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Privatization at the Capitol

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My last Insider’s Update was about a bill (HB370) that would have facilitated the privatization of Georgia’s salt marsh. Fortunately, because of the massive outcry of concern expressed by people across the state, the bill failed to pass the House before Crossover Day on February 29. If you were one of the many people who shared your concerns with your legislator: Thank you!

The privatization of our shared public resources has developed into concerning trend this session. It is one that must be addressed, bill by bill. Here are some of the most concerning other privatization bills that, if passed this legislative session, will undoubtedly haunt us into the future.

Bypassing Local Water and Land Use Planning

Private Groundwater to the Highest Bidder

HB1146 (R. Stephens (R)—Savannah) would allow private water providers on Georgia’s coastal plain (more than half the state) to supply water to new developments without coordinating with local governments or public water suppliers. These permits would fly in the face of responsible water conservation efforts and long-term planning work undertaken by local and state agencies charged with protecting Georgia’s fiscal and natural resources. More simply put, HB1146 would create an opportunity for an explosion of unplanned growth by developers who can afford to pay a private utility for water.  You can read a recent article about this bill here.

Status: HB1146 is sitting in Senate Rules, waiting to be voted onto the Senate floor for final passage. Click here to ask your Senator to VOTE NO on HB1146!

Private Cities

Senate Bill (SB)435 and its companion SR533 (both Ginn (R)—Danielsville) would put on the statewide ballot a measure that would establish a new type of local jurisdiction to be known as a “community development district.” The community development district would operate like a city or county, but with a major difference: the district’s elected officials would be selected by the owners within the district proportional to how much property they own. These two pieces of legislation would privatize government—including the right to tax and charge fees—and would provide major bypasses to compliance with local planning for growth and infrastructure expansion. Perhaps most concerning, however, is that the bill would assign more voting power to the wealthiest landowners—non-landowners would not have the right to vote in these new local jurisdictions and larger landowners would have the most voting rights.

Status: Although they did not crossover, SB435 and SR533 both had more than a half-dozen cosigners, including two coastal senators, Derek Mallow (D—Savannah) and Ben Watson (R—Savannah).

Stay Off My River!

Further inland, a battle over the privatization of freshwater fishing rights on and access to a stretch of the Flint River called Yellow Jacket Shoals is underway. (Read more here.) Although the Georgia Constitution specifically grants all Georgians the right to fish and hunt, and the Public Trust Doctrine (which ensures public ownership of navigable waters for the citizens of the US) is a foundation of American law, some private property owners don’t like sharing their fishing hole with others. In 2023, the legislature passed SB115 (McLaurin (D)—Sandy Springs), which affirms the state’s ownership of the bottoms of all navigable waters in GA and preserves the public’s right “to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine”—even when the state grants ownership of such bottoms to a private entity. This was a good and necessary bill.

But opponents won’t let it rest. This year, three bills are under consideration that could either affirm or further limit the scope of public access to Georgia’s navigable fresh waters and the fish therein. HB1172 and SB542 are attempts to roll back the protections SB115 has guaranteed Georgians. And HB1397 is a limited list of creeks, rivers, and other waterbodies that are presumed to be navigable and therefore available for the public to access. Any waterbody not included on the list is presumed to be private property and not able to be accessed by the public.

Status: HB1397 did not crossover, but HB1172 and SB542 did and are still alive. Click here to learn more about and take action to stop HB1397 and HB1172.

 

The last day of this year’s legislative session is March 29. Even if these bills do not pass, we can expect the theme of privatization of our limited public resources to carry into the future. The only way to combat those who would like to monetize our shared public resources is to participate in civic discourse—with letters to editors and online discourse, during dinner table conversations and in the rooms where these terrible ideas are being officially discussed.

All of these bills assign excessive privilege to a small group of people at the expense of our shared public resources, and we must stop them from passing—this year and in the future.

Learn more about the bills we’ve been following at the Capitol on Our Legislative Priorities page. You’ll notice that some of the bills mentioned here are not listed. We encourage you to use the links above and learn more/take action via our partners’ websites.

When We Litigate

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At the end of June, we filed litigation against the City of Brunswick and Maritime Homes over a new development. Despite overwhelming opposition from neighbors and evidence presented by OHM, members of the community, and lawyers that the proposed apartment complex violated the city’s design and zoning ordinances on the marsh front along Highway 17, City Commissioners voted 3-2 to advance the project.

We speak out about projects nearly every day of the week in every local jurisdiction on our coast. Rarely does our opposition lead to litigation. But in very special and important instances like this one, it does.

I wanted to share more about how we make the difficult decision to litigate so that, as supporters of OHM, you better understand our thought process and have confidence that your investment in our work is a responsible one.

