TITLE 12 CONSERVATION AND NATURAL RESOURCES

Section 5. Water Resources, 12-5-1 through 12-5-586.

ARTICLE 4 COASTAL WATERS, BEACHES, AND SAND DUNES

12-5-286. Permit required; application; notice; public hearing; issuance; denial; dynamic dune fields.

1. No person shall remove, fill, dredge, drain, or otherwise alter any marshlands or construct or locate any structure on or over marshlands in this state within the estuarine area thereof without first obtaining a permit from the committee or, in the case of minor alteration of marshlands, the commissioner. A permit may authorize the construction or maintenance of the project proposed in an application. After construction pursuant to a permit, a project may be maintained without an additional permit so long as it does not further alter the natural topography or vegetation at the project site and remains in serviceable condition.
2. No permit shall be required for any activity conducted pursuant to a letter of permission. At least 15 days prior to the commencement of any activity authorized pursuant to a letter of permission, the department shall provide public notice describing such activity and the location thereof; provided, however, that public notice shall not be required for any such activity that is necessary for public safety or the delivery of public services.
Each application for such permit shall be properly executed and filed with the department on forms prescribed by the department and shall include:
1. The name and address of the applicant;
2. A plan or drawing showing the applicant's proposal and the manner or method by which such proposal shall be accomplished.Such plan shall identify the coastal marshlands affected;
3. A plat of the area in which the proposed work will take place;
4. A copy of the deed or other instrument under which the applicant claims title to the property or, if the applicant is not the owner, then a copy of the deed or other instrument under which the owner claims title together with written permission from the owner to carry out the project on his land. In lieu of a deed or other instrument referred to in this paragraph, the committee may accept some other reasonable evidence of ownership of the property in question or other lawful authority to make use of the property.The committee will not adjudicate title disputes concerning the property which is the subject of the application; provided, however, that the committee may decline to process an application when submitted documents show conflicting deeds;
5. A list of all adjoining landowners together with such owners' addresses, provided that if the names or addresses of adjoining landowners cannot be determined, the applicant shall file in lieu thereof a sworn affidavit that a diligent search, including, without limitation, a search of the records of the county tax assessor's office, has been made but that the applicant was not able to ascertain the names or addresses, as the case may be, of adjoining landowners;
6. A letter from the local governing authority of the political subdivision in which the property is located, stating that the applicant's proposal is not violative of any zoning law;
7. A nonrefundable application fee to be set by the board in an amount necessary to defray the administrative cost of issuing such permit. Renewal fees shall be equal to application fees, which shall not exceed $1,000.00 for any one proposal and shall be paid to the department;
8. A description from the applicant of alternative sites and why they are not feasible and a discussion of why the permit should be granted;
9. A statement from the applicant that he has made inquiry to the appropriate authorities that the proposed project is not over a landfill or hazardous waste site and that the site is otherwise suitable for the proposed project;
10. A copy of the water quality certification issued by the department if required for the proposed project;
11. Certification by the applicant of adherence to soil and erosion control responsibilities if required for the proposed project; and
12. Such additional information as is required by the committee to properly evaluate the application.
A copy of each application for a permit shall be delivered to each member of the committee at least seven days prior to any meeting of the committee.
The department, after receipt of an application, shall notify in writing all adjoining landowners that the application has been received. Such notice shall indicate the use the applicant proposes to make of the property. Should the applicant indicate that any adjoining landowner is unknown or that the address of such landowner is unknown, then the department shall, after receipt of a completed application, cause a notice of the proposed activity and a brief description of the affected land to be published in the legal organ of or a newspaper of general circulation in the county or counties in which such land lies. Cost of such publication shall be paid by the applicant.Should the property to be affected by the applicant be bordered on any side or on more than one side by other property of the applicant, the applicant shall supply the names and addresses of the nearest landowners whose land borders on his land. If the names or addresses, or both, of the nearest landowners cannot be ascertained, the applicant shall supply a sworn statement of diligent search as provided in this Code section. The landowners named by the applicant shall be notified either directly or by advertisement as provided in this Code section. The department may also make inquiry to adjoining landowners to ascertain whether or not there is objection to issuance of a permit.
