of the Savannah Basin and return it to the Chattahoochee River Basin. And though we know it is a finite resource, we continue to issue permits for water withdrawal. Almost one-third of the water withdrawal permits in the State are issued for the 15-county area in the agricultural belt of the Lower Flint River Basin in Southwest Georgia, most for farming and irrigation use. EPD currently receives seven hundred new irrigation permit applications each year. This significant increase in agricultural irrigation has improved crop yields during dry months and years, but has also had a dramatic effect on water resources in agricultural regions of the State.
Surface water sources are limited during dry summer months due to increased withdrawals and evaporation, so many farmers drill wells for irrigation. In Southwest Georgia, increased groundwater pumping for agricultural irrigation has lowered the water table over large areas, which poses a serious threat to public and private water systems because it can cause shallower wells in the area to run dry.
Groundwater from the Upper Floridan Aquifer in Southwest Georgia is important not only as a drinking water source and to support agricultural irrigation, but also for its vital function of discharging water to the Flint River and its tributaries. Current studies suggest that over withdrawing of groundwater supplies may dry up the tributaries of the Lower Flint River Basin.
Overall, the Floridan Aquifer could not be a more vital resource for coastal Georgia. Almost every drop of water for municipal, industrial and agricultural use in coastal Georgia is drawn from the Upper Floridan Aquifer. In terms of drinking water, roughly fifty percent of the entire State’s drinking water comes from the Upper Floridan Aquifer, and the aquifer supplies nearly one hundred percent of the drinking water for coastal counties. Only the Great Lakes provide a larger source of fresh water than the Upper and Lower Floridan Aquifers combined.16
Since the 1900s, population growth and an influx of industrial companies which use large amounts of water (such as paper mills) have begun taxing the aquifer, creating cones of depression (or low pressure zones). These areas of water withdrawal are allowing saltwater to penetrate the confining layers of the aquifer and contaminate the freshwater sources within. Over the past 100 years, increased pumping has resulted in decreased water pressure around Savannah, which in turn has allowed saltwater intrusion near Hilton Head and Brunswick. Before people began pumping water from the aquifer, pressure within was high enough to keep saltwater out. Over pumping has diminished pressure, allowing saltwater to infiltrate the aquifer.
In 1997, Georgia agreed to place a cap on pumping from portions of the Floridan aquifer. When South Carolina complained of saltwater entering the aquifer near Hilton Head, the results were both quick and clear. Chatham, Glynn and parts of Bryan and Effingham counties cannot boost their daily allotment of aquifer water. By the end of 2005, the State will be forced to put in place a plan to prevent further depletion of this resource. Five years ago, at the same time the cap was put into place, EPD launched the Sound Science Initiative to study the saltwater intrusion and prepare a water supply strategy for the coast by the 2005 deadline. The Sound Science Initiative plans to scope out more thorough studies of the interaction between aquifer units and how pumping from one may affect the other.
To continue growing without access to more water from the Upper Floridan Aquifer, the coastal city of Richmond Hill has sought to tap into the Lower Floridan Aquifer. The Georgia Conservancy and a number of other environmental groups, scientists and local governments helped persuade EPD to turn down Richmond Hill’s application. Had the application been approved, it would have been the first public water system to use water other than for test purposes. The connectivity between the upper and lower aquifers, however, is poorly understood, and tapping the lower aquifer could impair both resources. After extensive study and conversations with EPD, Director Harold Reheis based his decision to deny the application on the need to protect the Upper Floridan Aquifer from any more potential harm. Inexplicably, Reheis and EPD changed course and approved a settlement which would permit such withdrawal. All sides involved were dissatisfied with the proposed resolution and as such, this matter is currently in litigation.
In addition to aquifer infiltration and depletion, industrial water withdrawal and use continues to grow, despite the potentially dangerous environmental impact. The biggest pumpers in coastal Georgia counties are Rayonier, Inc. at almost 80 million gallons per day, Georgia-Pacific Corporation at roughly 50 million gallons per day, and Durango Paper Company at just above 40 million gallons per day.17 Permit holders can vary withdrawal each month, as long as their yearly tally ends within the permitted allotment.
In Glynn County, the Glynn County Development Commission approved site plans from Mirant Corporation and Live Oaks Power Company for a 300 million dollar plant on ninety acres near Sterling, a community located about ten miles north of Brunswick. Among Mirant’s requirements are access to a natural gas line (one is planned near the plant), and up to 4.5 million gallons of water per day. Environmental groups have spoken out against the plant’s use of water, 1.5 million gallons from the Miocene aquifer and 3 million gallons of Brunswick’s treated wastewater. The irony here is that, at this point, additional energy is not needed in Georgia. Instead, the power will be sold wholesale to energy companies outside Georgia.
Studies are needed to determine how important the Miocene is to the Altamaha and whether that aquifer somehow is connected to the deeper Floridan aquifer, Glynn County’s primary source of drinking water. Meanwhile, people who live in the area are already experiencing lower water in their wells- long before the plant is even built- possibly because the Miocene increasingly is being used after the State capped withdrawals from the Floridan.18
Statewide, but particularly in Georgia’s coastal areas, it is clear that increasingly excessive water withdrawal and aquifer infiltration continues to wreak havoc with both water supply and integrity.
C. Reservoirs- Doing More Harm than Good
The Georgia EPD is promoting reservoirs as a solution to the current drought. In the last decade, at least 26 permits have been issued to construct reservoirs. Currently, an additional 17 reservoirs are either proposed or in the permitting stage (see attached Exhibit B).
People of all walks of life firmly believe that reservoirs create more problems than they solve. Reservoirs alter the natural hydrologic pattern of streams and rivers. They change the timing, amount and duration of flows both upstream and down from the dam. This interruption of stream flow imperils native fish, mussels and other aquatic wildlife. A recent University of Georgia study reports that “the [streams and rivers] in Georgia’s 14 major river basins carry water, sediment, nutrients, animals and energy literally from the mountains to the sea”.19
Reservoirs are unnatural features on the landscape that block this natural flow. As a result, more water is lost from reservoir surfaces through evaporation than from rivers, a fact which becomes particularly important during the hot summers when water levels are already low.
Reservoirs fill with sediment that would naturally be carried to the coastal wetlands and beaches. The ability of a river to dilute waste is decreased and causes unhealthy water quality. Innumerable native fish that rely on flowing rivers are unable to survive in lakes or in the unnatural flows downstream of dams. In addition, entire populations of fish have been lost when isolated by dams in small portions of the watershed that cannot provide their habitat needs. Creating lakes and ponds stocked with game fish drastically alters the aquatic ecosystem. Studies in the Southeast have shown such impoundments may cause a 25 to 50 percent loss of native fish species.
In a State with few natural lakes, Georgia has more than 68,000 man-made ponds and impoundments, the overwhelmingly vast majority of which are small farm ponds of less than ½ acre. Few approach the size and scope of the currently proposed water supply reservoirs. These reservoirs threaten much of Georgia’s remaining aquatic biodiversity. They increase the vulnerability of aquatic communities to floods, drought and other natural events. They raise the likelihood of local extinction of native fish and mussel species. Effects of reservoirs are pervasive and contribute to Georgia having one of the largest numbers of threatened and endangered fish and aquatic wildlife in the country.
The environmental effects of reservoirs, even small ones, are far reaching. Although the Clean Water Act requires mitigation, these efforts target only impacts to wetlands and channels affected by the actual dam and impounded water. Only removal of the dam can replace the loss of access to headwater streams and other water habitat that support the rich aquatic fauna that depend on these areas.
Georgia already has numerous large reservoirs on main stem rivers and thousands of small impoundments on tributaries. Their cumulative impact, combined with hundreds of proposed new impoundments, will cause irreparable harm to stream hydrology, aquatic ecosystems and downstream water availability.
With 17 reservoirs currently under development in North Georgia and no limit to the number that can be proposed, the need for a thorough and scientific impact assessment has never been more important. Ultimately, their continued construction will only serve to accelerate the loss of Georgia’s biodiversity, and exacerbate conflicts between upstream and downstream water users.