Litigation must always be carefully considered. We ask many questions before pursuing litigation, such as:

  • Is the case law clear regarding the perceived violation of the law?
  • Have we been involved throughout the duration of the decision-making process on this project, and has our position been consistent and clear?
  • What will the precedent be if we win or lose?
  • Is OHM’s involvement necessary or are their other groups willing to take the case?
  • Can OHM afford the legal fees?
  • What will happen regarding the proposed project if we don’t litigate?

This careful, strategic approach has led to some big wins over the past 10 years—wins that have protected important resources and communities that would be in much worse condition had we not acted. Here are a few examples:


The Commissioner of the GA DNR vs. Honeywell International, LLC (2020): After nearly seven decades of failure to clean up the Brunswick LCP superfund site, in 2019 the Georgia Department of Natural Resources announced a settlement with Honeywell (the responsible party) to compensate for the recreational fishing opportunities lost due to contamination. Despite having received cost estimates of the damage equal to $4 billion, the parties proposed a settlement of $4 million—an amount equal to less than 1/100 of the total estimated cost.

Recognizing that this settlement would have been the end of negotiations for compensation and that $4 million was completely inadequate, OHM hired an independent attorney to file a motion to intervene in the settlement. In response, the parties promptly withdrew the proposed settlement and went back to negotiating.

Since then, OHM has been advocating for a Natural Resources Damage Assessment, which would more accurately determine the true value of the loss; this could lead to a fairer settlement amount and a much larger benefit for the communities affected by the contamination.


OHM vs. US Army Corps of Engineers (2021): After more than 30 years adhering to winter dredging windows, in 2020, the US Army Corps of Engineers announced plans to dredge Brunswick and Savannah Harbors during sea turtle nesting season—without requiring any environmental review as required by the National Environmental Policy Act (NEPA). In making this abrupt and dangerous decision, the Corps ignored comments from hundreds of sea turtle experts, scientists, and members of the public urging them to stick to their safe and effective decades-old policy of winter dredging.

Represented by the Southern Environmental Law Firm (SELC), OHM filed a motion for a temporary injunction with a federal court in Savannah. Our case highlighted the harm summer dredging would pose to nesting sea turtles and other species. We pulled in scientific experts, as well as sea turtle volunteers who are members of OHM, who could speak to the impact the Corps’ action would have. Ultimately, after reviewing these stories and testimony in which the Corps admitted they had violated federal law, the judge ruled in our favor, preventing the Corps from moving forward with their plan and saving untold number of threatened and endangered sea turtles from being killed.

Despite the 2021 victory, the Corps immediately resurrected plans to dredge year-round and we had to file another challenge last December. Fortunately, after OHM took action, the Corps changed course and agreed to rigorously research the impacts of summer dredging. Had we not brought this case and remained vigilant after our initial win, the Army Corps would be well on its way to setting back nearly 60 years of sea turtle population recovery efforts along Georgia’s coast.


Camden County vs. Petitioners and OHM vs. Federal Aviation Administration (FAA) and Camden County (2022): In our ongoing, years-long battle against Spaceport Camden, OHM assisted a citizens’ group in utilizing a rarely used provision of the Georgia State Constitution: registered voters have a right to petition for a referendum to repeal an action of a county government. The voters in Camden County sought to repeal the County Commission vote to purchase the proposed location for Spaceport Camden. During COVID, OHM stepped in to help. We collected the required number of signatures, and a referendum was held in April of 2022. In a 72%-27% victory, Camden voters overwhelmingly voted to repeal the resolution to purchase the spaceport location, which invalidated any contract Camden County had with the owner of the property. Camden filed challenges to the referendum and the petitions. OHM was not a party to the lawsuits, but we were able to use our resources and connections to fundraise for the legal fees and to hire independent attorneys to defend the petition and referendum. Our involvement resulted in setting an important legal precedent at the Supreme Court of Georgia and provided a back stop for residents to execute their right to protect their shared resources.

At the same time, Camden County’s Launch Site Operator’s License granted by the FAA is still in play for the project. OHM, with our partners at SELC, filed a challenge to the FAA’s issuance of the license. Our goal is to put a final nail in the Spaceport Camden coffin so that we, along with the Cumberland Island National Seashore, Jekyll Island, and private landowners who would have been put at risk from rocket launches, can breathe a sigh of relief. OHM was the only organization poised to both defend the spaceport referendum and challenge the FAA license.


Over the past 10 years, we have proven that OHM stands ready to act. Our action always begins by communicating our love for this place. But advocacy that’s only about love isn’t always the most effective tool in our toolbox. Sometimes more traditional forms of advocacy—like litigation—are needed. Ultimately, no matter how much we stand together to celebrate a place, the decision makers may still vote for projects that will destroy it. Litigation is always a drastic step. But under the right circumstance, it is one we are willing to take if it is what is necessary to protect our coast.

If you have questions about OHM’s strategy or would like more information about any of these cases, please let me know.

Thanks for all you do,

Megan