summer- fall 2008 south carolina environmental law project newsletter

8/9/2019 Summer- Fall 2008 South Carolina Environmental Law Project Newsletter

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South Carolina Environmental Law Project ~ P. O. Box 1380 ~ Pawleys Island, SC 29585 ~ 843-527-007

Mountains & MarshesSummer/ Fall 2008

A Call to ArmsSCELP Fights to Overturn Ruling Threatening Loss of Isolated Wetland

Adevelopers relentless attempt to do away with protections for South Carolinas coastal isolated we

lands has SCELP up in arms and were fighting back. The South Carolina Supreme Court has

agreed to hear our appeal in a case challenging the validity of the South Carolina Coastal Manage-

ment Program. The case presents an issue of major importance to the freshwater wetlands, historical sites

and other natural and cultural resources of the states coastal zone. The Coastal Management Program

gives protection to these special resources. If the Coastal Management Program (CMP) is ruled to be inval

existing CMP protections for coastal resources outside the critical areas (salt waters, salt water tidelandsbeaches and dunes) may be lost.

The South Carolina Environmental Law Project

represents the League of Women Voters, the South

Carolina Wildlife Federation and the South Carolina

Coastal Conservation League in this critical case.

The case originated in a developers application

for a storm water permit and coastal zone consis-

tency certification, including a request to fill 31.76

acres of freshwater wetlands in Horry County nearMurrells Inlet. Spectre, LLC, proposes to build a

commercial development on the filled wetlands and

another 31.17 acres in a tract adjacent to US High-

way 17.

The South Carolina Department of Health and

Environmental Control (DHEC) denied Spectres

application, concluding that the filling of wetlands

for commercial development would violate the

Coastal Management Program. Spectre asked the

DHEC Board to review the decision, and the Board

voted unanimously to affirm the staffs denial.

Spectre then appealed the DHEC decision to the

Administrative Law Court. On February 20, 2008,

Administrative Law Judge John D. McLeod issued

an order reversing the DHEC decision and ruling

that Spectre is entitled to have its storm water permit

deemed approved.

Almost immediately after this ruling, Spectre moved

forward with development plans and clearcut the entire 60

acre tract. SCELP filed a motion asking the ALJ to issue a

follow-up order that stayed the effect of his initial ruling

until the appeal is resolved. Fortunately the ALJ granted our

motion and ordered the developer to stop any further work

on the project, and the wetlands have not been filled.

Judge McLeod based his ruling on his conclusions that

(1) the Coastal Management Program cannot be utilized by

DHEC because it was not promulgated as a regulation under

the procedures set forth in the South Carolina Administrativ

Procedures Act (APA); and (2) the Coastal Management P

gram does not apply to isolated freshwater wetlands that are

outside the federal jurisdiction of the Clean Water Act. But

believe that the Judge got it wrong on both points.

The CMP is a document prepared by mandate of the 197

state Coastal Zone Management Act (the 1977 Act), whic

Wetlands that Spectre, LLC, wants to fill for a commercial development

Because they have both land and aquatic characteristics, wetlands are somethe most diverse ecosystems on earth. About one-fourth of the plants, one-of the fishes, two-thirds of the birds, and three-fourths of the amphibians lias threatened or endangered in the United States are associated with wetla

(Continued on pa


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provided a specific process for passage of the CMP that was different

from, and in some ways more rigorous than, the APA.

The 1977 Act recognized the immense public value of coastal re-

sources, and established a new state agency, the South Carolina Coastal

Council (now known as DHECs Office of Ocean and Coastal Resource

Management or OCRM), which was instructed to protect and, where pos-

sible, to restore or enhance the resources of the States coastal zone for this

and succeeding generations.The 1977 Act created two new regulatory programs: (1) a permitting

program, under which a permit is required before anyone can alter a criti-

cal area; and (2) a certification program, under which the state agency re-

views all other state and federal permits in the coastal zone (eight coastal

counties) to determine whether these permits would be consistent with the

state coastal management program.

For the permitting program, the 1977 Act directed the Coastal Council

to promulgate regulations utilizing the procedures set forth in the Adminis-

trative Procedures Act. For the certification program, the 1977 Act directed

that the Coastal Council make a comprehensive study of coastal resources,

prepare a draft coastal management program, conduct a series of statewide

public hearings after making the draft program and other pertinent docu-

ments available for public review, and then submit the final management

program to the General Assembly and the Governor for approval.

The Coastal Council followed the statutory requirements and submit-

ted the Coastal Management Program to the General Assembly in 1979.

