07 LC
25 4794
House
Bill 500
By:
Representatives Geisinger of the
48th,
Thomas of the
100th,
Wilkinson of the
52nd,
Millar of the
79th,
Willard of the
49th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 12 of the Official Code of Georgia Annotated, relating to
conservation and natural resources, so as to change certain provision relating
to legislative findings and declarations relative to the Coastal Marshlands
Protection Act of 1970; to change certain provisions relating to definitions
relative to the Coastal Marshlands Protection Act of 1970; to change certain
provisions relating to the Coastal Marshlands Protection Committee and its
creation, members, powers, per diem and expenses, administrative hearings and
review, and permits for minor alterations; to change certain provisions relating
to permit required, application, notice, public hearing, issuance, denial, and
dynamic dune fields; to change certain provisions relating to leasing of state
owned marshlands or water bottoms; to change certain provisions relating to
restriction on granting of permits, size restriction, and activities and
structures considered contrary to public interest; to change certain provisions
relating to inspection of marshlands; to change certain provisions relating to
enforcement of the Coastal Marshlands Protection Act of 1970; to change certain
provisions relating to applicability of the Coastal Marshlands Protection Act of
1970; to change certain provisions relating to liability for damages; to provide
for inapplicability of Chapter 7 of said title to projects that are subject to
the Coastal Marshlands Protection Act of 1970; to provide an effective date; to
provide for applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
12 of the Official Code of Georgia Annotated, relating to conservation and
natural resources, is amended by revising Code Section 12-5-281, relating to
legislative findings and declarations relative to the Coastal Marshlands
Protection Act of 1970, as follows:
"12-5-281.
The
General Assembly finds and declares that the coastal marshlands of Georgia
comprise a vital natural resource system. It is recognized that
the
estuarine area of Georgia is
these
marshlands are the habitat of many species
of marine life and wildlife and, without the food supplied by the marshlands,
such marine life and wildlife cannot survive. The General Assembly further
finds that intensive marine research has revealed that the
estuarine
marshlands of coastal Georgia are among the richest providers of nutrients in
the world. Such marshlands provide a nursery for commercially and
recreationally important species of shellfish and other wildlife, provide a
great buffer against flooding and erosion, and help control and disseminate
pollutants. Also, it is found that the coastal marshlands provide a natural
recreation resource which has become vitally linked to the economy of
Georgia´s coastal zone and to that of the entire state. The General
Assembly further finds that this coastal marshlands resource system is costly,
if not impossible, to reconstruct or rehabilitate once adversely affected by man
related activities and is important to conserve for the present and future use
and enjoyment of all citizens and visitors to this state. The General Assembly
further finds that the coastal marshlands are a vital area of
the
this
state and are essential to maintain the health, safety, and welfare of all the
citizens of
the
this
state. Therefore, the General Assembly declares that the management of the
coastal marshlands has more than local significance, is of equal importance to
all citizens of
the
this
state, is of state-wide concern, and consequently is properly a matter for
regulation under the police power of the state. The General Assembly further
finds and declares that activities and structures in the coastal marshlands must
be regulated to ensure that the values and functions of the coastal marshlands
are not impaired and to fulfill the responsibilities of each generation as
public trustees of the coastal marshlands for succeeding
generations."
SECTION
2.
Said
title is further amended by revising Code Section 12-5-282, relating to
definitions relative to the Coastal Marshlands Protection Act of 1970, as
follows:
"12-5-282.
As
used in this part, the term:
(1)
'Applicant' means any person who files an application under this
part.
(2)
'Board' means the Board of Natural Resources.
(3)
'Coastal marshlands' or 'marshlands' means
any
marshland
all tidally
influenced waters, marshes, and marshlands lying within a tide-elevation range
from 5.6 feet above mean tide level and below; such may be indicated by, among
other things, the presence of marshlands vegetation. This area includes
any intertidal area, mud flat, tidal water
bottom, or salt marsh in the State of Georgia
within the
estuarine area of the state, whether or
not the tidewaters reach the littoral areas through natural or artificial
watercourses.
'Vegetated
marshlands' shall include those areas upon which grow one, but not necessarily
all, of the following: salt marsh grass (Spartina alterniflora), black
needlerush (Juncus roemerianus), saltmeadow cordgrass (Spartina patens), big
cordgrass (Spartina cynosuroides), saltgrass (Distichlis spicata), coast
dropseed (Sporobolus virginicus), bigelow glasswort (Salicornia bigelovii),
woody glasswort (Salicornia virginica), saltwort (Batis maritima), sea lavender
(Limonium nashii), sea oxeye (Borrichia frutescens), silverling (Baccharis
halimifolia), false willow (Baccharis angustifolia), and high-tide bush (Iva
frutescens). The occurrence and extent of
salt marsh peat at the undisturbed surface shall be deemed to be conclusive
evidence of the extent of a
salt
marsh
marshland
or a part thereof.
