‘Land’ vs. ‘Marsh’ Controversy Deepens with Attorney General’s Ruling

The Initiative to Protect Jekyll Island (IPJI) is disappointed with Attorney General Sam Olens’ official interpretation of the 65/35 law, which supports the claim of his client—Jekyll Island Authority—that tidal marsh above water at mean high tide can be counted as part of Jekyll’s “land area” when determining the number of acres legally eligible for development. 

Fundamental to our disappointment with the AG’s ruling is its failure to confront the undeniable truth that tidal marsh is not ‘land.’ Common sense confirms that obvious truth and so does Georgia law, specifically the Coastal Marshlands Protection Act, which defines marsh, distinguishes it from land, and uses science-based criteria to determine where the two meet. As well, federal law distinguishes tidal marsh from land as does the Environmental Protection Agency, U.S. Fish & Wildlife Service, and Army Corps of Engineers.  

Beyond the widely accepted and fundamental difference between “marsh” and “land” as physical features are other compelling grounds for objecting to the AG’s ruling:

  • According to the 65/35 law, the Authority is “empowered to survey, subdivide, improve and lease as subdivided not more than 35 percent of Jekyll Island which lies above water at mean high tide.” Since the Authority does not have the right to “subdivide, improve and lease as subdivided” tidal marsh, the words “land area” obviously refer to leasable land—actual land— not to tidal marsh. 

  • If the 65/35 law intended to include the entire area above mean high tide as part of Jekyll’s land area, the law would have  referred to the “area of Jekyll Island that lies above water at mean high tide,” not the “land area.” By including the word “land” to qualify the word “area,” the law narrowed its application to actual land, which does not include tidal marsh.

  • The distinction between land and marsh was made perfectly clear in a pair of letters sent to the JIA by the author of the 65/35 legislation, State Rep. Michael J. Egan.   Rep. Egan said, point blank, that marsh was not to be included as part of Jekyll’s land area. He also said that his fellow legislators who voted for the 65/35 bill understood the legislation applied to the “high ground” of Jekyll Island. While legislative intent may not be a determining factor in a court of law, it should be taken into account by anyone who truly wants to understand the meaning of a given statute.

  • On-site conditions show that much of Jekyll’s marsh that lies landward of the mean high tide mark adopted by the JIA and is actually below water at the time of mean high tide. Since the 65/35 law pertains to “the land area that lies above water at mean high tide,” marsh that’s belowhigh water at mean high tide cannot, by law, be part of the 65/35 mix even if marsh were to be construed as ‘land.’

While IPJI wholeheartedly disagrees with the AG’s opinion, we are encouraged by his recommendation that any proposal to modify the 1996 Master Plan so as to substantially increase the measured land area of Jekyll and the number of acres eligible for development should be “thoroughly evaluated in a public process and that final action be deferred until the General Assembly has an opportunity to weigh in….” Given that the JIA is proposing to modify the 1996 Master Plan by adding more than 1,300 acres to the island’s land mass, it would seem that the AG’s opinion in this regard should carry as much weight with the JIA as his opinion about how Jekyll’s land area should be measured.

Interestingly, the AG goes on to state that the General Assembly could consider amending the 65/35 law by simply declaring “the size of the island or stating precisely how much acreage is subject to development. Such a determination would certainly prove more definite and dependable than one that can be altered in the future by scientific advancements or changing tides.” 

In view of the JIA’s repeated and publicly-stated insistence that it has no short-term or long-run plans to do anything other than redevelop land within existing footprints, the Authority should welcome an opportunity to resolve the 65/35 debate by legally limiting the maximum number of developable acres to the current development footprint on Jekyll Island, which is roughly 1,480 acres.  Redevelopment of currently developed land, including hotel properties that are now vacant, would not be affected by such an agreement.  Again, a settlement of this type should be appealing to the JIA if the Authority truly has no plans to do anything with land that has not been previously developed, as it is now claiming.