The committee shall provide notice of applications by either public notice distributed jointly with the United States Army Corps of Engineers or public notice distributed by the committee.In no instance shall a public notice be issued for less than seven days prior to the meeting at which the committee reviews the subject of the public notice.Public notices shall be distributed to all persons who have requested to be placed on the mailing list. Such request shall be made in writing and shall be renewed in December of each year. Failure to renew the request shall result in the removal of such name from the mailing list.
Whenever there appears to be sufficient public interest, the committee may call a public hearing.
In passing upon the application for permit, the committee shall consider the public interest, which, for purposes of this part, shall be deemed to be the following considerations:
1. Whether or not unreasonably harmful obstruction to or alteration of the natural flow of navigational water within the affected area will arise as a result of the proposal;
2. Whether or not unreasonably harmful or increased erosion, shoaling of channels, or stagnant areas of water will be created; and
3. Whether or not the granting of a permit and the completion of the applicant's proposal will unreasonably interfere with the conservation of fish, shrimp, oysters, crabs, clams, or other marine life, wildlife, or other resources, including but not limited to water and oxygen supply.
It is the responsibility of the applicant to demonstrate to the committee that the proposed alteration is not contrary to the public interest and that no feasible alternative sites exist. If the committee finds that the application is not contrary to the public interest and no feasible alternative sites exist, as specified in this subsection, it shall issue to the applicant a permit. Such permit may be conditioned upon the applicant's amending the proposal to take whatever measures are necessary to protect the public interest.
The committee shall act upon an application for a permit within 90 days after the application is complete; provided, however, that this provision may be waived upon the written request of the applicant.An application must be complete sufficiently in advance of the committee meeting at which the project will be considered to allow for public notice and evaluation by the department.An application is complete when it contains substantially all of the written information, documents, forms, fees, and materials required by this part.
In the event a majority of the members of the committee determine that a permit should be denied, the application for permit shall be denied. Any applicant who is aggrieved or adversely affected thereby shall have the right to appeal as provided in Code Section 12-5-283.
Should a majority of the members of the committee agree that a permit should be conditional, the permit shall be issued on such conditions as a majority of the committee directs. Any applicant who is aggrieved or adversely affected thereby shall have the right to appeal as provided in Code Section 12-5-283.
Every permit shall require that the proposed project be completed within five years after the date of the issuance of the permit and such permit shall expire five years after the date of issuance. Such time may be extended an additional five years upon showing that all due efforts and diligence toward the completion of the work have been made. Any permit may be revoked by the committee for noncompliance with or for violation of its terms after written notice of intention to do so has been furnished to the holder thereof.
A permit to alter marshlands that has been granted by the committee becomes final immediately upon issuance, but no construction or alteration may commence until the expiration of 30 days following the date of the committee meeting at which the application is approved; provided, however, that if a timely appeal is filed, no construction or alteration may commence until all administrative and judicial proceedings are terminated.
Issuance of a permit under this part and construction of the permitted project shall not remove the designated property from the jurisdiction of this part.All changes in permitted uses which increase impacts to any land subject to the provisions of this part must be assessed by the committee to determine if the proposed change is consistent with this part and the permit.Each permitted alteration of marshlands shall be reviewed by the department on a five-year basis, or when noncompliance with the purpose for which the permit was issued is evident, to determine if the use of the marshland is consistent with the intent of this part.If the permit holder is found not to be in compliance with this part, the committee shall take action as authorized under Code Section 12-5-291.
All plans, documents, and materials contained in any application for any permit required by this part shall be made a part of the permit, if granted, and conformance to such plans, documents, and materials shall be a condition of the permit.No change or deviation from any such plans, documents, or materials shall be permitted without the prior notification and approval of the committee.
The permittee shall notify the department of completion of a project within 30 days of completion.
If, prior to completion of review of an application under this part, the committee receives notice of the denial of a permit or authorization necessary for the project, review of the project shall be suspended and, if the denial becomes final, the application shall stand denied.
If an area has both marshlands as defined in Code Section 12-5-282 and dynamic dune fields as defined in Code Section 12-5-232, it shall be subject to the jurisdiction of both such parts.In the event of a conflict between this part and Part 2 of this article, the commissioner shall determine which part shall apply so as to best protect the public interest.