On January 22, 2003, on behalf of a coalition of environmental groups, spearheaded by Georgia River Network and Altamaha Riverkeeper, SELC brought suit against the Army Corps of Engineers, challenging its issuance of §404 CWA Permit which would allow the construction of a nearly 1500 acre reservoir on Tussahaw Creek in Henry and Butts Counties. This suit, building on prior administrative challenges brought by this author and his firm, challenges the failure to consider the direct, indirect and cumulative impacts of the various reservoirs proposed. The proposed Tussahaw Reservoir itself would destroy 252 acres of wetlands, flood 1500 acres of land, and completely alter and destroy nearly 17 miles of riverine corridors on four major creeks.
All totaled, the 17 proposed reservoirs will, if constructed, irrevocably alter the very landscape of tens of thousands of acres of wetlands and their associated ecosystems.
D. Marsh Hammocks Development- Too High a Price
Between the barrier islands off the coast and the mainland lie mile after mile of salt marsh estuaries. Georgia is fortunate to have more coastal marsh- nearly 400,000 acres- than any other State. The coastal counties of Chatham, Bryan and Liberty are home to 734 undeveloped marsh hammocks. These tiny islands in the coastal marshes are extraordinarily beautiful, and a growing number of developers know that.
This estuarine ecosystem is an integral part of both the ecology and the economy of the region. The marshes mitigate the effects of flooding, water pollution, and erosion. They also serve as a habitat for many species of shellfish and other wildlife, in addition to being primary breeding grounds for many commercially and recreationally important fish species.
Over the last 25 years, development along the salt marsh creeks has increased dramatically. Despite the passage of legislation to guide growth in environmentally sensitive coastal and wetland areas, this trend now threatens to upset the delicate balance of the marsh ecosystem.
Scenic America, a national conservation organization, named Georgia’s marsh islands “one of the most endangered scenic places in America”. The islands were designated one of America’s “Last Chance Landscapes”- endangered places of beauty or distinctive community character with both a pending threat and a potential solution.20
As development along waterfront areas on the larger islands and the mainland reaches capacity, developers are increasingly turning to the tiny marshland hammocks. While there is no set definition of the term “hammock”, the Coastal Marsh Hammock Advisory Council defines a marsh hammock as “a small back barrier island”. Islands along the Georgia coast can be divided into two types: Barrier-Island Complexes and Back-Barrier Islands. The Council defines an island as a “naturally occurring or man-made topographic feature with an elevation equal to or greater than 5.6 feet above mean sea level that is, or in its natural state was, surrounded by marsh (as defined in the Georgia Coastal Marshlands Protection Act), water or both.
Barrier Islands, which border the ocean, are defined by scientific and common usage. Barrier Island complexes along the Georgia coast typically consist of a group of islands that were formed by similar geological processes.
Back-Barrier Islands are all other islands between the landward boundary of the barrier island complexes and the mainland. Natural Back-Barrier Islands are erosional remnants of pre-existing upland, whereas man-made Back-Barrier Islands are comprised of dredge spoil material or ballast stones. These islands may or may not have existing connections to the mainland by bridges, causeways or other man-made structures.21
Hammocks are a last resort, not only for developers, but also for many wildlife species that have been pushed out of their larger habitat areas by the advancing onslaught of human development. Along with countless less recognizable species, bald eagles, otters, mink and endangered wood storks have been known to seek refuge on the isolated hammocks.
While this recent wave of development is disturbing because of the loss of habitat on the hammocks themselves, the environmental impacts on the wider estuarine ecosystem are perhaps of even greater concern. Newly developed hammocks become sources for pollutants that foul critical fish and shellfish nurseries with oil, gas, fertilizer, antifreeze, pesticides and herbicides. Road construction for new developments alters storm water runoff, and new bridges lead to “shading out” of areas of marsh grass, dramatically altering the marshland.
Even with the cost of building bridges, demand is such that it is now economically profitable to develop marsh hammocks. Continued growth in the demand for waterfront development on the Georgia coast suggests that, if hammocks do not receive stronger protections, there could soon be a network of bridges and roads crisscrossing the marsh flats in order to provide access to the new developments.
In 2001, my firm, Stack and Associates, was contacted by property owners and members of the Bluff Homeowners Association, who were deeply concerned about proposed plans to build three private bridges across 900 feet of marsh, thereby linking three hammocks to the coastal mainland near Savannah. The developer, Emerald Pointe, LLC, planned to build up to 75 houses on the largest island, and possibly a marina. We enlisted the assistance of the Southern Environmental Law Center (SELC), which then went on to represent the Center for a Sustainable Coast, the Altamaha Riverkeeper, and the Georgia Chapter of the Sierra Club, filing a petition challenging the State permit issued to Emerald Pointe, LLC for this construction.
Bluff Homeowners Association subsequently negotiated a settlement with Emerald Pointe, the conditions of which limit the development to a maximum of 22 homes (21 of which would be on the largest of the hammocks), constructed in a radial pattern around the center, and the establishment of a green space on the peninsular area of the largest hammock. Additionally, the settlement provided for increased buffers throughout the development, along with an agreement prohibiting the construction of stadium type lighting, on-site sewage storage or disposal, and fueling areas. The aforementioned marina would also not be constructed, rather, a minimum number of boat slips could be erected in its place. The remaining Plaintiffs maintained their administrative challenge, however, and the case was presented before the Honorable Jesse Altman in a multi-day hearing conducted in Savannah, who subsequently issued a Final Order in the matter permitting construction (see attached Exhibit C).
Judge Altman’s Order was subsequently appealed to the Fulton County Superior Court. In an Order dated October 24, 2002 (see attached Exhibit D), Judge Constance Russell literally adopted the phraseology this author had expressed from day one, when she opined that these bridges were “not roads to nowhere”. Accordingly, inasmuch as planned impacts from the entire project had not been considered, the ALJ’s decision was reversed and remanded. With ever-increasing levels of attention interest being focused on the marsh hammocks, the need for more stringent regulatory framework to protect this endangered area seems clear. The Emerald Pointe case prompted the State to form the Coastal Marsh Hammocks Advisory Council, which is charged with finding ways to strengthen the 30-year-old Coastal Marshlands Protection Act. In April 2002, the Council issued a series of recommendations, ranging from prohibition of development on hammocks fewer than 10 acres to requiring strict controls on those that can be developed.
The battle between environmental needs and private and industrial property rights, however, continues to be waged.
ENVIRONMENTAL, LAND USE AND HISTORIC PRESERVATION LAWS:
FRAMEWORK FOR SOLUTIONS
A prime example of the interplay between environmental and land use law is the recent efforts of residents of Southeast Chatham County in the creation and implementation of a Southeast Chatham County Community Plan. Southeast Chatham County encompasses the unincorporated areas south and east of the City of Savannah and consists of back barrier islands, (islands situated between barrier islands and the mainland and also known as hammocks) and peninsular uplands adjacent to a rich estuarine ecosystem that is the habitat for thousands of marine and land species. Southeast Chatham County is also home to many of Georgia’s historical neighborhoods. The area is becoming increasingly vulnerable to development, particularly high density and commercial development. This vulnerability is a result of the inadequate zoning procedures for public participation in the development review process; the lack of local representation on the local planning agency; inadequate enforcement of zoning ordinances; and the lack of natural resource protection, including the uncontrolled cutting of larger trees, development impacts on marshes, and the loss of open space. The threat of more intensive development is accompanied by the threat of increased traffic, air pollution, and increased stormwater runoff and water pollution. More development means the loss of pristine back barrier islands to new development and the associated loss of ecologic functions, wildlife habitat, scenic vistas, and historic resources. Southeast Chatham Community Plan, January 14, 2003.
