SAVANNAH - A legal fight over whether the law protecting Georgia marshlands can extend to residential developments on dry land is headed to the state Supreme Court, which could set a precedent imposing tougher standards on construction near salt marshes along Georgia's 100-mile coast.
The court will hear arguments today in a dispute between environmentalists and the developer of Cumberland Harbour, a 1,014-acre gated subdivision built on a peninsula surrounded by marsh in Camden County near the Georgia-Florida border.
The developer, the Land Resource Cos., was granted a state permit in 2005 to build two marinas and three community docks at Cumberland Harbour. They would make up the largest marina complex in Georgia with more than 17,500 linear feet of floating docks.
Opponents have tied up the project in court ever since, arguing state regulators granted the marina permit without considering potential harm to the marsh from polluting stormwater runoff from the entire development - including homes built on the peninsula's uplands.
It will be the first time the state Supreme Court has considered whether development on land, rather than in the marsh itself, is covered by safeguards in the Coastal Marshlands Protection Act. The regulatory committee that issues permits says it lacks that authority under the law.
"It's a big deal because there's been a wholesale failure of government to protect the marsh other than to keep it from being filled in," said Gordon Rogers, the Satilla riverkeeper and one of the plaintiffs in the case. "The act is broader than how they're using it."
The 1970 state law was passed to protect Georgia's 378,000 acres of marshland, about a third of the total on the East Coast, from destruction. Salt marshes serve as wildlife habitat, help shield coastlines against flooding and erosion, and feed marine animals miles offshore with their decaying grasses.
The law requires a regulatory permit for any development "on or over marshlands." Attorneys for Land Resource, as well as Georgia's attorney general, say the only upland construction the law has been applied to are portions of marinas such as fuel tanks, storage buildings and parking lots.
"We are confident in the correctness of our legal argument that (the law) was not intended to and does not regulate the uplands residential development at Cumberland Harbour," said Patricia Barmeyer, an attorney for the developer.
One of the law's authors, former state Rep. Reid W. Harris of St. Simons Island, also insists it would be a stretch to apply the marshlands act to homes on dry land.
Harris, a retired lawyer, filed a brief with the Supreme Court saying the law wouldn't have passed had legislators feared it would restrict private property rights.
Stephen O'Day, an attorney working on the case with the Southern Environmental Law Center, argues the marinas are an integral piece of the overall Cumberland Harbour subdivision.
O'Day points to ponds on the property designed to collect stormwater runoff from all parts of the development - including the marinas. The ponds then filter out pollutants before piping the water back onto land.
Some of that stormwater, O'Day says, will flow into the marsh. But how much comes from the marinas?
"You can't separate out the stormwater discharge from the marina and other stormwater discharge from the project," O'Day said. "It's all one stormwater system."
He also notes the Marshlands Protection Act gives state regulators power over any activity that would drain, fill in "or otherwise alter" Georgia marshlands.
Because stormwater runoff can upset the delicate salinity balance of salt marshes, O'Day says, it should be considered an alteration.
Other Georgia developers and coastal landowners are watching the case.
The Sea Island Co., the Georgia-based owner and developer of coastal luxury resorts, says applying the marshlands act to upland development would be "grossly onerous and unfair" to property owners.
"The impact of this would be staggering," a Sea Island attorney wrote in a brief filed with the Supreme Court, saying the state would become "regulators of land-disturbing activities on hundreds of thousands if not millions of acres in Georgia's coastal region."
The Cumberland Harbour marina proposals stirred controversy not just because of their size, but also because of their location.
The marinas would launch hundreds of pleasure boats in waters within two miles of federally protected Cumberland Island. Endangered right whales migrate to those waters every winter to birth their calves. Researchers believe only 300 to 350 of the rare whales still exist, and collisions with ships and boats are their No. 1 killer.
An administrative law judge in 2006 sent the Cumberland Harbour marina permit back to state regulators, saying they hadn't properly assessed the threat to right whales and other protected species such as manatees and sea turtles. The judge also ruled regulators had to consider the impact of the "entire project" on the marsh, including upland homes.
Last year, the Georgia Court of Appeals unanimously reversed the lower court on the residential construction issue, saying that interpretation was too broad. One of the judges urged legislators to expand the scope of the law.
The Supreme Court's ruling won't be the final word on whether Cumberland Harbour can build its marinas. Regardless of the outcome, regulators will still have to settle issues related to protected species from the 2006 judicial ruling.