(4)
'Commissioner' means the commissioner of natural resources.
(4.1)
'Coastal marshlands area' or 'marshlands area' means coastal marshlands and a
buffer extending from the edge of such marshlands landward for a distance of 50
feet but excluding from such buffer any area subject to Part 2 of this article,
the 'Shore Protection Act.'
(5)
'Committee' means the Coastal Marshlands Protection Committee created by this
part.
(6)
'Eligible person' means any person who is the owner of high land adjoining the
state owned
marshland
marshlands
or water bottoms, or combination thereof, sought to be leased by said person
such that at least 100 percent of the landward boundary of the state owned
marshland
marshlands
or water
bottom
bottoms,
or combination thereof, sought to be leased is bordered by said adjoining high
land.
(7)
'Estuarine
area' means all tidally influenced waters, marshes, and marshlands lying within
a tide-elevation range from 5.6 feet above mean tide level and
below
Reserved.
(8)
'Live-aboard' means a floating vessel or other water craft which is moored to a
dock, tree, or piling or anchored in the estuarine waters of the state and is
utilized as a human or animal abode. Live-aboards include but are not limited
to monohulls, multihulls, houseboats, floating homes, and other floating
structures which are used for human or animal habitation.
(8.1)
'Marshlands vegetation' means salt marsh grass (Spartina alterniflora), black
needlerush (Juncus roemerianus), saltmeadow cordgrass (Spartina patens), big
cordgrass (Spartina cynosuroides), saltgrass (Distichlis spicata), coast
dropseed (Sporobolus virginicus), bigelow glasswort (Salicornia bigelovii),
woody glasswort (Salicornia virginica), saltwort (Batis maritima), sea lavender
(Limonium nashii), sea oxeye (Borrichia frutescens), silverling (Baccharis
halimifolia), false willow (Baccharis angustifolia), or high-tide bush (Iva
frutescens).
(9)
'Minor alteration' means any change in the marshlands
or marshlands
area which, taken singularly or in
combination with other changes, involve less than 0.10
acres
acre.
Minor alteration also includes renewal of permits previously issued by the
committee.
(10)
'Person' means any individual, partnership, corporation, municipal corporation,
county, association, or public or private
authority,
and shall include the State of Georgia, its political subdivisions, and all its
departments, boards, bureaus, commissions, or other agencies, unless
specifically exempted by this part.
(11)
'Political subdivision' means the governing authority of a county or a
municipality in which the marshlands to be affected or any part thereof are
located.
(12)
'Private dock' means a structure built onto or over the marsh and submerged
lands which is used for recreational fishing and other recreational activities,
is not available to the public, does not have enclosures, and does not create a
navigation hazard; provided, however, that a private dock may be covered and
screened with wainscotting not higher than three feet and may be equipped with a
hoist."
SECTION
3.
Said
title is further amended by revising subsection (d) of Code Section 12-5-283,
relating to the Coastal Marshlands Protection Committee and its creation,
members, powers, per diem and expenses, administrative hearings and review, and
permits for minor alterations, as follows:
"(d)
Any permit for minor alteration of the marshlands
area
may be issued by the commissioner based on the recommendations of staff, past
committee actions, and the results of public comments. The commissioner may
refer the application to the committee to decide on permits for minor
alterations that, in his judgment, should receive broader consideration. A
committee member may choose to have the full committee decide on permit
applications for minor alterations that the member feels should receive broader
consideration."
SECTION
4.
Said
title is further amended by revising Code Section 12-5-286, relating to permit
required, application, notice, public hearing, issuance, denial, and dynamic
dune fields, as follows:
"12-5-286.
(a)
No person shall remove, fill, dredge, drain, or otherwise alter any marshlands
areas
or construct or locate any structure on or over
any
marshlands
areas
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
areas,
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 a permit so long as it does not further alter
the natural topography or vegetation at the project site.
Any project
lawfully constructed prior to the effective date of this subsection may be
maintained without a permit so long as it does not further alter the marshlands
area.
(b)
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
area
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
or
her 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
or
she 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.
(c)
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.
(d)
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.
(e)
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.
(f)
Whenever there appears to be sufficient public interest, the committee may call
a public hearing.
(g)
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.
(h)
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.
(i)
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
shall
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.
(j)
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.
(k)
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.
(l)
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.