The last decade has already brought significant changes to the landscape of Southeast Chatham County including the effects of urban sprawl; large “big box” commercial development; expansion of non-conforming commercial uses; and increasing concerns about future development of the area’s open spaces. Accustomed to the semi-rural and natural landscape of their community and spurred by the rapid growth of the Metropolitan Savannah Area, residents of Southeast Chatham County are concerned about potential development impacts including loss of open space, traffic congestion, commercial intrusion, and encroaching subdivisions. The strong desire of most residents to place limits on growth corresponds with federal, state, and local public policy goals for protection of water quality and coastal resources, restraints on development in hurricane prone areas, and limiting urban sprawl. Consistent with this, the plan seeks to maintain relatively low residential densities, emphasize quality of life and public safety in new development, limit commercial development, protect coastal habitats, and enhance landscaping and tree canopy. The goal of the Southeast Chatham Community Plan is to update the area’s outdated land use and zoning provisions as a means of addressing development concerns. The specific purposes of the plan are to preserve and enhance existing neighborhoods; limit commercial development and road expansion in established residential neighborhoods; identify appropriate standards for new residential and commercial development; and protect environmental quality. Southeast Chatham Community Plan, January 14, 2003.
A. The Challenges Involved In the Representation of Citizens’ Groups in Land Use and Environmental Law
The purpose of zoning is to protect and preserve the public health, safety, morals and general welfare of the community. Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). Zoning is a political game with the various players consisting of landowners, developers, and government agencies. Georgia is a landowner’s rights state and the law favors the free use of one’s property. Beugnot v. Coweta County, 231 Ga. App. 715 (1998); Bo Fancy Products, Inc. v. Rabun County Board of Commissioners, 267 Ga. 341 (1996); Harrison v. City of Clayton, 261 Ga. 513 (1991); Glynn County v. Palmatory, 247 Ga. 570, 577 (1981); City of Doraville v. Willows, Inc., 236 Ga. 488 (1976); Tuggle v. Manning, 224 Ga. 29 (1968); See also, Fayette County v. Seagraves, 245 Ga. 196 (1980); City of Cordele v. Hill, 250 Ga. 628 (1983); Board of Commissioners of Henry County v. Welch, 253 Ga. 682 (1985); Banks County v. Chambers of Georgia, Inc., 264 Ga. 421 (1994). Oftentimes, this policy comes at the expense of the welfare of the surrounding communities. However, in these modern times of sprawling developments, neighborhood involvement in zoning decisions has emerged as an important factor in land use planning. Most, if not all, counties now hold public hearings early in the zoning process giving neighboring landowners a voice in the zoning decisions. See O.C.G.A. 36-6-1 et seq.
By necessity, homeowner groups have become more sophisticated, organized, and influential in the political zoning game. Organized opposition from neighborhood groups and civic organizations is increasingly driven by developers whose only commitment is to the short term bottom line of their projects. The result is a changing landscape of the state to the detriment of the aesthetics of communities and the environment. Much of the blame for the problems of air and water quality is on the developers. Zoning and land use ordinances have done little to protect the community and prevent these problems. The tremendous growth over the past years in Georgia and nationwide along with an increasing concern for the protection of natural resources have heightened the need to carefully manage future development. Because of the differing concerns of the business and residential communities, striking the delicate balance between the need for continued growth and development and the need to preserve community resources presents an enormous challenge to residents, developers and planners.
1. Land Use Issues
In Georgia, it is not a matter of whether the land will be developed, but how it will be developed. The zoning process involves three important steps. First, the planning staff reviews a zoning request and makes a recommendation to the planning commission. A public hearing is then held before the planning commission which reviews the request and makes its own recommendation. If the request is for a re-zoning of the property, the local governing body (i.e., the County Commission or City Council) holds a public hearing and makes a final decision regarding the request. If the request is for the approval of a site plan, subdivision plan, or variance, the local planning commission has the final word. Neighborhood groups in opposition to zoning requests should be present and/or represented at all public hearings throughout the process.
What happens if the neighborhood’s opposition to the zoning fails at the local government level? Neighborhood and civic groups are increasingly becoming involved in litigation with developers and their local governments at the state and federal levels. Injunctions, declaratory judgments, damages, writs of mandamus, and appellate reversals of local government decisions are some of the remedies available to plaintiffs in land use cases in federal and state court. In Georgia, however, courts cannot rezone property, but can only remand the case back to the local government for reconsideration. City of Atlanta v. McLenan, 237 Ga. 25 (1976). In order to make it that far, a neighborhood group must have standing to challenge the zoning decision.
An association has standing to bring suit on behalf of its members when the members would otherwise have standing to sue in their own right, and the interests it seeks to protect are germane to the purpose of the association. Aldridge v. Georgia Hospitality & Travel Association, 251 Ga. 234 (1983). An association that does not own property which would be affected by the development has standing regarding the enforcement of a zoning ordinance when it is joined by another plaintiff that owns such property or otherwise satisfies the “substantial interest-aggrieved citizen” test. Preservation Alliance of Savannah, Inc. v. Norfolk Southern Corporation, 202 Ga.App. 116 (1991); Lindsey Creek Area Civic Association, et al v. Consolidated Government of Columbus, 249 Ga. 488 (1982); Powers Ferry Civic Association, et al v. Life Insurance Company of Georgia, 250 Ga. 419 (1982).
To establish standing to challenge a zoning decision, plaintiffs need to show that they possess a substantial interest that would be affected by the development and that the impact of development would cause them special damage or injury not common to all property owners similarly situated. Dekalb County v. Wapensky, 253 Ga. 747 (1984); AT&T Wireless PCS, Inc. v. Leafmore Forest Condominium Ass’n of Owners, 235 Ga.App. 319 (1998). “Similarly situated” for purposes of the standing requirement that zoning would cause special damage or injury not common to all property owners similarly situated, refers to persons in the general community who may merely suffer inconvenience and excludes those persons who stand to suffer damage or injury to their property which derogates from their reasonable use and enjoyment of it. AT&T Wireless PCS, Inc. v. Leafmore Forest Condominium Ass’n of Owners, supra. Plaintiffs have a substantial interest that will be affected by the development where it will interfere with their enjoyment of their property rights. AT&T Wireless PCS, Inc. v. Leafmore Forest Condominium Ass’n of Owners, supra. As to special damage or injury, Plaintiffs may produce evidence that the development might cause a decline in the value of their property. However, while “loss of economic value of land may be one manifestation of damages caused by re-zoning and may be sufficient by itself to support standing, […] evidence of a change in property value is not required as a prerequisite for standing.” Id. at 321. Where the parties who seek standing own property contiguous to the re-zoned lot and have to live with any changes in the use of the property, a requirement that they prove a change in property value would be inappropriate.” Id.
The fact that some plaintiffs do not live directly adjacent to the property and/or proposed development is not a requirement in this type of case. See Miller v. Fulton County, 258 Ga. 882 (1989). Plaintiffs who own property across the street from a proposed development would be sufficiently affected by the proposed development such that they have an “interest of real worth and importance” in this case. Id. (citing Wapensky, supra.) In the cases where standing has been upheld, the protesting property owner has been able to produce very particularized, specific evidence of damage. In such cases, the neighboring landowners have either established the likelihood of a very precise loss in property value, or been able to prove that their enjoyment of their property will be directly impacted by increased noise or other visual interferences. See Burry v. Dekalb County, (165 Ga.App. 246 (1983) (finding standing based on property owner’s testimony that his home was uniquely situated – across the road; that he would suffer a $20,000 loss of value; and that this loss was considerably more than other homeowners would suffer who were more distantly located or had buffer zones separating the adjoining properties); City of Marietta v. Traton, 253 Ga. 64 (holding that a substantial loss in marketability of new homes in subdivision was sufficient to confer standing); Brand v. Wilson, 252 Ga. 416 (1984)(finding that evidence that property would suffer a reduction in value of between 15 and 20 percent by reason of te re-zoning was sufficient basis for standing); DeKalb County v. Wapensky, 253 Ga. 47 (1984)(holding that neighboring property owners challenged a height variance to allow a high-rise condo had standing where they presented evidence of an invasion of peace and privacy and a reduction in property values); Moore v. Maloney, 253 Ga. 504 (1984)(finding that property owners had standing because they produced evidence that the development would create visual intrusions on peace and privacy and traffic problems related to the physical layout of the lot and the intersection, not just an increase in traffic); McClure v. Davidson, 258 Ga. 706 (1988)(holding that landowners had standing to challenge re-zoning where they offered testimony that their property would suffer reduction in value of between 20 to 50 percent).
