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

12-5-295. Applicability of part.

This part shall not apply to the following:

Activities of the Department of Transportation incident to constructing, repairing, and maintaining a public road system in Georgia;
Activities of the Department of Transportation and political subdivisions in maintaining existing drainage systems and ditches as long as such activities do not impact additional marshlands;
Agencies of the United States charged by law with the responsibility of keeping the rivers and harbors of this state open for navigation, and agencies of this state charged by existing law with the responsibility of keeping the rivers and harbors of this state open for navigation including areas for utilization for spoilage designated by such agencies;
Activities of public utility companies regulated by the Public Service Commission, electric membership corporations, public authorities operating electric systems, or municipal electric systems incident to constructing, erecting, repairing, and maintaining utility lines for the transmission of gas, electricity, or telephone messages;
Activities of companies regulated by the Public Service Commission incident to constructing, erecting, repairing, and maintaining railroad lines and bridges;
Activities of political subdivisions incident to constructing, repairing, and maintaining pipelines that have been approved by the department or appropriate authority for the transport of drinking water and sewage;
The building of a private dock exclusively for the noncommercial use of the owner or his or her invitees and constructed on pilings, the walkways of which are above the marsh grass not obstructing tidal flow, by:
1. The owner of a lot on which a detached single-family residence is located on high land adjoining such dock; or
2. The owner of a lot having at least 50 front feet of land abutting the marshlands which contains high land suitable for the construction of a detached single-family residence and where the construction of such a residence is not prohibited.
  The lot owner shall and is authorized to maintain the structure in good condition and repair the same as necessary, and the use of repair or replacement materials comparable in quality to the original authorized materials shall be sufficient for such purposes;
(7.1) The building of a single private dock by the owners of up to four adjoining lots, each of which is riparian and would qualify for an exemption as provided in paragraph (7) of this Code section, for the exclusive noncommercial use of such owners or their invitees and constructed as a single walkway on pilings above the marsh grass not obstructing tidal flow and in a size to be determined by the department taking into consideration the number of adjoining lots utilizing the dock; provided, however, that the exemption provided by this paragraph shall apply only if each of the owners of such adjoining lots has entered into a binding covenant that runs with the land, in favor of the state, which covenant prohibits the building of any future private dock on his or her lot unless the dock exempted pursuant to this paragraph is removed or converted to a single-family private dock which would qualify for an exemption as provided in paragraph (7) of this Code section. The granting of the exemption provided by this paragraph shall be the state's consideration for the covenant of each such lot owner. The lot owners shall and are authorized to maintain the structure in good condition and repair the same as necessary, and the use of repair or replacement materials comparable in quality to the original authorized materials shall be sufficient for such purposes; or
The reclamation of manmade boat slips as a part of any publicly funded construction project and ancillary development projects including, without limitation, hotels, restaurants, retail facilities, and recreational facilities, whether public or private, within any industrial areas continued in existence pursuant to Article XI, Section I, Paragraph IV, subparagraph (d) of the Constitution which are wholly contained on an island.

(Ga. L. 1970, p. 939, § 11; Code 1981, §12-5-292; Ga. L. 1989, p. 574, § 4; Code 1981, §12-5-295, as redesignated by Ga. L. 1992, p. 2294, § 1; Ga. L. 1995, p. 462, § 2; Ga. L. 2003, p. 316, § 1; Ga. L. 2008, p. 117, § 1/HB 68; Ga. L. 2009, p. 778, § 2/HB 170.)

Law reviews.

- For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010).

JUDICIAL DECISIONS

Private dock not subject to Coastal Marshlands Protection Act.

- Landowners' claims against the state for declaratory judgment, mandamus, an unconstitutional taking, and due process and equal protection violations, all arising out of the issuance of a license to the landowners' neighbors to build a private dock in a coastal marshland area, all failed. The Coastal Marshlands Protection Act, O.C.G.A. § 12-5-280 et seq., did not apply to a private dock, pursuant to O.C.G.A. § 12-5-295(7); therefore, the landowners were not entitled to a hearing under the Act pursuant to O.C.G.A. § 12-5-283(b) and the Administrative Procedure Act, O.C.G.A. §§ 50-13-13(a) and50-13-2(2). Hitch v. Vasarhelyi, 302 Ga. App. 381, 691 S.E.2d 286 (2010).

Corps of Engineers may not follow planning documents not adopted by county.

- The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., contemplates a relationship of cooperation between local and federal authorities with the central aspect of such relationship being the respect for the sovereignty of local authorities. Thus, the United States Army Corps of Engineers, a federal agency, was never intended by that Act to have the power or responsibility of a planning and zoning review board, and could not follow planning documents which the local county had not adopted, nor engage in independent analysis of inconsistencies which those specifically charged with zoning enforcement did not find. Isle of Hope Historical Ass'n v. United States Army Corps of Eng'rs, 646 F.2d 215 (5th Cir. 1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 64 Am. Jur. 2d, Public Utilities, §§ 1, 2. 78 Am. Jur. 2d, Waters, §§ 136, 138.

C.J.S.

- 15 C.J.S., Commerce, § 19. 73 C.J.S., Public Utilities, § 1.

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