(Ga. L. 1970, p. 939, § 5; Code 1981, §12-5-285; Code 1981, §12-5-286, as redesignated by Ga. L. 1992, p. 2294, § 1; Ga. L. 2013, p. 874, § 6/HB 402.)

The 2013 amendment, effective July 1, 2013, designated the existing provisions of subsection (a) as paragraph (a)(1); in the third sentence of paragraph (a)(1), substituted "an additional permit" for "a permit", and added "and remains in serviceable condition" at the end; and added paragraph (a)(2).

Law reviews.

- For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012).

JUDICIAL DECISIONS

State requires that permit be obtained when improvements to boat repair and maintenance facilities involve filling lands between high and low watermarks which are owned by the state. Isle of Hope Historical Ass'n v. United States Army Corps of Eng'rs, 646 F.2d 215 (5th Cir. 1981).

Regulation of storm water runoff.

- Coastal Marshlands Protection Act, O.C.G.A. § 12-5-280 et seq., can be construed to regulate storm water runoff into the marshlands under the "otherwise alter" provision of O.C.G.A. § 12-5-286(a) only to the extent that the runoff alters the marshlands in a direct physical manner akin to removing, filling, dredging, or draining the marshlands; storm water runoff into the marshlands that does not alter the marshlands in this manner is not regulated under the "otherwise alter" provision, despite the fact that the runoff carries pollutants and may have an adverse impact on the marshlands. Coastal Marshlands Prot. Comm. v. Ctr. for a Sustainable Coast, 286 Ga. App. 518, 649 S.E.2d 619 (2007), aff'd, 284 Ga. 736, 670 S.E.2d 429 (2008).

Because there was no evidence that storm water runoff generated by a upland residential development "otherwise altered" marshlands in a direct physical manner akin to removing, filling, dredging, or draining under O.C.G.A. § 12-5-286(a), it was error to construe the Coastal Marshlands Protection Act to regulate the runoff from this area. Coastal Marshlands Prot. Comm. v. Ctr. for a Sustainable Coast, 286 Ga. App. 518, 649 S.E.2d 619 (2007), aff'd, 284 Ga. 736, 670 S.E.2d 429 (2008).

Lease on upland property.

- Having a lease on upland property can satisfy the ownership component of being an "eligible person" for a water bottom lease under O.C.G.A. § 12-5-287; the upland lease here, however, could not be construed as a written assignment of rights to the water bottom or as permission to apply for the water bottom lease under O.C.G.A. § 12-5-286(b)(4). DBL, Inc. v. Carson, 284 Ga. App. 898, 645 S.E.2d 56, cert. denied, 2007 Ga. LEXIS 566 (2007).

No authority regarding residential upland areas.

- Committee's authority to issue a permit under the Coastal Marshlands Protection Act, O.C.G.A. § 12-5-280 et seq., did not extend to residential upland areas of the development at issue because the use of the term "otherwise alter" in O.C.G.A. § 12-5-286(a) was not authority for such a determination and, although the developer was required to secure a permit because the developer intended to place structures in the marshlands, the permitting process was not triggered because of any other activity that could have been deemed to "otherwise alter" the marshlands. Ctr. for a Sustainable Coast v. Coastal Marshlands Prot. Comm., 284 Ga. 736, 670 S.E.2d 429 (2008).

Permit properly affirmed.

- Under an "any evidence" standard of review, an ALJ did not err in affirming portions of a permit issued by the Coastal Marshlands Protection Committee when the permit contained conditions to reduce erosion and use of best management practices to comply with the Erosion and Sedimentation Act of 1975 as a biological assessment and other conditions of the permit provided a sufficient basis for the finding that granting the permit and completing the proposed project would not unreasonably interfere with the conservation of gopher tortoises, indigo snakes, shorebirds, and wood storks; private docks were not part of the permitted project and were not regulated to the extent the docks complied with the provisions of O.C.G.A. § 12-5-295, and the developer had agreed to restrict the number and size of the private docks that could be built. Coastal Marshlands Prot. Comm. v. Ctr. for a Sustainable Coast, 286 Ga. App. 518, 649 S.E.2d 619 (2007), aff'd, 284 Ga. 736, 670 S.E.2d 429 (2008).

Permit improperly reversed.

- Trial court reviewing an administrative law judge's (ALJ) decision affirming the issuance of a permit to build a dock over marshlands, under the Coastal Marshlands Protection Act of 1970, O.C.G.A. § 12-5-280 et seq., by the Coastal Marshlands Protection Committee (Committee) erroneously reversed the decision because the court focused on the Committee's decision, instead of deciding whether the ALJ correctly affirmed the Committee's decision, since the ALJ conducted a de novo review of the Committee's decision at which new evidence could be received. Coastal Marshlands Prot. Comm. v. Altamaha Riverkeeper, Inc., 315 Ga. App. 510, 726 S.E.2d 539 (2012).

Marshlands encroachment removal order affirmed.

- Relevant marshlands boundary was where the boundary lay before the owner began the owner's second construction activity in March 2009, because the owner's 2008 excavation had created additional tide-influenced areas; because the second replacement bulkhead encroached on jurisdictional marshlands, the March 2016 removal order was affirmed. C&M Enters. of Ga., LLC v. Williams, 346 Ga. App. 79, 816 S.E.2d 44 (2018).

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