While it is true that increased traffic in a central business district is insufficient to show special damage, the following have been held sufficient: diminution in value of a homeowner’s property exceeding that of the neighborhood in general, Moore v. Maloney, 253 Ga. 504, 506 (1984); noise, odor and visual intrusion on peace and privacy, DeKalb County v. Wapensky, supra, 253 Ga. at 49; Moore v. Maloney, supra, 253 Ga. at 506; and traffic problems related to the particular property, Id. Miller v. Fulton County, 258 Ga. at 884. In none of these cases has the mere fact that traffic may increase or become congested, even directly in front of or next to the protesting party’s property, been held sufficient alone to confer standing. Victoria Corporation v. Atlanta Merchandise Mart; Dunaway v. City of Marietta; Goddard v. Irby. The only case which even considers traffic as relevant to standing, Moore v. Maloney, noted that traffic problems (i.e. safety issues) would be occasioned by the re-zoned property (not mere congestion or inconvenience), and also involved the peace and privacy issues demonstrated by adjacent property owners.
Possible adverse environmental effects of the development are disregarded in considering standing. Lindsey Creek Area Civic Association, supra; Powers Ferry Civic Association, supra; Columbus v. Diaz-Verson, supra. The fact the development would cause flooding or trash accumulation, or other similar undesirable results are insufficient to confer standing because it is presumed that the local government will enforce its other development codes and environmental regulations to control such problems. Id.
However, the courts have also held that “whether a property owner may challenge the re-zoning of a neighbor’s property is a different question than whether such owner may prevent his neighbor from developing his property in violation of its existing zoning.” Head v. Dekalb County, et al, 246 Ga.App. 756, 761 at n. 15. (2000). Thus, property owners residing in the district where the zoning is force may seek to prevent their neighbors from developing or using their property in violation of its existing zoning without showing special damages. Palmer v. Tomlinson, 217 Ga. 399, 400 (1961); Rock v. Head, 254 Ga.App. 382 (2002).
STATUTORY, REGULATORY AND COMMON LAW TOOLS
FOR NEIGHBORHOOD GROUPS
When pre-development challenges fail, where are concerned neighborhood and civic groups left? They must bear the brunt of the negative effects of development on their communities. Therefore, they often turn to a handful of federal and state statutes which provide remedies or serve as grounds for challenges by property owners who are subjected to the damaging effects of this development.
I. The Clean Water Act, 33 U.S.C. §§ 1251 et seq.
Growing public awareness and concern for controlling water pollution led to the enactment of the Federal Water Pollution Control Act Amendments of 1972. As amended in 1977, this law became commonly known as the Clean Water Act (CWA). The Act established the basic structure for regulating discharges of pollutants into the waters of the United States. It gave EPA the authority to implement pollution control programs such as setting wastewater standards for industry. The Clean Water Act also continued requirements to set water quality standards for all contaminants in surface waters. The Act made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions. It also funded the construction of sewage treatment plants under the construction grants program and recognized the need for planning to address the critical problems posed by nonpoint source pollution.
Subsequent enactments modified some of the earlier CWA provisions. Revisions in 1981 streamlined the municipal construction grants process, improving the capabilities of treatment plants built under the program. Changes in 1987 phased out the construction grants program, replacing it with the State Water Pollution Control Revolving Fund, more commonly known as the Clean Water State Revolving Fund. This new funding strategy addressed water quality needs by building on EPA-State partnerships.
The Clean Water Act was enacted to protect the quality of our nation’s waterways. In creating this legislation, Congress initially intended to eliminate all pollution discharges into our waterways. Unfortunately, this goal has not been realized. Instead, under Section 402 of the Act, industries and municipalities are allowed to discharge pollutants into the waters of the State under a program called the National Pollution Discharge Elimination System (NPDES).
Under this program, an industry or municipality can receive a permit to discharge specific amounts of pollutants. The Georgia EPD has been delegated the authority for setting and enforcing NPDES discharge permit limits by the Federal Environmental Protection Agency (EPA). NPDES permits are up for renewal every five years. Interested citizens can comment on the permit limits, and, in some cases, EPD holds a public hearing to hear citizens concerns. Permits may be appealed within 30 days of their issuance.
NPDES permit holders are required to submit a monthly Discharge Monitoring Report (DMR) on their discharge. It is self-reported. Georgia does not charge a fee for discharging pollutants into our waterways but the State can assess fines and penalties for permittees who exceed their permit limits. Failure to file a DMR or falsifying a report can result in a fine.
The Clean Water Act and its regulatory framework are an integral, although often overlooked, mechanism used to protect Georgia’s coastal water resources. Citizens utilize the Act to monitor the discharges of industries and municipalities, to comment on and influence permit conditions, and to develop regionwide and statewide databases on water quality and quantity issues.
The Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”), provides for a private right of action to challenge certain development activities that result in violations of the Act. For example, in Driscoll v. Adams, 181 F.3d 1285 (11th Cir. 1999), a case brought by the author and his firm, a group of landowners filed suit against a neighboring property owner for violations of the CWA stemming from discharges of stormwater during the development of the property. The CWA absolutely prohibits the discharge of any pollutant into waters of the United States from any source except where a permit under the Act has been obtained. 33 U.S.C. § 1311; City of Milwaukee v. Illinois, 451 U.S. 304, 310-311 (1981). The citizen suit provision of the CWA permits citizens to bring an action against any person who is allegedly discharging a pollutant without a permit. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Company, Inc., 73 F.3d 546, 559 (5th Cir. 1996). To establish a violation of the CWA’s permit requirements, plaintiffs must demonstrate that defendants (1) discharged or “added” (2) a pollutant (3) to navigable waters (4) from a point source (5) without a permit. Georgia v. City of East Ridge, 949 F.Supp. 1571, 1575-1576 (N.D.Ga. 1996); Beartooth Alliance v. Crown Butte Mines, 904 F. Supp. 1168, 1171 (D. Montana, 1995), citing Mokelumne River v. East Bay Util., 13 F.3d 305, 308 (9th Cir. 1993); National Wildlife Fed’n v. Gorusch, 693 F.2d 156, 165 (D.C.Cir. 1982).
Sediment, rock, sand, and dirt are pollutants under the CWA, 33 U.S.C. § 1362(6); United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1505-06 (11th Cir. 1985), vacated and remanded on other grounds, 481 U.S. 1034 (1987). “Navigable waters” is a broad term that includes unnamed tributaries and most surface waters. 40 CFR 122.2; Beartooth Alliance v. Crown Butte Mines, supra at 1173 (1995). Stormwater runoff from a development site is a point source. Hughey v. JMS Development Corp., 78 F.3d 1523, 1525 n.1 (11th Cir. 1996)(holding that “[w]hen rain water flows from a site where land disturbing activities have been conducted, such as grading and clearing, it falls within this description”).
II. The Federal Solid Waste Disposal Act, [aka Resource Conservation and Recovery Act (“RCRA”)], 42 U.S.C. §§ 6901 et seq.
The Federal Solid Waste Disposal Act, better known as RCRA (Resource Conservation and Recovery Act), prohibits the open dumping of solid waste. 42 U.S.C. § 6945(a). Open dumping includes disposal of solid waste anywhere other than at a sanitary landfill. Disposal means “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903 (3). Solid waste includes discarded material, garbage, refuse, waste sludge from treatment facilities, and any type of material which is discarded except for domestic sewage, irrigation return flows permitted pursuant to the CWA NPDES scheme, and nuclear waste. 42 U.S.C. § 6903 (27). Indeed, in general, this term encompasses anything which is inherently waste-like or abandoned. RCRA provides citizens a private right of action for violations of the terms of the statute. However, in some instances, enforcement of certain RCRA provisions are delegated to the states, as is the case in Georgia.