(m)
A permit to alter
the
marshlands
area
that has been granted by the committee
becomes
shall
become final immediately upon issuance,
but
no
construction or alteration
may
shall
not 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
shall
not commence until all administrative and
judicial proceedings are terminated.
(n)
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
shall
be assessed by the committee to determine if the proposed change is consistent
with this part and the permit. Each permitted alteration of
the
marshlands
area
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
marshlands
area 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.
(o)
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.
(p)
The permittee shall notify the department of completion of a project within 30
days of completion.
(q)
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.
(r)
If an
area
a
site has both marshlands
areas
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."
SECTION
5.
Said
title is further amended by revising Code Section 12-5-287, relating to leasing
of state owned marshland or water bottoms, as follows:
"12-5-287.
(a)
The committee, acting for and on behalf of and in the name of the state, is
further authorized and empowered to grant and convey to any eligible person a
lease of state owned
marshland
marshlands
or water bottoms, or a combination thereof, upon such terms and conditions as
the committee deems advisable for the purpose of constructing, operating, and
maintaining thereupon a marina or marinas or dock providing more than 500 linear
feet of dock space, including the installing, maintaining, repairing, removing,
and replacing of buildings, structures, piers, docks, floating docks, marine
railways, dolphins, pilings, appurtenances thereto, and all facilities and
improvements that shall be reasonably used for or in connection therewith,
subject always to the initial and continuing compliance by the lessee with all
applicable laws pertaining to the use of the leased property and subject always
to the use and enjoyment of the public of any navigable waters upon or over the
leased property. The applicant for any such lease shall inform the committee of
the total linear footage of dock space proposed, but the final decision as to
the total dock space available to moor boats shall be in the sound discretion of
the committee.
(b)
Upon application by any interested person for a lease pursuant to this Code
section, the committee shall determine whether or not the applicant is an
eligible person. The committee must also determine whether or not the applicant
has sufficient lands properly to service the area to be leased. If the
committee determines that the applicant is an eligible person and that
sufficient lands exist to service the marina or dock, then the committee is
authorized to grant and convey to the applicant a lease of the state owned
marshland
marshlands
or water bottoms, or a combination thereof, described in the application without
the necessity of public bid.
(c)
The application for the lease shall be in writing and shall contain a request
for a lease of the state owned property described therein. Such application
shall include all of the information required for a permit under this part. The
entire application
must
shall
be in a form acceptable to the committee.
(d)
Each lease granted under this Code section shall be upon such provisions,
requirements, and conditions as the committee shall make and shall, except as
provided in subsections (g) and (h) of this Code section, provide for a primary
term of not more than ten years. Each lease, except as provided in subsections
(g) and (h) of this Code section, shall require the payment of an annual rental
fee set by the committee which shall be not less than the fair market rental
value of the state owned
marshland
marshlands
or water bottoms leased thereby and may provide for two renewal terms, each of
which shall not be for a term of more than equal duration to the primary term.
Rental fees shall be paid in one installment to the department not later than
July 15 of each year. A penalty of 10 percent of the annual rental shall be
assessed for late payment. Failure to pay rental by August 1 of the year due
shall result in the cancellation of the lease.
(e)
Each lease granted under this Code section shall protect the interest of owners
of
marshland
marshlands
and high land adjoining the high land of the lessee upon which the lessee´s
eligibility for lease was based to a right of access to the state owned
marshland
marshlands
or water bottoms adjoining the state owned
marshland
marshlands
or water bottoms leased to the applicant; provided, however, said owners of
adjoining high land may assign their rights in writing in favor of the applicant
and such written assignment may be used to determine the percentage of landward
boundary required for eligibility to lease the state owned
marshland
marshlands
and water bottoms described in the application.
(f)
If the eligible person desires the ability to transfer or convey ownership
interests in the leasehold to individuals purchasing or leasing on a long-term
basis the slips of the marina or marinas, each lease granted under this Code
section shall require the formation of a condominium pursuant to Code Section
44-3-72.
(g)
Upon application of any eligible person who either is the owner of a marina in
existence on March 1, 1989, or holds a permit subsequently granted by the
committee under this part on an application for a permit filed with the
committee prior to March 1, 1989, the committee shall grant to that eligible
person a lease of the state owned
marshland
marshlands
or water bottoms upon which such marina is actually located for a term of 20
years beginning March 1, 1989, with a nominal rental of $1.00 per year;
provided, however, that any extensions of the dock space or expansion of the
area of state owned
marshland
marshlands
or water bottoms actually used in conjunction with the marina shall be subject
to the provisions of subsection (d) of this Code section; and provided, further,
that any such application made on or after January 1, 1999, shall be subject to
the provisions of subsection (d) of this Code section.
