December 2003 South Carolina Environmental Law Project Newsletter

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Mountains & MarshesSouth Carolina Environmental Law Project P. O. Box 1380 Pawleys Island, S. C. 29585 843-527-0078

December 2003

Quality

Management

of

South

Carolinas

Coast

Is our

CoastalManagement

Agency

up to

the

Task?

Commentary

by

SCELP Director,

Jimmy Chandler

ANYONEPAYINGATTENTION to the list of cases tackledby the South Carolina Environmental Law Projectover its 16-year existence knows that most ofour time is spent dealing with coastal issues.

While were very proud of our up-state successes, includ-ing roles in the closings of the Pinewood hazardous wastelandfill, and the Rock Hill ThermalKEM and Roebuck TOChazardous waste incinerators, our day-in and day-out fo-cus has always been the South Carolina coast.

The precedents set by our cases provide some ofthe most important rules for coastal development. Ourfirst Willbrook Plantation case established that developerscannot justify dredging canals through wetlands by point-ing to the economic benefits. Our second Willbrook Plan-tation case, and our Buzzards Roost Marina case, securedcitizens due process rights the constitutional rights tonotice and opportunity for hearing in environmentalcases. Our Andell Harbor Marina case established thatnew marina basins must comply with wetlands policiesand meet state water quality standards. We reinforced

rules that prevent dredging of salt marsh and shellfishbeds where theres no overriding public interest in ourDeBordieu canal case. In the Four Holes Swamp Speedwaycase, our Amicus brief helped establish that coastal zoneconsistency certifications are contested cases in whichparties have full rights to a hearing before an Administra-tive Law Judge.

The one thing these cases have in common is thatin each of them our legal challenge overturned an errone-ous decision made by the South Carolina Department of

Health and Environmental Control, Office of Ocean andCoastal Resource Management (DHEC/OCRM), or itspredecessor, the South Carolina Coastal Council. Withoutour intervention, wetlands would have been dredged andfilled, shellfish destroyed or contaminated, and coastalhabitats disturbed. And without our legal action, all ofthese activities would have been considered perfectly le-gal, covered by permits and certifications issued by ourcoastal management agency.

(Continued on page 2)


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Despite these legal bat-tles, for years I felt that ourcoastal management programwas effective and well run. Atone time, the South CarolinaCoastal Council was recognizednationally as one of the shiningexamples of an excellent coastal

management agency. Our 1977Coastal Zone Management Actprovides the legal tools for ef-fective coastal resource protec-tion. Our 1979 Coastal Manage-ment Program, the documentthat the Act deems themanagement plan for theStates coastal zone, providesthe policies and management

(Continued from page 1)

decided to enter the settlementagreement over our protests,there was nothing we could do.

As a result of this settle-ment, the OCRM freshwater wet-land regulation program and theentire Coastal Management Pro-gram remain under a cloud oflegal uncertainty.

In the months since thissettlement, we have receivedassurances from OCRM officialsthat the agency will vigorouslyassert its jurisdiction over fresh-water wetlands, and enforce theCoastal Management Programpolicies. However, we hear con-stantly from OCRM staff mem-bers who obviously have notgotten the message. These staffmembers tell us that the agencyhas to tread lightly in regulatingfreshwater wetlands, and thestatements they make about thevalidity of the Coastal Manage-ment Program contradict whatwe hear from top OCRM offi-cials.

In response to our com-

plaints, the agency leadershiphas promised to make improvedefforts to apply and enforce therules, but we continue to findmore examples of the agencysfailure to follow its own freshwa-ter wetlands rules.

We are left to wonderwhether the top agency officialsdo not believe the things they

(Continued on page 4)

essary. We are thankful that insome of our cases, the agencymade the right decisions andwe are helping the agency de-fend appeals of those deci-sions.

Two areas of agencydrift, confusion and inconsis-tency relate to the agencysfreshwater wetland regulationsand the legal status of theCoastal Management Program.

In a case highlighted inlast Decembers Mountains &Marshes, OCRM was sued by aBeaufort development group.The suit challenged OCRMsauthority to regulate isolatedfreshwater wetlands and askedthe court to declare theCoastal Management Programunenforceable. The agencysattorneys vigorously defendedthe case, and we intervened onbehalf of several groups. Afterwe lost the case at the statecircuit court level, OCRM andour clients appealed. We askedthe SC Supreme Court to takethe case immediately, and tosuspend the circuit court orderuntil the appeal was decided,

and both of these requestswere granted. SCELP andOCRMs attorneys filed astrong brief supporting theagencys wetland regulationauthority and the validity ofthe Program.

Then the agencyflinched. OCRM entered intodiscussions with the Beaufortdevelopment group which ledto a settlement agreement.

The agreement allowed theunprecedented filling of over 7acres of wetlands, and OCRM

joined with the developer inseeking dismissal of the ap-peal. SCELP argued against thesettlement vigorously. Wewanted a judicial answer to theissues raised, and we felt thatour strong brief was a winningone. In the end, after OCRM

tools for carrying out the Actsdirectives. The initial criticalarea regulations set out clearrules for protection of coastal

resources, while still balancingthe need for economic develop-ment.

However, it now seems tome that our coastal manage-ment system has gone terriblyawry.