III. The Coastal Marshlands Protection Act, O.C.G.A. §§ 12-5-260 et seq.
Originally adopted in 1970 and amended in 1992, the Coastal Marshlands Protection Act provides the Coastal Resources Division with the authority to protect tidal wetlands. The Act manages certain activities and structures in marsh areas and requires permits for other activities and structures. Erecting structures, dredging, or filling marsh areas requires a Marshlands Protection Committee Permit administered through the Coastal Resources Division. In cases where the proposed activity involves construction on state-owned tidal water bottoms, a Revocable License issued by the Coastal Resources Division may also be required.
The jurisdiction of the Coastal Marshlands Protection Act includes marshlands, intertidal areas, mudflats, tidal water bottoms, and salt marsh areas within the estuarine areas of the State. The estuarine areas are defined as all tidally influenced waters, marshes, and marshlands lying within a tide-elevation range from 5.6 feet above mean tide level and below.
Permits for marinas, community docks, boat ramps, recreational docks and piers within the jurisdiction of the Coastal Marshlands Protection Act are administered by the Coastal Resources Division. A lease is required to construct a marina. Private-use recreational docks are exempt from the Act but must obtain a Revocable License and U.S. Army Corps of Engineers dock permit.
A Coastal Marshlands Protection Act permit is required for any project which involves removing, filling, dredging, draining or otherwise altering any marshlands. In general, projects will be permitted only if they do not harm or alter the natural flow of navigational waters; do not increase soil erosion, shoaling channels or create stagnant pools; and do not interfere with conservation of marine life, wildlife or other resources. The Coastal Marshlands Protection Act also created the Coastal Marshlands Protection Committee, which evaluates proposed construction or development projects which might affect these areas. The Committee grants or denies permits for pending projects based on their environmental impact and the public interest. Projects must be water-dependent with no alternatives available.
In summary, the major provisions of the Coastal Marshlands Protection Act are:
- Protects tidal wetlands
- Requires permits for structures, dredging and filling
- Provides for the establishment of the Coastal Marshlands Protection Committee, responsible for granting or denying permits
IV. Georgia Coastal Management Act (O.C.G.A. §§ 12-5-320 et seq.),
Georgia Coastal Management Program and the Federal Coastal Zone Management Program
The influence of the ocean on Georgia’s coastal plain extends approximately 60 miles inland. An eight foot tidal range pushes seawater up coastal rivers twice daily, influencing their plants, fish and ecology, and consequently, human activity. The Georgia Coastal Management Program encompasses all tidally-influenced water bodies and areas economically tied to coastal resources; the State’s six coastal counties and five “second tier” counties, all tidal waters to the three-mile seaward limit of State jurisdiction, and all submerged lands under those waters.
The Georgia Department of Natural Resources (DNR) began its program development process in 1992. From the outset, Georgia officials realized that successful development of a Coastal Zone Management Program depended on extensive public involvement. An advisory committee, comprised of private citizens and local officials, worked with DNR through the completion of the effort. DNR also used public meetings, a quarterly newsletter, speeches and presentations, and printed materials to gather public input.
In 1994, the advisory committee convened nine public task forces made up of 120 people. The task force generated over 350 policy recommendations.
It is the mission of the Georgia Coastal Management Program to “balance economic development in Georgia’s coastal zone with the preservation of natural, environmental, historical, archeological, and recreational resources for the benefit of Georgia’s present and future generations.”22 The program is administered by DNR. While several different divisions within DNR have various responsibilities, the Coastal Resources Division (CRD) has many of the primary duties involved with managing Georgia’s coastal marshes, beaches, and ocean resources.
Through its enabling legislation, the Georgia Coastal Management Act, the Program also provides authority for additional State agencies to network and coordinate coastal resource related activities. The Georgia Coastal Management Act, passed on Earth Day in 1997, directs that DNR has the authority to prepare and administer a Georgia Coastal Management Program and to monitor and inform appropriate local, State and Federal agencies concerning enforcement of rules, regulations, and orders upon which the Georgia Coastal Management Program is based.
Federal approval of the Georgia Coastal Management Program did not come quickly or easily. In 1995, the State produced a draft Coastal Management Program document based on the premise that existing State laws and regulations were sufficient to gain Federal approval of the program, and no new laws would be needed. The State Attorney General’s office subsequently ruled otherwise, finding that new legislation would be required in order to seek Federal approval of the Coastal Management Program.
In 1996, a State Legislative Study Committee looked at whether to introduce coastal management legislation into the General Assembly. The Study Committee asked DNR to revise the program document and hold two public hearings before issuing its recommendation. After reviewing the revised document and hearing records, the Committee voted unanimously to recommend the introduction of the Georgia Coastal Management Act into the General Assembly, which subsequently passed the bill with little opposition, setting the stage for Federal program approval, which finally arrived in January 1998.
Georgia’s Federally-approved Coastal Management Program allows the State to:
- provide technical assistance and Coastal Incentive Grants to local governments for projects in coastal area communities
- provide better public education about coastal resources and the importance of thoughtful management
- simplify the permitting process and improve compliance with issued permits
- exercise greater control over Federal projects in the coastal areas through Federal consistency review
- improve environmental monitoring efforts to ensure the health of our coastal ecosystems
Some of the acts and codes which comprise the basic framework of the Georgia Coastal Management Program include the Endangered Wildlife Act of 1973, the Environmental Policy Act, the Game and Fish Code, and the Georgia Boat Safety Act, along with several we’ve discussed in this text, those being the Coastal Marshlands Protection Act, the Georgia Coastal Management Act (as mentioned earlier), and the Shore Protection Act (infra).
V. The Shore Protection Act, O.C.G.A. §§ 12-5-230 et seq.
The coastal sand dunes, beaches, sandbars and shoals comprise a vital natural resource system, known as the sand sharing system, which acts as a buffer to protect personal property and natural resources from the damaging effects of floods, winds, tides and erosion. The coastal sand dunes are the most inland portion of the sand sharing system. They are the fragile product of shoreline evolution, easily disturbed by actions harming their vegetation or inhibiting their natural development. Offshore sandbars and shoals are the system’s first line of defense against the potentially destructive energy generated by winds, tides, and storms, and they help to protect the onshore segment of the system by acting as reservoirs of sand for the beaches. Removal of sand from these bars and shoals can interrupt natural sand flows and can have unintended, undesirable and irreparable effects on the entire sand sharing system, particularly when the historical patterns of sand and water flows are not considered and accommodated.
The sand sharing system is an integral part of Georgia’s barrier islands, providing great protection to the State’s marshlands, estuaries and uplands from Atlantic storm activity. Ocean beaches provide an unparalleled natural recreation resource which has become vitally linked to the economy of Georgia’s coastal zone and to that of the entire State. This natural resource system is costly, if not impossible, to reconstruct or rehabilitate once it has been adversely affected by man’s related activities.
The Shore Protection Act is the primary legal authority for protection and management of Georgia’s sand sharing system. Its jurisdiction includes the submerged shoreline lands out to the three mile limit of State ownership, the sand beaches to ordinary high water mark, and the “dynamic dune field”, which is defined as the dynamic area of the beach and sand dunes, the ocean boundary of which extends to the ordinary high water mark, and the landward boundary of which is the first occurrence of either a live native tree 20 feet in height or greater, or of a structure existing on July 1, 1979.
The Shore Protection Act limits activities in shore areas and requires a permit for certain activities and structures on the beach. Construction activity in sand dunes is limited to temporary structures such as crosswalks, and then only by permit from the Georgia Coastal Resources Division. Structures such as boat basins, docks, marinas, and boat ramps are not allowed in the dunes. The Shore Protection Act prohibits operation of any motorized vehicle on or over the dynamic dune fields and beaches, except as authorized for emergency vehicles, and governmental vehicles for beach maintenance or research. In addition, the Act also prohibits storage or parking of sailboats, catamarans, or other marine craft in the dynamic dune field.
Direct permitting authority regarding any proposed facilities located within the jurisdictional area of the Shore Protection Act lies with the Shore Protection Committee. These permits are administered by the Georgia Coastal Resources Division.