The General Assembly approved it by Joint Resolution, and Governor

Richard Riley gave it his approval on June 19, 1979.

Since then, the agency has reviewed thousands of state and federal per-

mits in the coastal zone using the CMP policies, and either issued, denied,

or issued with conditions, certifications of these permits.

South Carolinas highest courts have applied and enforced the policies

of the CMP in numerous cases brought by SCELP. Some of these cases are

discussed at the end of this article.

The document called the Coastal Management Program is rather

unique. It includes a discussion of the South Carolina coast, its history,

South Carolina

Environmental Law Project, Inc.(a 501c3 tax-exempt non-profit corporation)

Mission Statement

To protect the natural environment

of South Carolina

by providing legal services and advice

to environmental organizations

and concerned citizens and

by improving the states system

of environmental regulation.

Board of Directors

Frances Close, Chair

James S. Chandler, Jr.

Kim Diana Connolly

Daryl G. Hawkins

Wendy Zara

Margaret D. Fabri

David J. Harmon

Gary W. Poliakoff

Staff

James S. Chandler, Jr., Director

Amy Armstrong, Staff Attorney

Jordan McDonald, Administrator

Office address

430 Highmarket Street

Georgetown, SC 29440

Mailing address

P. O. Box 1380Pawleys Island, SC 29585

Telephone: (843) 527-0078

FAX: (843) 527-0540

E-mail: [email protected]

Website: www.scelp.org

(Continued from page 1)

Qui ck SCELP Case Updates :

Chem- Nuclear: Our appeal of thepermit for this radioactive waste land-fill is now pending in the SC SupremeCourt. We expect a decision early in2009.

Highw ay 601- Congaree Na-t ion al Park: The Administrative LawCourt dismissed our appeal of theDHEC permit, saying that DHECs fail-ure to make a timely decision pre-cludes further review. Weve appealedto the SC Court of Appeals. We expecta hearing on our Federal Court suitsoon.

Twenty-two states have lost at least 50 percent of their original wetlands. Since the 1970s,the most extensive losses have been in Louisiana, Mississippi, Arkansas, Florida, SouthCarolina, and North Carolina. (Wetlands, 2nd edition, Van Nostrand and Reinholdt, 1993.)


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natural, cultural and historical resources, and a set of

policies.

The CMPs policies are rules that are similar to the

rules that govern permitting in the coastal critical areas.

There are guidelines for evaluation of all projects, and spe-

cific policies applicable to various types of development.

For commercial development like Spectres, the poli-

cies include this rule: Commercial proposals which re-

quire fill or other permanent alteration of salt, brackish or

freshwater wetlands will be denied unless no feasible al-

ternatives exist and the facility is water-dependent.

The Administrative Law Judge (ALJ), in ruling that

the CMP doesnt apply to freshwater wetlands, focused on

one policy statement that uses the term freshwater

marsh: Project proposals which would require fill or

other significant permanent alteration of a productive

freshwater marsh will not be approved unless no feasible

alternatives exists or an overriding public interest can bedemonstrated, and any substantial environmental impact

can be minimized. This policy follows more than a

dozen other policy statements that use the more general

term wetlands. The Spectre sites wetlands consist of

swamp and Savannah wetlands, not the types of wetlandsgenerally designated as marsh.

In the discussion portions of the CMP, the description

of the coasts natural environment includes a section enti-

tled Marshes and Wetlands. Within this category are

several sub-headings, describing all types of coastal wet-

lands.

The state agency has interpreted the term wetlands

to include all of the types of wetlands described in the

CMP, and all wetlands have been protected under the

CMP since the inception of the coastal program.

The broader impact of the ALJs decision comes from

his conclusion that the CMP is invalid because the agency

did not promulgate it under the Administrative Procedures

Act. The judge ruled that compliance with the procedures

set forth in the Coastal Zone Management Act, and the

approval by the General Assembly and the Governor, do

not excuse the failure to comply with the APA. In effect,the ALJ ruled that the CMP must be approved twice.

The ALJ relied on prior decisions of the SC Supreme

Court that held that agency policies which have not been

promulgated under the APA cannot be generally applied in

permit decisions. But in those cases, the policies had un-

dergone no public notice, hearing or other formal approval

process they were simply internal policies adopted by

agency staff with no outside review. Unlike those policies,

the CMP underwent a hearing and approval process that

SCELP believes is more rigorous than the process speci-

fied by the APA. For example, the APA allows regulations

to become effective without an affirmative approval by the

legislature, but the 1977 Coastal Zone Management Act

required an affirmative vote of the General Assembly.