(h)
Upon application of any eligible person who is either a nonprofit corporation, a
nonprofit organization, or a public entity, the committee may grant a lease of
state owned
marshland
marshlands
or water bottoms for the construction and operation of a marina as a community
or public dock. Each lease granted under this subsection shall be for a term of
ten years from the date of its execution with a nominal rental of $1.00 for the
entire term.
(i)
The department shall make an annual report of its activities each calendar year
to the General Assembly. The report shall include a summary of all applications
received and leases granted, including length of terms, rentals, and locations.
Copies of the annual report shall be provided to the director of the State
Properties Commission, the chairperson of the House
Committee
on Natural Resources and Environment
Committee,
the chairperson of the House Committee on State Institutions and Property, the
chairperson of the Senate Natural Resources and the Environment Committee, and
the chairperson of the Senate
Committee
on State and Local Governmental Operations
Committee.
The department shall not be required to distribute copies of the annual report
to the members of the General Assembly but shall notify the members of the
availability of the annual report in the manner which it deems to be most
effective and efficient.
(j)
The committee may place such terms, limitations, restrictions, and conditions in
such leases as are deemed necessary to ensure that the utilization of the
property is in the public interest. Leased areas shall be deemed to be areas
where resources are managed by the state and lessee for the protection of
wildlife and other natural resources.
(k)
The committee may designate staff of the department to act on its behalf to
evaluate, enforce, and execute leases issued under this part.
(l)
A lease granted under this part shall be issued only to applicants who agree not
to discriminate against any person on the basis of race, gender, color, national
origin, religion, or disability. Discrimination by lessee may be punished by
termination of the lease, by injunction, or by any other legal remedy available
to the committee."
SECTION
6.
Said
title is further amended by revising Code Section 12-5-288, relating to
restriction on granting of permits, size restriction, and activities and
structures considered contrary to public interest, as follows:
"12-5-288.
(a)
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 pursuant to Code
Section 12-5-286.
(b)
The amount of
the
marshlands
area
to be altered must be minimum in size. The following activities and structures
are normally considered to be contrary to the public interest when located in
the
coastal marshlands
area
but the final decision as to whether any activity or structure is considered to
be in the public interest shall be in the sound discretion of the
committee:
(1)
Filling of
marshlands
Any removal,
filling, dredging, or draining or other
alteration for residential, commercial,
and industrial uses;
(2)
Filling of
marshlands
Any removal,
filling, dredging, or draining or other
alteration for private parking lots and
private roadways;
(3)
Construction of dump sites and depositing of any waste materials or dredge
spoil;
(4)
Dredging of canals or ditches for the purpose of draining coastal marshlands
areas;
(5)
Mining;
(6)
Construction of lagoons or impoundments for waste treatment, cooling,
agriculture, or aquaculture which would occupy or damage coastal marshlands or
life forms therein;
(7)
Construction of structures which constitute an obstruction of view to adjoining
riparian landowners, including signs and enclosures; and
(8)
Occupying a live-aboard for more than 30 days during any calendar year;
provided, however, that the commissioner may grant extensions of time beyond 30
days to persons making a request in writing stating the reasons for such
extension. Owners of docks where live-aboards are moored as well as owners and
occupants of live-aboards
are
shall
be responsible under this
part."
SECTION
7.
Said
title is further amended by revising Code Section 12-5-289, relating to
inspection of marshlands, as follows:
"12-5-289.
The
department, through its officers, staff, and conservation rangers, shall, in
addition to its other duties prescribed by law, make reasonable inspections of
the marshlands
area
to ascertain whether the requirements of this part and the rules, regulations,
and permits promulgated or issued under this part are being faithfully complied
with."
SECTION
8.
Said
title is further amended by revising Code Section 12-5-291, relating to
enforcement of the Coastal Marshlands Protection Act of 1970, as
follows:
"12-5-291.