Excepting special conditions, the Shore Protection Act permits only those projects which do not alter the natural topography of vegetation within beach and dune areas. Generally, permits for structures will be issued when the proposed project is landward of sand dunes, will retain at least a third of the area’s natural topography and vegetation, is designed according to hurricane resistant standards, construction activities are kept to a minimum and will maintain the normal functions of the sand sharing system, minimizing storm wave damage and erosion.
In summary, the major provisions of the Shore Protection Act are:
- Protects sand dunes, beaches, sandbars and shoals
- Limits construction activity to temporary structures by permit only
- Prohibits motorized vehicles on dunes and beaches
- Prohibits docks, marinas, boat ramps, and storage facilities in the dunes
- Provides for the establishment of the Shore Protection Committee
VI. Georgia Erosion & Sedimentation Act, O.C.G.A. §§ 12-7-1 et seq.
The Georgia Erosion & Sedimentation Act, O.C.G.A. §§ 12-7-1 et seq., is a state-wide comprehensive soil erosion and sediment control program enacted to conserve and protect the land, water, air and other resources of the state as a result of a widespread failure to apply proper soil erosion and sedimentation control practices in land clearing, soil movement, and construction activities. O.C.G.A. § 12-7-2. The Erosion & Sedimentation Act requires the local governing authority for each county and municipality in the state to establish procedures governing land-disturbing activities. The local governing authorities and/or the local planning and zoning commissions are charged with the enforcement of these standards. O.C.G.A. § 12-7-4, 12-7-5. The Erosion & Sedimentation Act provides for the minimum requirements to be incorporated into the State’s rules and regulations and local ordinances. For all land disturbing activities, the Georgia Erosion & Sedimentation Act requires best management practices (BMPs) which include proper installation and maintenance of facilities to control sediment and stormwater runoff and soil erosion. O.C.G.A. § 12-7-6. More specifically, the state’s requirements for BMPs are found in the State Soil and Water Conservation Commission’s Manual for Erosion and Sediment Control in Georgia (5th Edition) and provides that:
(1) stripping of vegetation, regarding and other development activities shall be conducted in such a manner so as to minimize erosion;
(2) cut and fill operations must be kept to a minimum;
(3) development plans must conform to topography and soil type, so as to create the lowest practicable erosion potential;
(4) whenever feasible, natural vegetation shall be retained, protected, and supplemented;
(5) the disturbed area and the duration of exposure to erosive elements shall be kept to practicable minimum;
(6) disturbed soil shall be stabilized as quickly as practicable;
(7) temporary vegetation or mulching shall be employed to protect exposed critical areas during development;
(8) permanent vegetation or mulching shall be employed to protect exposed areas during development;
(9) to the extent necessary, sediment in run-off water must be trapped by the use of debris basins, sediment basins, silt traps, or similar measures until the disturbed area is stabilized;
(10) adequate provision must be provided to minimize damage from surface water to the cut face of excavation or the sloping surfaces of fills;
(11) cuts and fills may not endanger adjoining property;
(12) fills may not encroach upon natural watercourses or constructed channels in a manner so as to adversely affect other property owners;
(13) grading equipment must cross flowing streams by the means of bridges or culverts, except when such methods are not feasible, provided in any case, that such crossings must be kept to a minimum;
(14) land-disturbing activity plans for erosion and sedimentation control shall include provisions for treatment or control of any source of sediments and adequate sedimentation control facilities to retain sediments on site or preclude sedimentation of adjacent waters beyond the levels specified in subsection (a) of this Code section
O.C.G.A. § 12-7-6. Oftentimes the local government agencies shirk their responsibility or either provide inadequate enforcement. Unfortunately, the Erosion & Sedimentation Act does not provide a private right for citizens to enforce these standards. However, property owners harmed by neighboring developments can use violations of the Erosion & Sedimentation Act as grounds for a claim of negligence.
VII. Georgia’s Waste Control Law, O.C.G.A. §§ 16-7-50 et. seq.
The Waste Control Law makes it unlawful to dump waste in any lakes, streams or surfaces waters of the State or on any private property without consent of the property owner. O.C.G.A. § 16-7-52. Waste is very broadly defined to mean any discarded substance and specifically includes “sand, gravel, slag, rubbish, waste material, tin cans, refuse, garbage, trash, debris, bottles, boxes, containers, papers, tires, appliances, mechanical equipment or parts, building or construction materials, wood, motor vehicle parts, oil, batteries, etc. O.C.G.A. 16-7-51(6). The term dump is also broadly defined to mean “to throw, discard, place, deposit, discharge, burn, or dispose of a substance.” O.C.G.A. 16-7-51(3). Furthermore, the Spill or Release Law, O.C.G.A. §§ 12-14-1 et seq., requires notice to the Environmental Protection Division of the State Department of Natural Resources Emergency Operations Center when there is a spill or release of oil or hazardous substances in an unknown and/or excess quantity. The term hazardous substance is very broadly defined. “Spill or release” means “discharge, deposit, dumping, emitting, releasing, leaking, etc” and includes the discharge of oil into waters of the state which will cause a significant film, sheen, or discoloration of the water surface or cause the deposition of sludge or emulsion beneath the water surface. O.C.G.A. 12-14-1(8).
VIII. Common Law Actions
Long before the advent of complex federal and state environmental statutes, the common law causes of action, namely nuisance, trespass, and negligence, were used in private party environmental actions. Claims for nuisance, trespass and negligence remain useful today to provide a private right of action for property damage and personal injury where environmental rules and regulations fail.
Claims for nuisance may arise from injuries resulting from dust, noise, fumes, light and standing water and from the discharge of sediment and increased volumes of silt-laden storm water as well as other physical invasions to plaintiffs’ properties. A nuisance is anything that causes hurt, inconvenience, or damage to another. O.C.G.A. 41-1-1; Life for God’s Stray Animals, Inc. v. New North Rockdale County Homeowners Assn., 253 Ga. 551 (1984). The rights of a property owner include the right to use and enjoy their property. Any unreasonable interference with this right constitutes a nuisance. O.C.G.A. 41-1-1; Duffield v. DeKalb County, 242 Ga. 432, 434 (1978); Miller v. Coleman, 213 Ga. 125 (1957); Cannon v. City of Macon, 81 Ga.App. 310, 320 (1950); City of Macon v. Cannon, 89 Ga.App. 484 (1954).
The fact that an act is lawful does not keep it from being a nuisance. Life for God’s Stray Animals, supra. Furthermore, compliance with state and federal regulations does not prohibit a jury from concluding an activity is a nuisance. Galaxy Carpet Mills, Inc. v. Massengill, 255 Ga. 360, 361 (1986). The “principal applied in numerous cases is that a lawful business may, by reason of its location in a residential area, cause hurt, inconvenience, and damage to those residing in the vicinity and become a nuisance per accidents (a nuisance by reason of circumstances and surroundings), against which an injunction will be granted. [Cits.]” Griffith v. Neman, 217 Ga. 533, 537 (1962); Galaxy Carpet Mills, supra. Land disturbing activity which creates an increase in surface water runoff, thereby interfering with the use and enjoyment of another’s property is a nuisance. Arvida/JMB Partners, L.P.-II v. Hadaway, 227 Ga.App. 335 (1997); Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188 (1977).
There are two types of nuisance actions: actions for public nuisances and actions for private nuisances. “A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals.” O.C.G.A. 41-1-2. A private nuisance causes hurt or inconvenience to a select group of people. Poultryland, Inc. v. Anderson, 200 Ga. 549, 558 (1946); Hammond v. City of Warner Robins, supra. In an action for a public nuisance where special injury and damages must be alleged. Exley v. Southern Cotton Oil Co., 151 F. 101, 105 (S.D. Ga. 1907). For the maintenance of a private nuisance, Georgia law requires only that the actions of the defendant, or its agents, unreasonably interfered with the plaintiffs’ right to use and enjoy their properties. Plaintiffs need not demonstrate any physical damage to their property nor prove that their injuries and inconveniences are permanent. Id.
