Revised 9/1/05
Department of Natural Resources - Coastal Resources Division
Marinas and Community Docks
Stakeholder Process
July 27, 2005 Meeting Summary
Brunswick, GA

Stakeholder Advisory Committee Members Present:

· Bill Foster
· Jerry Hogan
· Jack Jones
· Shawn McClellan
· Patty McIntosh
· Stephen Patch
· Mike Pranschke
· Gordon Rogers
· Bill Shanahan
· Wade Shealy
· Tom Thomson
· John Vergoz
· Nick Williams

Stakeholder Advisory Committee Members Not Present:

· Mike DeMell (substitute Gayle Kazelesky attended)
· Cap Fendig (substitute Boyce Mann gave the marina tour)
· Cecily Hill
· Ernest McIntosh
· Steve Scholar
· Fred Stregles
· Sonny Timmerman

Georgia Coastal Research Council Members Present: Janice Flory

Coastal Resources Division Staff Present: Susan Shipman, Karl Burgess, Kelie Moore, Rhonda Knight, Jim Garner

Facilitators Present: Courtney Tobin and Dennis Epps, Fanning Institute, University of Georgia

 

Welcome, Introduction and Discussion of Marina Tour

Stakeholders braved temperatures near 100 degrees to tour the Golden Isles Marina, which is certified as a Clean Marina under the Clean Marinas Program.  The tour was exceptional, providing stakeholders with an opportunity to see many Best Management Practices (BMPs) for marina operations.

Stakeholders briefly discussed the tour at the beginning of the working meeting and raised several questions.  One stakeholder clarified that the decking for docks typically needed to be replaced every 15-20 years, and the piling required replacement every 20-25 years.  The life of dock materials ranged widely depending upon the materials utilized and level of maintenance.

Another issue arose related to zoning.  Stakeholders noted that the communities tend not to regulate beyond the land lines.  If there is a community dock, that becomes a permit issue for them to deal with the State of Georgia. A typical covenant may state that slips can only be used by residents.  Conversely, public use requires actual zoning.  One member asked about the zoning required for the Sail Harbor project, and the questions was asked about zoning for marinas in local government codes. Tom Thomson promised to follow up on the specifics of Chatham County Regulations.  Stakeholders noted that marinas are regulated by county regulations, EPD, EPA, the Army Corps of Engineers (Corps) and CRD, all of which have rules and regulations.  In response to a question, it was noted that the state EPD is responsible for enforcing storm water regulations, but inspections are conducted by the county. 

Stakeholders then briefly discussed the requirements for fueling boats and learned that the insurance regulations are likely the strictest.  Most marinas require or prefer that boat owners operate the fuel pump, as that transfers liability for spills.  A few marinas will pump for customers if they request it.  With respect to spills, marinas have emergency plans on file, and many work with an environmental company which can assist in the cleanup if it is substantial. DNR, EPD, the Coast Guard and local emergency management are all involved. 

One stakeholder noted that the $500 automatic fines imposed in response to spills and other emergencies have the effect of deterring phone calls from marinas that would like to do the right thing by properly reporting problems.  It was noted that most marinas have a few problems it is impossible to be in compliance with all regulations 100 percent of the time. 

CRD staff then distributed a document entitled Marinas: Best Management Practices and Water Quality authored by the Georgia Coastal Research Council.  A copy of this document may be found at Coastal Resource Divisions website, www.crd.dnr.state.ga.us.  For questions on siting and construction, please refer to the summary provided or contact Janice Flory at jeflory@uga.edu.  For additional information on marina operations issues, please contact Paul Christian at Marine Extension Service, or log onto http://www.uga.edu/cleanmarina.
Discussion of United States Army Corps. of Engineers Permitting Process

Mark Padgett with the United States Army Corps of Engineers gave a brief overview of the permitting process through the Corps.  Mr. Padgetts can be reached at (912) 652-5052 or mark.j.padgett@sas02.usace.army.mil  A copy of his powerpoint presentation may be found at the Coastal Resource Divisions website, www.crd.dnr.state.ga.us.  Mr. Padgett discussed the various regulatory relationships involved in the permitting process and the origins of the Army Corps of Engineers involvement in the process.  Mr. Padgett reviewed regulations pertaining to nationwide and regional permits as issued by the Corps. 

Several stakeholders raised questions about notification during the permitting process.  Mr. Padgett explained that the Corps maintains a list of individuals and organizations who would like to be notified of pending permits.  The Corps also tries to the best of our knowledge to inform all adjacent property owners.   Public notices are also on the Corps of Engineers website, which is updated on a weekly basis. A public hearing can be requested for any project, but issues are typically addressed through a written process correlating to the public notification.  Public hearings provide an opportunity for views to be expressed, but the Corps issues no response during these meetings as the hearings are listening sessions. In response to a question, Mr. Padgett clarified that public hearings are required if an environmental impact statement is required.  

Mr. Padgett explained that the Corps takes 31 public interest factors into consideration in its review, but that the actual dock and not the subdivision upland, is the issue on which it focuses.   He then highlighted numerous federal laws, including the Endangered Species Act, as issues which can completely halt a permit application. The Corp cannot issue a permit that would violate a state or federal law.

In response to a question on when 401 water quality certification is required, he explained that any application which includes the potential for gas, fuel or pump out facilities (almost anything except a private dock) must obtain this certification.  The certification process itself has been delegated to the state. Public marinas, private marinas, and larger community docks would likely require a 401 water quality certification. The Corps decides which applications require this certification based on water quality issues.  EPD is the agency at the state level which issues and enforces these certifications.  EPA would be responsible for enforcement if a substantial enforcement issue arose.

