Jekyll Island staff asks attorney general for an opinion on whether high marsh can be counted as land
If so, Jekyll Island Authority would get nearly 600 acres
of more land to build on
By Terry Dickson
June 9, 2013
JEKYLL ISLAND | Environmentalists say the difference in land and marsh is obvious, and that the staff of the Jekyll Island Authority is asking the state Attorney General Sam Olens to define high marsh as land solely to increase the amount of the island’s high ground it can develop.
Authority spokesman Eric Garvey said the island’s professional staff simply wants to use the same measurements that have been in use since 1973 when the island’s first master plan was drawn up. That calculation, which was used again in 1996 without dispute, shows that the authority has about 100 more acres it can develop, Garvey said.
The size of the island is an important element, said David Kyler, executive director of the Center for a Sustainable Coast, because a state law limits how much of it can be developed.
The 1971 act that created Jekyll Island State Park and the governing authority said that 65 percent of the island must be left in a natural state.
But the law also included the phrase “above the mean high tide,’’ he said. Advisers to the authority staff have asked Olens to render an opinion on whether all the marsh that is not flooded by a mean — or average — high tide can be considered land, Kyler said.
If the attorney general agrees that is what the law says, then the island would grow by 1,900 acres of high marsh, Kyler said.
When the 35 percent is applied to the island’s enlarged land mass, “They would get 595 more acres to develop,’’ Kyler said.
That’s nearly six times the amount the authority had said remains available for development, but Garvey said that’s because of new technology.
Under old surveys, Jekyll Island said the island had 4,800 acres above mean high tide. With modern technology, it is now known there are 5,600 acres above mean high tide, he said.
If the 5,600-acre survey is used, the developable high ground on the island would go from 35 percent to 50 percent, Kyler said.
Under the new task force’s computation using only land above the highest tides, the island has only 3,400 acres, which is a steep reduction, Garvey said.
The query for the attorney general’s opinion was made because the task force — which includes island residents — measured the island’s size with a method that is different from the one that has been used for 40 years, Garvey said.
Garvey said the query to Olens was made by the authority staff and has not been put before the authority’s board for action.
“We did not want to bring something before the JIA Board for consideration if there was a question regarding its compliance with the law,’’ Garvey said.
Once the question is settled, the staff would then bring it before the authority board for its consideration, he said.
But Kyler said if Olens says high marsh is land under the 1971 law, the matter would not be settled and would instead head to court.
Kyler said the amount of developable land cannot be established by what is above the reach of an average high tide.
There are plenty of acres that are never reached by a mean high tide that nonetheless get flooded during high full moon and new moon tides, he said.
“It is sustained as marsh by the highest of high tides,’’ Kyler said.
Those high marshes are the lands of the state and have the protection of the federal government and Georgia’s Marshland Protection Act, Kyler said.
Steve Kaley, a staff lawyer for GreenLaw in Atlanta, said the law should be easy for anyone to understand.
“It says land area. They don’t define land in the statute,’’ he said of those who wrote the 1971 law, “but they obviously don’t mean marsh.”
Kaley said there is also the issue of all the work put in by the experts and citizens on the most recent task force who agreed the island stopped at the marsh.
Even though they recognized that 38 percent of the island had already been developed under that measurement, the task force wasn’t asking the authority to “give back’’ that 3 percent even though some of it is vacant, Kaley said.
Both Kaley and Kyler said the issue could go beyond Jekyll Island and change the definition of protected marsh all along Georgia’s coast.
That would affect setbacks that now protect the marsh from construction and other encroachment, Kyler said.
Kaley says Jekyll Island has plenty of land for construction and has had trouble finding investors to build hotels and other amenities on the island.
“Market what you’ve got,’’ Kaley said. “They’ve got plenty of land.”
GreenLaw’s website says it gives Georgia’s environment its day in court.
Kaley declined to speculate on whether GreenLaw would sue to protect Jekyll Island’s remaining undeveloped uplands should Olens define the high marsh as land, but he said someone almost certainly would.
“Do they want to be dragged through all that with the time, the effort and the money?’’ he asked.
Terry Dickson: (912) 264-0405