Trespass is the unlawful interference with one’s enjoyment of private property. O.C.G.A. 51-9-1; Black’s Law Dictionary, p. 1502 (6th ed. 1990). An action for trespass requires an unauthorized entry on another’s property, without the consent of the owner of the property on which the alleged trespass is committed. Webster v. Snapping Shoals Electric Membership Corp., 176 Ga.App. 265, 266 (1985). A property owner may maintain an action sounding in both nuisance and trespass for the contamination of his property by a foreign substance. Hoffman v. Atlanta Gas Light Company, 206 Ga.App. 727 (1992); Ledbetter Brothers, Inc. v. Holcomb, 108 Ga.App. 282 (1963) (holding that dust and vibrations from a nearby quarry resulting in injury to property will give rise to an actionable nuisance or trespass claim.) A trespass occurs when a defendant grades its property, thereby altering the natural contour of the land, and causing storm water to be deposited onto another’s property. Arvida/JMB Partners, L.P.-II v. Hadaway, supra.; Ponce de Leon Condominiums v. DiGirolamo, supra at 190; Saheen v. G & G Corp., 230 Ga. 646 (1973). Injunctive relief is appropriate to enjoin a continuing and abatable nuisance or trespass. DeKalb County v. McFarland, 231 Ga. 649 (1974); Lanier v. Ocean Pond Fishing Club, Inc., 253 Ga, 494 (1984); Bridges v. Henson, 216 Ga. 423 (1960); Kingsley Mill Corp. v Edmonds, 208 Ga. 374 (1951).
Under Georgia law, the essential elements of a negligence action are the existence of a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm, the breach of such standard, a legally attributable causal connection between the conduct and the resulting injury, and some loss or damage flowing to plaintiff’s legally protected interest as a result of an alleged breach of the legal duty. Galanti v. U.S. 709 F.2d 706, 708-709 (11th Cir.1983); Bradley Center v. Wessner, 250 Ga. 199, 200 (1982). Violations of county ordinances and state statutes constitute negligence per se. Horney v. Panter, 204 Ga.App. 474, 476 (1992); Decker v. Gibson Products Co., 679 F.2d 212, 214 (11th Cir. 1982); Central Anesthesia Assoc. P.C. v. Worthy, 173 Ga.App. 150, 152-153 (Ga.App. 1984). Therefore, a violation of the above-referenced statutes which do not provide for a private right of action would be grounds to support a negligence action.
HISTORIC PROTECTION AND PRESERVATION
Historic preservation laws seek to provide a balance between protection of historic resources and economic development. Federal historic preservation laws include the National Historic Preservation Act, Section 4(f) of the Department of Transportation Act, and the National Environmental Policy Act. At the state and local level are the Georgia Historic Preservation Act, Savannah’s historic preservation ordinance, and provisions in the Georgia Code relating to conservation easements and tax incentives for the protection of historic properties.
I. National Historic Preservation Act of 1966, 16 U.S.C. § § 470 et seq.
Section 106 of the National Historic Preservation Act requires federal agencies to consider the effects of their actions on historic resources and afford the Advisory Council on Historic Preservation an opportunity to comment on such actions. 16 U.S.C. § 470f; 36 C.F.R. § 800.1. The objective of the Section 106 process is to identify historic properties potentially effected by the undertaking, assess the effects, and seek ways to avoid, minimize or mitigate any adverse effects on historic properties. 36 C.F.R. § 800.1. This process must be initiated early in the planning so that a broad range of alternatives may be considered. Id.
Section 106 applies to resources that are on or eligible for the National Register of Historic Places. This includes all properties that meet the National Register criteria, even in the absence of a formal determination of eligibility. 36. C.F.R. § 800.616(l)(2). Historic properties can include buildings, structures, objects, sites, and districts. To be eligible for listing on the National Register, a resource must: a) be associated with an important historic context; and b) retain historic integrity of those features that convey its significance. See 36 C.F.R. § 60.4 and National Park Service National Register Bulletin, “How to Apply the National Register Criteria for Evaluation.” The National Register includes not only nationally significant resources, but also those resources having state or local significance.
Properties are added to the National Register by nomination from a federal agency or Georgia’s Historic Preservation Office (Department of Natural Resources, Historic Preservation District), with approval from the National Park Service. 36 C.F.R. § 60.1. Interested parties can fill out a National Register nomination form and request the Historic Preservation Officer to nominate the resource if the applicable criteria are satisfied. 36. C.F.R. § 60.12.
Section 106 applies to federal “undertakings,” including projects, activities, and programs funded by a federal agency; carried out by a federal agency; or requiring a federal permit, license or approval. 36. C.F.R. § 800.16(y). Once Section 106 is triggered, the federal agency undertaking the proposed project must consult with Georgia’s Historic Preservation Officer, and must provide certain entities with the opportunity to participate in the consultation process, including the Advisory Council, the local government, the public, and interested organizations. 36. C.F.R. § 800.2.
The agency must document the area of potential effects, which is defined as “the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties.” 36. C.F.R. §§ 800.4; 800.16(d). The agency must also take appropriate steps to identify historic properties within the area of potential effects. This includes consulting with the Historic Preservation Officer to determine whether properties within the area of potential effects meet the National Register criteria, even if the properties have not been previously evaluated for eligibility. 36. C.F.R. § 800.4.
“An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property’s eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed, or be cumulative.” 36. C.F.R. § 800.5.
If an adverse effect is found, the agency must document it and must consult further to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties. 36. C.F.R. §§ 800.5; 800.6; 800.11 (likewise, the agency must properly document determinations of no adverse effect). If the agency and Georgia’s Historic Preservation Officer agree on how to resolve the adverse effects, they must execute a memorandum of agreement prior to approving the undertaking. 36. C.F.R. § 800.6. If the agency and the Historic Preservation Officer cannot resolve the adverse effects, the Advisory Council may enter into a memorandum of agreement with the agency. Otherwise, the Advisory Council must submit comments to the agency, and the agency “shall take into account the Council’s comments in reaching a final decision on the undertaking.” 36. C.F.R. § 800.7. In the vast majority of cases, a memorandum of agreement is reached. These memorandums are legally binding. 36. C.F.R. § 800.6.
While Section 106 forces federal agencies to consider potential impacts on historic resources and to explore alternatives that would avoid or mitigate those impacts, it does not prevent the agencies from ultimately proceeding with actions that adversely effect those resources. Instead, as set forth above, Section 106 sets forth the procedures an agency must follow prior to issuing a permit or funding a project that affects historic resources.
II. National Environmental Policy Act of 1969, 42 U.S.C. § § 4321 et seq.
Like Section 106 of the National Historic Preservation Act, the National Environmental Policy Act (NEPA) requires federal agencies to follow certain procedures prior to taking actions that impact the environment, including historic resources. One of the objectives of NEPA is to “preserve important historic, cultural, and natural aspects of our national heritage.” 42 U.S.C. § 4331.
Pursuant to NEPA and its implementing regulations, all federal agencies must consider the need, impact, and alternatives for any federal action which may significantly affect the environment. 42 U.S.C. § 4321 § et seq.; 40 C.F.R. Part 1500. So long as there may be a major or significant impact from a proposed federal action, NEPA applies. Hill v. Boy, 144 F.3d 1446, 1449-1450 (11th Cir. 1998).
For actions which significantly affect the environment, the agency must prepare an Environmental Impact Statement, which is a detailed statement on the environmental impact of the proposed action, and alternatives to the action. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502. To determine whether an action will have a significant impact on the environment, the agency generally prepares an Environmental Assessment, which is a concise document that serves to determine whether to prepare an Environmental Impact Statement or a finding of no significant impact. 40 C.F.R. §§ 1508.9; 1501.4.
The NEPA process is typically coordinated with the Section 106 review process. See 36 C.F.R. 800.8. However, an “adverse effect” determination for purposes of Section 106 does not necessarily mean that an Environmental Impact Statement must be required (i.e., there may be an “adverse effect” on historic resources which is not considered a “significant impact”) Id.
