C&M Enterprises of Georgia, LLC v. Williams

Ellington, Presiding Judge.   In March 2016, Mark Williams, acting as the Commissioner of the Georgia Department of Natural Resources and the Chairman of the Coastal Marshlands Protection Committee, determined that a portion of a bulkhead on riverfront property in Bryan County owned by C&M Enterprises of Georgia, LLC, was illegally located in a protected estuarine area of marshlands within the Department’s jurisdiction. Based on this determination, Williams issued an order directing C&M to remove the structure. C&M filed an appeal from the order to the Office of State Administrative Hearings, and both parties filed motions for summary determination.^[1] An administrative law judge granted Williams’ motion for summary determination and denied C&M’s motion. C&M appealed to the superior court, which also affirmed.^[2] We granted C&M’s application for discretionary appeal, and it contends that Williams arbitrarily and capriciously failed to apply the agency’s standard policy to determine the boundary between C&M’s property and protected marshlands within the Department’s jurisdiction.^[3] For the reasons explained below, we affirm.   Delineating a Jurisdictional Line. By way of background, we note that the Coastal Marshlands Protection Act of 1970, OCGA §§ 125280 through 12-5-297, was enacted to regulate structures and activities in Georgia’s coastal marshlands “to ensure that the value 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.” OCGA § 12-5-281. Marshlands include “any marshland intertidal area, mud flat, tidal water bottom, or salt marsh in the State of Georgia within the estuarine area of the state,” whether tidewaters reach the area “through natural or artificial watercourses.” OCGA § 125282 (3). The Act provides:No person shall remove, fill, dredge, drain, or otherwise alter any marshlands or construct or locate any structure on or over marshlands 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, the commissioner.