In response to a question on the definition of navigable waters, Mr. Padgett advised the stakeholders to think of tidal waters, not necessarily water in which a boat could float or navigate.  Section 404 of the Clean Water Act deals with waters of the United States.  This is a different term than navigable waters.  Waters of the United States include navigable waters and wetlands and this is the section where upland issues arise.    Responding to an additional question, Mr. Padgett noted that Section 404 of the Clean Water Act regulates wetlands because they help clean the water, but it is not a specific wetland protection.  The purpose of this part of the Clean Water Act is to regulate pollutants, even in the uplands, that are going to affect water quality.  If the pollutant is isolated, the Corps cannot regulate it.  But if the river system floods, the pollutant is no longer isolated.  This is why the Corps is now regulating isolated wetlands within the 100 year flood plain.   The Corps does not regulate groundwater withdrawal. 

Discussion Regarding the Public Trust Doctrine

In response to numerous questions by the stakeholders on the public trust doctrine, Karl Burgess of CRD gave a brief powerpoint presentation on the history of the public trust doctrine and its applicability to docks and marinas permitting.  A copy of his PowerPoint presentation can be found on the CRD website at www.crd.dnr.state.ga.us.  Mr. Burgess described the trust as a legal trust with actual assets and beneficiaries.  Land subject to the ebb and flow of the tides, the navigable waters of the US and the living resources within are all included in the trust.  DNR serves as the administrator of the public trust on behalf of the Governor. The state can convey the subservient private title but not the dominant public title.

In response to a question about crown or kings grant lands, those lands are not owned by the state, but are regulated by the states because at all times it retains the dominant title in the lands.  The state can convey the lesser title but retains the public title. The State regulates up to the high water mark with respect to kings grant lands.  The result of this analysis is that an owner cannot build a dock on kings grant land without state permission.  The Shore Protection Act would regulate a pier or crossover over the beach. 

In response to a question about how the public trust doctrine relates to riparian rights (ie, where a person owns land on both sides of the river and wants to fence the river), stakeholders and others noted that the public trust doctrine applies only in certain areas of the state and only to certain resources.  It would not apply to a river in north Georgia, for example.

Another participant noted that navigability under federal law is fundamentally different than navigability under state law.   Under state law, a boatload of freight needs to be able to float down a water system for it to be navigable.  Under state law, if the owner of a non-navigable stream (and the land on both sides) wanted to fence the stream to prohibit trespass in a canoe, they would be permitted.  The lower Chattahoochee and the lower Altamaha are navigable waters under Georgia law.  A variety of state court cases define navigability and how much freight is needed in the boat. 

The public trust doctrine is very different from the definition of public use of water.  Public trust means that the state owns part of it and can regulate it.  Public use of water does not mean that the state owns the water, but that the state regulates water use. 

 

Additional Information and Bottleneck Issues

In response to previous questions from stakeholders, Ms. Shipman gave the stakeholders information on the number of minor alterations that the agency has acted on over the past five years.  Also in response to a request from stakeholders, she distributed a memorandum on permitting process issues based on an internal review by staff.  The stakeholders found this information very helpful and had numerous questions related to the memorandum.  First, they asked if CRD could maintain a pre-approved group of consultants for large projects.  CRD staff noted that there is a group of these consultants who typically work on the larger projects.  Stakeholders were concerned about the amount of time staff spends providing free information to speculative or actual applicants who could be paying private consultants for this information.  Ms. Shipman noted that the staff is there to serve the taxpayers, and they are expected to respond to every inquiry.

The group also discussed timing, noting that the Corps cannot issue its permit until the state issues a permit. In the current process, an ordered agenda is utilized, and the Committee hears about the project, takes questions, takes public comment, lets applicant respond, then deliberates and takes a vote.  The process only ends when they take the vote.  Several stakeholders expressed concern that an applicant can be within the guidelines and the law and still be asked to provide additional information. 

Discussion of Critical Issues

The stakeholders then worked as small groups to further clarify and delineate critical issues that must be included in the recommendations.   Members were asked to keep the groups assigned task in mind when discussing critical issues.  The stakeholders have been charged, as a group, with proposing standards/guidelines for permitting that improve:
1. Consistency
2. Predictability
3. Efficiency

Considering this charge, the following critical issues were discussed and listed by the group:

· How DNR views the public interest test
· DNR staffing issues
· Assessment of cumulative impacts
· Fee structure (lease agreements)
· Comments from permit applicants, the committee and the public
· Siting decisions, including wildlife and endangered species and critical areas
· Design of docks and marinas
· Time limits for DNR to process permits
· Coordination
· Substantially complete application, including a checklist and/or a manual
· Education, including online education and a manual
· Upland activities, including water quality issues and avoiding overlap with other regulatory entities territories
· Voluntary issues

The groups then all worked on lists of issues they would recommend including in a checklist to reach a substantially complete application.  They were asked to continue to think about this issue, as the group will resume work on this topic at the next meeting.

Public Comment and Future Meetings

There was no public comment provided at the meeting, either in person or via computer.  The next meeting of the stakeholders will be held on Tuesday, August 30 at the Mighty 8th Air Museum in Pooler from 1:00 to 5:00 pm.  Directions to the meeting may be found on the Coastal Resources Division website at www.crd.dnr.state.ga.us.  Future meeting dates include:

  September 29
  
  October   27

The meeting adjourned at approximately 5:00 pm. 

** Any questions about or corrections to these meeting notes should be directed to Courtney Tobin (706) 542-7149 (tobin@cviog.uga.edu) or Dennis Epps (706) 542-6244 (epps@cviog.uga.edu), meeting facilitators, Fanning Institute, University of Georgia.