Marsh or Not, Jekyll's Future May Ride On It

Jekyll IslandAlthough the 65/35 law does not define “land,” Georgia’s Coastal Marshlands Protection Act of 1970 is quite specific in distinguishing between uplands and marshes. Under that law, marshes are neither “land” nor eligible for active use or development, except for strictly limited purposes.

Amid the ongoing update of the Jekyll Island master plan, debate has arisen over the intent of a 1971 law restricting development to no more than 35 percent of Jekyll Island’s land area above mean high tide (MHT). The controversy is not whether MHT should be used as the legal standard, but whether some 1,700 acres of Jekyll’s tidal marsh above MHT legally qualify as “land.”

 
A task force appointed by the Jekyll Island Authority (JIA) said “no.” But the JIA now says “yes,” and is seeking the attorney general’s support.
 
No one asserts that the JIA intends to build within the marsh. But many are concerned about the consequences — both on Jekyll and beyond — of an interpretation of the 65/35 law that would, in effect, make the island larger than its actual land area.
 
If Jekyll is artificially expanded by 1,700 acres, 35 percent of that sizable area, or nearly 600 additional acres, would become eligible for development. Those acres would be carved out of the 65 percent of upland now conserved for public recreational use.
 
Although the 65/35 law does not define “land,” Georgia’s Coastal Marshlands Protection Act of 1970 is quite specific in distinguishing between uplands and marshes. Under that law, marshes are neither “land” nor eligible for active use or development, except for strictly limited purposes.
 
Under other Georgia law, tidal marshes and other “waters of the state” must be protected by a natural upland buffer at least 25 feet wide to help reduce pollution from upland activities.
 
If all “areas” above MHT become part of Jekyll’s “land,” it is likely that the buffer could be shifted into the marsh, even though marsh is not land by legal definition. If that happened, buffer protection would be eliminated.
 
Similarly, incorrectly equating marsh with land could weaken the Marsh Act by providing legal grounds for developers along the coast to win comparable exemptions.
 
In light of such considerations, it is troubling that the JIA is insisting that tidal marsh be included in Jekyll’s calculated upland area used to set development limits.
 
The JIA rationalizes that prior master plans counted marsh as land. Those plans are deeply flawed on several counts, including failure to properly apply the 65/35 law, evoking the maxim that “there never was a mistake that got better by repeating.”
 
Georgia’s marshes are extremely important to the citizens of our state and vital to the quality of life on Georgia’s coast. Based on extensive scientific studies, Georgia’s vast tidal marsh generates an annual value of more than $6 billion in public benefits, including fish, shellfish, eco-tourism, water filtration and protection of property against storm damage.
 
To safeguard this important resource, it is essential that all legal controls are consistently interpreted and enforced.
 
Likewise, achieving responsible redevelopment of Jekyll Island depends on undeviating application of legally consistent, scientifically verified distinctions between upland and marshes.
Calling tidal marsh above mean high tide on Jekyll “land” does not make it so.
 
David Kyler is executive director of the Center for a Sustainable Coast in St. Simons Island.

Read more on the debate at this AJC link. - See more at: http://greenlaw.org/news-JekyllsFuture#sthash.t0PZHrTR.dpuf