The ALJs ruling, deeming the Spectre permit granted

without a coastal zone consistency review, would mean that

the mandate of the 1977 Act consistency review ofall

state and federal permits in the coastal zone will not be

carried out until and unless the agency obtains approval of

a new CMP. SCELP believes that the statutes requirements

still apply, and that if the 1979 CMP is not valid, the

agency must suspend approval of permits until a new CMP

is approved.

Until the appeal is decided, DHEC and OCRM are still

using the CMP in reviewing all coastal zone permits.

Coastal freshwater wetlands and other natural, cultural

and historic resources outside the saltwater critical areas are

important elements of the coastal environment. Without the

protection of a valid coastal management program, these

resources will be degraded and lost at a rate even faster

than is already occurring. We need your financial support

today so we can make sure that doesnt happen.

SCELP cases in whi ch t heCoastal Management Program

has been appl ied and enfo rced:

1988: the SC Supreme Court reversed the

Coastal Councils decision to certify a permit todredge a canal through freshwater wetlands onthe Waccamaw River in Georgetown County, cit-ing violations of CMP policies.

1991: the SC Supreme Court ruled that par-ties interested in a coastal zone certification areentitled to constitutional due process protections:notice and opportunity for hearing.

1998: the SC Court of Appeals overturnedthe certification of a permit to fill wetlands fordevelopment, citing violations of CMP policies.

Without the protection of a valid coastal

management program, [coastal] resources

will be degraded and lost at a rate even

faster than is already occurring.


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CliffsCommunities: SCELP represents UpstateForever, Sierra Club, Save Our Saluda, South Carolina

Native Plant Society, South Carolina Wildlife Federation,

and Trout Unlimited in an appeal of permits for the pip

ing, impounding and bridging of over 1,100 linear feet

of the North Saluda River and its tributaries for the con

struction of a golf course. Our appeal will be heard by

the DHEC Board on July 11.

NorrisTurkeyFarm: SCELP represents the Chesterfield Environmental Coalition in an appeal of an agri

cultural permit for a turkey farm. The farm would be

located adjacent to the Sandhills State Forest and the H.

Cooper Black Field Trial and Recreation Area, and close

to other recreational areas. Waters downstream from

the farm are impaired for mercury and fecal coliform

and adjacent wetland drains into a stream that feeds a

lake used by the Boy Scouts nationally recognized

camping facility less than a mile away.Wedgefielddredging: DHEC approved Wedgefield Plantation Associations plan to redredge the man

made canals within Wedgefield and to place the

dredged materials in 12.8 acres of vegetated freshwater

wetlands adjacent to the Black River. The proposal is

nearly identical to one that was denied by DHEC in

2004. SCELP is pursuing an appeal on behalf of the S.C.

Coastal Conservation League and the League of Women

Voters of Georgetown (LWVG).ColonyPointedredging: Representing the LWVG

and the Sierra Club, SCELP is fighting to uphold a prece

dent established in a1998 case that SCELP won prohib

iting dredging in Colony Pointe canal and other dead

end finger canals within Debordieu. Debordieu is adja

cent to the North Inlet/Winyah Bay National Estuarine

Research Reserve (NERR) in Georgetown County.

DeerfieldPlantation: SCELP represents a Deerfield Property Owners Association an appeal of permits

for development proposed for the golf course which the

Deerfield residences abut. Our appeal seeks to protect

wetlands which are part of a stormwater drainage sys

tem that serves the neighborhood. Despite the presence

of substantial wetland areas on the property, the appli

cation filed by the developer claims that there are no

wetlands on the site.

SCELPsNewestCases:Over the past few months, SCELP has undertaken a number of new cases. Among the most notable are:

According to Deerfield developer, this is not a wetland.

SCELPs Saves the Day by Hosting the Pawleys Pavilion ReunionJust when it looked like the Pawleys Pavilion Reunion one of the most popular events in the Pawleys Island area

for the past 10 years was about to be cancelled, SCELP stepped up and agreed to host the event. With the wonderful

work of Allison Black Cornelius, the 2008 event drew a crowd of about 1,400, many of whom said it was the best yet!

Some asked why SCELP was hosting a dance party. SCELPs Jimmy Chandler answered that when you talk about

being an advocate for the environment, you are also talking about being an advocate for communities. Both SCELP and

the Pavilion Reunion support strong, healthy communities.

After brief, but strong, thunderstorm struck, a rainbow appeared foretelling the success of the event. But we could-

nt have done it without the financial support of our sponsors and the hard work of our volunteers. THANK YOU!

summer- fall 2008 south carolina environmental law project newsletter

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