III. Section 4(f) of the Department of Transportation Act, 49 U.S.C. § § 303 et seq.
Unlike Section 106 and NEPA, Section 4(f) of the Department of Transportation Act imposes substantive requirements which can force an agency not only to consider impacts and alternatives, but to actually implement those alternatives if they are feasible. Section 4(f) prohibits the Department of Transportation from funding or approving any project which requires the “use” of any public park, recreation area, wildlife refuge, or any land from a historic site of National, State, or local significance, unless: (1) there is no feasible and prudent alternative to the use of such land, and (2) such program or project includes all possible planning to minimize harm to the protected resource. 23 U.S.C. § 138; 49 U.S.C. § 303. The Department of Transportation’s regulations implementing Section 4(f) are set at 23 C.F.R. § 771.135.
With respect to historic properties, Section 4(f) is triggered when there is a substantial impairment of the historical integrity of a resource on or eligible for listing on the National Register of Historic Places. This substantial impairment can include a constructive use from indirect effects such as noise, air pollution, impairment of access, and visual or aesthetic impacts See Care v. Dole, 835 F.2d 803 (11th Cir. 1988); FHWA Section 4(f) Policy Paper.
IV. Georgia Historic Preservation Act, O.C.G.A. § 44-10-20 et. seq.
The Georgia Historic Preservation Act establishes uniform procedures for municipalities and counties which elect to enact historic preservation ordinances. O.C.G.A. § 44-10-20 et. seq. Each governing authority enacting a historic preservation ordinance in accordance with the Act must establish a historic preservation commission which is authorized to inventory historic properties; recommend “specific places, districts, sites, buildings, structures or works of art” to be designated by ordinance as historic; grant or deny certificates of appropriateness; preserve historic properties acquired by the municipality or county; promote the acquisition of conservation easements; and seek out state and federal funds for historic preservation. O.C.G.A. § 44-10-25.
Properties or districts designated by ordinance as historic must be so identified on the official zoning map (or other official map in the absence of a zoning map). O.C.G.A. § 44-10-26. After such designation, a certificate of appropriateness is required prior to making any material changes in the appearance of any designated property or any property within a designated district. O.C.G.A. §§ 44-10-26; 44-10-27. The commission shall approve a certificate of appropriateness if “the proposed material change in appearance would not have a substantial adverse effect on the esthetic, historical, or architectural significance and value of the historic property or the historic district.” O.C.G.A. § 44-10-28. A material change in appearance means “a change that will affect only the exterior architectural features of a historic property or of any structure, site, or work of art within a historic district.” O.C.G.A. § 44-10-22(9).
Work undertaken or funded by the Department of Transportation is exempt from the certificate of appropriateness requirements, and local governments are exempt if they provide notice to the commission and provide the commission with an opportunity to comment. O.C.G.A. § 44-10-27. Moreover, the Act does not apply to municipalities or counties which adopted historic preservation ordinances as of March 31, 1980.
V. Tax Incentives
Georgia encourages the protection and preservation of historic resources through tax incentives. Georgia’s Uniform Conservation Easement Act creates tax breaks in exchange for agreements to impose restrictions on alterations to historic properties. O.C.G.A. § 44-10-1 et seq. Georgia’s Ad Valorem Tax Code provides tax incentives for qualified historic resources, including rehabilitated properties and properties with outstanding historic value. O.C.G.A. §§ 48-5-2; 48-5-7; 48-4-7.2; and 48-5-7.3.
VII. Savannah’s Historic Preservation Ordinance, City of Savannah Zoning Regulations, § 8-3029
Savannah is one of the few local governments that enacted a historic preservation ordinance prior to March 31, 1980. See “Keeping Up With the Past: Historic Preservation in Georgia” by James Stokes, William Sapp, and Charles Conerly, Georgia Bar Journal, Vol. 3, No. 5. Savannah’s ordinance creates a historic district encompassing and adjacent to the area of the original city designed by General James Oglethorpe in 1733. Id. Within this historic district, property owners must obtain a certificate of appropriateness for designated activities. City of Savannah Zoning Regulations, Section 8-3029(f). This process is similar to Georgia’s Historic Preservation Act, but it regulates a broader range of activities. For example, it applies to the placement of signs. Id. The ordinance also sets forth design standards and visual compatibility factors to be considered in determining whether to issue a certificate of appropriateness. Section 8-3029(k)(6); 8-3029(l). Finally, the ordinance provides an appeal process and a procedure for obtaining variances from the Zoning Board of Appeals. Section 8-3029(n).
It would seem that we are already in the process of developing many alarming trends with regard to natural, cultural and historical resource destruction in the Coastal Region. Even allowing for our massive growth, we must somehow find viable methods to better promote protection and preservation of these resources.
In coastal Georgia, more than a dozen unresolved issues are specific to the Region. These include 1) the interplay of growth and natural, cultural and historic resources, 2) provision of surface water withdrawal, 3) the legal status of groundwater withdrawal permits, 4) the Savannah Harbor deepening project and resultant coastal dredging, 5) aquifer storage and recovery, 6) protection of the recharge areas for the Floridan aquifer on the coast, 7) saltwater intrusion into the aquifer, 8) marshland hammocks, 9) downstream impacts from upstream reservoir construction, 10) coordination or conflict between industrial and residential water provision and consumption, 11) coordination with adjoining states regarding respective water usage, and 12) establishment of a comprehensive water management program. These issues simply must be addressed, by any constructive means available, and soon.
No longer can we accept the longstanding concept of “two Georgias”, however you wish to define those areas…urban vs. rural, coastal vs. inland, southern vs. northern. As one example only, the State’s water supply issues are already fully integrated, if you will, with growth in Atlanta affecting supply for coastal Georgia, and visa versa. Statutes, regulations, and future policy must therefore also be integrated, as must public perceptions.
We must work to better educate the public about the need for natural, cultural and historic resource protection. Above all, we must all endeavor to begin viewing these resources as the severely overtaxed, finite resource that they are, instead of the infinite, endlessly abundant elements so easily squandered by so many Georgia residents. The keys then, to successful reform, are these:
Only with the wise use of all three can we expect to preserve the integrity of Georgia’s coasts, marshes, rivers and lakes, along with all her unique resources, for future generations, well into the 21st century.
1 Georgia Coastal Management Program, Department of Natural Resources
2 Georgia Center for a Sustainable Coast, member letter, May 24, 2002.
3 U.S. Census Bureau web site, http://www.census.gov/
4 Joni Mitchell, “Big Yellow Taxi”, 1970
5 “Georgia’s Water Crisis”, Jingle Davis, Atlanta Journal-Constitution, July 14, 2002
6 “Tapped Out”, Sabrina Manganelle Simmons, Connect Savannah, May 22, 2002
7 “Tapped Out”, Sabrina Manganelle Simmons, Connect Savannah, May 22, 2002
8 EPA’s National Watershed Assessment and Toxic Release Inventory
9 The Georgia Conservancy web site, http://www.georgiaconservancy.org/
10 “Dredging Up Trouble”, Jim Morekis, Creative Loafing, August 21, 1999
11 “Dredging Up Trouble”, Jim Morekis, Creative Loafing, August 21, 1999
12 “Savannah Harbor Update”, Judy Jennings, Georgia Sierran, May/June 2002
13 Southern Environmental Law Center web site, http://www.southernenvironment.org/
14 Southern Environmental Law Center web site, http://www.southernenvironment.org/
15 Source: “Georgia Water Law”, Robert S. Bomar, J.D.
16 “Water: It Surround Us, It Defines Us”, David Charles Donald, Savannah Morning News, June 8, 2002.
17 “Pushing Industry Off the Tap”, Ben Werner, Savannah Morning News, June 15, 2002
18 “Glynn Ok With Plans for Gas Plant”, Terry Dickson, Florida Times-Union, July 11, 2002
19 “Reservoirs Hurt Environment’s Natural Flow”, Mary Davis, Atlanta Journal-Constitution, June 21, 2002.
20 The Georgia Conservancy web site, http://www.georgiaconservancy.org/
21 Report of the Coastal Marsh Hammocks Advisory Council, March 2002
22 NOAA Coastal Services Center web site, http://www.csc.noaa.gov/