SandBar 8:1, April, 2009

Georgia Supreme Court Rules Act Does Not Apply

Ctr. for a Sustainable Coast v. Coastal Marshlands Prot. Comm., 284 Ga. 736 (2008).

Terra Bowling, J.D.

The Georgia Supreme Court has ruled that the state’s Coastal Marshlands Protection Act does not extend to residential structures built upland from coastal marshes. The ruling will allow development to continue on one of the state’s largest private marina projects.

Background
The Coastal Marshlands Protection Act (CMPA) regulates activities in Georgia’s coastal marshlands. The Act charges the Coastal Marshlands Protection Committee with granting permits for projects in the marshlands. The CMPA specifies, “[n]o person shall remove, fill, dredge, drain, or otherwise alter any marsh­ lands or construct or locate any struc­ ture on or over marshlands in this state within the estuarine area there­ of without first obtaining a permit from the committee . . . ”1
      In 2005, Point Peter LLC, a residential developer, sought a permit un­ der the CMPA for the construction of three community day docks and two full-service marinas, as part of a residential development spanning over 1,000 acres. After stipulating certain conditions to reduce adverse impacts to the marshlands, the Committee approved the permit.
      The Center for a Sustainable Coast and other environmental organizations (CSC) challenged the permit. CSC argued that stormwater runoff from the residential development would “otherwise alter” the marshlands, and, therefore, the Committee should have considered the potential harm to the coastal marshlands caused by the upland portion of the development rather than looking solely at the development in the marsh. An administrative law judge agreed and remanded the permit to the Committee. The Committee and the developer challenged the remand.
      The Georgia Court of Appeals found that the permitting power of the Committee did not extend to regulating the residential upland portions of the development. The appellate court found that the term “‘otherwise alter’ . . . refers to activities of the same kind or class as ‘remove, fill, dredge, [or] drain’” and only activities within that class required a CMPA permit. The court concluded that stormwater runoff from upland development did not require a permit. “‘[O]therwise alter’ applies ‘only to the extent that the runoff alters the marshlands in a direct physical manner akin to removing, refilling, dredging, or draining the marshlands.”2 CSC appealed.
      The Georgia Supreme Court granted certioriari. The court considered “whether the CMPA authorizes the Coastal Marshlands Protection Committee to regulate activities in upland areas that adversely impact marshlands in connection with its consideration of applications for permits to build on the marshlands.”3

Otherwise Alter
The court first looked at the ALJ and the appellate court’s interpretation of the term “otherwise alter” in the CMPA. The court agreed with the appellate court’s interpretation of the term.
      To interpret the term, the court of appeals used the statutory canon of construction “ejusdem generic.” Under the canon, “when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being [of the same kind or class] with the things specifically named, unless, of course, that a wider sense was intended.”4 In this instance, the supreme court agreed that “‘otherwise alter’ applies only to the extent that the runoff alters the marshlands in a direct physical manner akin to removing, refilling, dredging, or draining the marshlands.”5
      CSC argued that the canon should only be applied when a statute is ambiguous, and, in this instance, the statute was unambiguous. The supreme court agreed that the statute was unambiguous, but noted that ambiguity would arise if “otherwise alter” applied to stormwater runoff from upland development.
     If the term applied to stormwater runoff “it would require that any project, even an upland project located miles from the marshlands, would have to undergo the permitting process if it could be shown that storm water runoff from the project would affect the marshlands.”6 The court reasoned that this would create ambiguity when read with the CMPA’s directive stating that “if the project is not water related or dependent on waterfront access or can be satisfied by the use of an alternative nonmarshland site or by use of existing public facilities, a permit usually should not be granted . . . ”7 Essentially, the CSC’s interpretation of the term would require the Committee to regulate activities from upland activity, while the CMPA prohibited the Committee from granting permits for non-water related activities. The court reasoned that this “ambiguity” justified the use of the ejusdem generic canon.
      The court further reasoned that the appellate court’s interpretation of “otherwise alter” comported with the reading of the CMPA as a whole. “Requiring that all potential actors secure a permit from the Committee before engaging in such activities is a grant of authority and responsibility to the Committee so immense that it simply cannot be squared with the General Assembly’s intent.”8
      CSC also argued that if a development requires a permit, the scope of the Committee’s review extends to all facets of that development. The court found that the Com­ mittee’s responsibilities were clearly limited to considering activities involving piers, docks, and other marine developments, but not upland residential developments. The court concluded that the role of the Committee’s regulation power “is intended to be limited to the CMPA’s stated scope, the marshlands themselves.”9

Conclusion
In a 5-2 decision, the Georgia Supreme Court affirmed the appellate court’s decision. The dissent argued that the trial court prematurely intervened in the ongoing administrative process. 

Endnotes
1.  Ga. Code Ann. A7 12-5-286(a) (2008).
2. Ctr. for a Sustainable Coast v. Coastal Marshlands Prot. Comm., 284 Ga. 736, 739 (2008).
3.  Id. at 736.
4.  Id at 737-738.
5.  Id at 739.
6.  Id. at 738.
7.  Id. at 738-739.
8.  Id. at 739.
9.  Id. at 743.