(a)
In order to enforce this part or any orders issued under this part or any rules
and regulations promulgated under this part, any one or any combination of any
or all of the following methods may be employed:
(1)
Whenever any person not exempted from this part by Code Section 12-5-295 is
altering the marshlands
area
without a permit, altering the marshlands
area
in violation of the terms and conditions of a permit, or violating this part in
any other manner, the committee may, prior to any hearing, issue a cease and
desist order or other appropriate order to such person; provided, however, that
the issuance of such order shall not affect the availability of relief under
paragraph (4) of this subsection. Any such order
becomes
shall
become final unless the person named
therein requests in writing a hearing before a hearing officer appointed by the
board no later than ten days after the issuance of such order. Review of such
order shall be available as provided in subsection (b) of Code Section
12-5-283;
(2)
Whenever, after a hearing is held in accordance with Code Section 12-5-283 and
Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' at the
request of the committee, for the imposition of civil penalties, the
administrative law judge determines that any person has failed, neglected, or
refused to comply with any provision of this part or any order of the committee
or administrative law judge, the administrative law judge may issue an order
imposing a civil penalty not to exceed $10,000.00 for such violation and an
additional civil penalty not to exceed $10,000.00 for each day during which such
violation continues. All penalties and interest recovered as provided in this
Code section, together with the cost thereof, shall be paid into the state
treasury to the credit of the general fund;
(3)
The committee may file in the superior court in the county in which the person
under order resides or in the county in which the violation occurred or, if the
person is a corporation, in the county in which the corporation maintains its
principal place of business a certified copy of the final order of the committee
or administrative law judge, unappealed from, or of a final order of the
administrative law judge affirmed upon appeal; whereupon the court shall render
judgment in accordance therewith and notify the parties. Such judgment shall
have the same effect, and all proceedings in relation thereof shall thereafter
be the same, as though such judgment has been rendered in an action duly heard
and determined by the court;
(4)
Whenever the committee, either before or after a hearing, determines that any
person is or has been violating any of the provisions of this part or any orders
issued under this part or any rules and regulations promulgated under this part,
the committee may file a petition for injunction in the proper superior court of
this state against such person for the purpose of enjoining such actions or, if
appropriate, may make application for a writ of mandamus in the proper superior
court of this state against such person for the purpose of compelling the proper
performance of his official duty. It shall not be necessary for the committee
to allege or prove that it has no adequate remedy at law; and
(5)
The superior court, upon finding that any person is or has been violating any of
the provisions of this part or any orders issued under this part or any rules
and regulations promulgated under this part, may order the person to restore, as
nearly as possible, all
marshland
marshlands
areas to the condition existing prior to
the alteration of
the
marshland
such
marshlands areas.
(b)
Owners of property with knowledge of unauthorized activities occurring thereon
are
shall
be responsible under this
part."
SECTION
9.
Said
title is further amended by revising Code Section 12-5-295, relating to
applicability of the Coastal Marshlands Protection Act of 1970, as
follows:
"12-5-295.
This
part shall not apply to the following:
(1)
Activities of the Department of Transportation incident to constructing,
repairing, and maintaining a public road system in Georgia;
(2)
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
area;
(3)
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;
(4)
Activities of public utility companies regulated by the Public Service
Commission incident to constructing, erecting, repairing, and maintaining
utility lines for the transmission of gas, electricity, or telephone
messages;
(5)
Activities of companies regulated by the Public Service Commission incident to
constructing, erecting, repairing, and maintaining railroad lines and
bridges;
(6)
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;
(7)
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:
(A)
The owner of a lot on which a detached single-family residence is located on
high land adjoining such dock; or
(B)
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; or
(8)
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."
SECTION
10.
Said
title is further amended by revising Code Section 12-5-297, relating to
liability for damages, as follows:
"12-5-297.
Any
person who causes or permits any removal, filling, dredging, or draining or
other alteration of
the
marshlands
area
in this state
within the
estuarine area thereof without first
obtaining a permit from the committee shall be liable in damages to the state
and any political subdivision thereof for any and all actual or projected costs,
expenses, and injuries occasioned by such alteration of the marshlands
area.
The amount of damages assessed pursuant to this Code section shall include, but
shall not be limited to, any actual or projected costs and expenses incurred by
the state or any political subdivision thereof in restoring as nearly as
possible the natural movement of the waters in the marshlands and replacing the
vegetation and aquatic life destroyed by any alteration of marshlands
area.
Damages to the state shall be recoverable in a civil action instituted by the
department and shall be paid to the department to cover the cost of restoration.
Damages to a political subdivision shall be recoverable in a civil action
instituted by said subdivision."
SECTION
11.
Said
title is further amended in Code Section 12-7-17, relating to inapplicability of
Chapter 7 of said title, by deleting "and" at the end of paragraph (10),
replacing the period at the end of paragraph (11) with "; and", and adding a new
paragraph (12) to read as follows:
"(12)
Projects that are subject to Part 4 of Article 4 of Chapter 5 of this title, the
'Coastal Marshlands Protection Act of 1970.'"
SECTION
12.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply to all applications for new
permits or modifications of existing permits filed on or after such effective
date.
SECTION
13.
All
laws and parts of laws in conflict with this Act are repealed.