In recent years, we haveseen trends that indicate to usthat the agency has lost its fo-cus, lost its sense of mission,and is now characterized bypoor judgment, inconsistency,and day-to-day confusion.

Most of our case docketreflects what we believe are mis-takes made by the agency in itspermitting and certification de-cisions. We spend a lot of ourtime trying to work out prob-lems to avoid appeals, but intoo many cases appeals are nec-

Our annual photo of Jimmy andhis daughter, Leigh, now 9.

. . . our

coastalmanagement

systemhas gone

terribly awry.


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A suit brought by several Daufuskie Islandproperty owners, challenging the SC BeachfrontManagement Act, will go to trial in early 2004.

The suit concerns several lots at thesouthern tip of Daufuskie Island, the statessouthern-most barrier island. In the mid-1990s,

several large houses were built on some of thelots, and the houses in recent years have beenthreatened by erosion.

The owners wanted a permit to build aseawall to protect their property. Since 1988, theBeachfront Management Act has prohibited con-struction of new beach seawalls. The Act is basedon the 1987 Report of the Blue Ribbon Beach-front Committee, whose studies concluded thatseawalls lead to losses of public beach.

The suit challenges the validity of the Acton several grounds. It claims that if the ownersare not allowed to construct a seawall, erosion

will cause severe damage to their property andpossible loss of their houses. If this happens,they allege that the State, by denying them a sea-wall, will have taken their property in violationof the Fifth Amendment to the US Constitution.They also allege that they have been denied equalprotection of the law, and additional claims.

In 2002, a state court judge made a pre-liminary ruling allowing the construction of a sea-wall. The owners have posted a bond to securethe costs of removal of the seawall in the eventthey ultimately lose their case.

The South Carolina Coastal ConservationLeague has intervened in the case with SCELP rep-resentation. The Leagues involvement will pro-tect the interests of Sierra Club, SC Wildlife Fed-eration, and the League of Women Voters ofGeorgetown County, who were denied interven-tion.

Beaches are public property below the

Daufuskie Going to Trial

DeBordieu Project Threatens North Inlet

DeBordieu Colony has applied for a permitto renourish its beach with sand mined from the

sand bar at the mouth of pristine North Inlet.SCELP is working with several groups to

oppose this project and protect North Inlet. TheNorth Inlet estuary is the site of the University ofSouth Carolinas renowned marine science labora-tory and long-term ecological research. It is also aprized local recreation area and a part of theNorth Inlet-Winyah Bay National Estuarine Re-search Reserve.

Smiley Back Before Supreme Court

SCELP has filed its initial appeal brief inthe case of Smiley vs. DHEC/OCRM. The appealseeks to overturn an ALJs ruling that Smiley, adaily user of the Isle of Palms beach, has nostanding to appeal a permit that allows removalof up to 25,000 cubic yards of public beach sandper month to protect private property. We hopeto get a ruling before the end of 2004.

mean high water mark, owned by the State andheld in trust for the use and benefit of all of thepeople. The Beachfront Management Act isfounded upon the fundamental legal principlethat a property owner (in this case, the State)need not allow its adjoining property owner (thelot and house owners) to construct a seawall thatwill ultimately cause damage to or loss of the

public property.If the property owners win their case, theBeachfront Management Act could lose its mosteffective tools for protecting the states publicbeaches.

SCELP will vigorously defend this case andrepresent the public interest in protection ofpublic beaches.

This photograph by Chip Smith, photographer/writer/naturalist.


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have told us about agency pol-icy, or they have made insuffi-cient efforts to inform andmonitor the rest of the staffabout agency authority and ap-plication of freshwater wetlandspolicy.

This lack of agency cohe-siveness suggests that OCRMdoes not have an adequate pro-gram of keeping its staff in-formed and educated as toagency regulations, policies andpositions. We find ourselvesconstantly talking to agencystaff members who do not seemto know or understand the rulesthey are supposed to be apply-ing and enforcing.

At least some of theproblems are caused by thebudget crunch that has beengoing on for several years.OCRM has fewer staff membersand a greater work load thanever before.

The staff problems areparticularly acute for OCRMslegal office. For at least tenyears, the OCRM legal office hasbeen staffed by two attorneys

and a paralegal. Since March of2002, OCRM has operated with

just one attorney, and now itsparalegal devotes only half ofher time to legal work. Theagencys legal docket is moreactive and crowded than ever.

It is not exactly an idealsituation to have an agency staffthat seems unfamiliar with thelaws and regulations they aresupposed to apply and enforce,

and an agency attorney who isforced to run from hearing tohearing with little or no time forplanning or designing agencylegal strategies. There is plainlyno time for the staff attorney toprovide training to the staff, orto help the staff with day-to-dayregulatory interpretations.

This situation has de-

(Continued from page 2) prived the agency of a coher-ent and unified legal presence.The agencys attorney defendseach agency staff decision,with little apparent thoughtabout how the legal argumentswill affect long-term agencypolicy. Testimony from onecase causes problems in oth-

ers. For example, staff testi-mony in an appeal challenginga recent community dock per-mit convinced a judge thatOCRM has no enforceable stan-dards for these docks. Later,when the agency tried to limit

sion, the staff was well aware ofthe controversial nature of thecase, yet issued a permit thatwas guaranteed to be appealed,without making any effort tobring both sides together in anattempt to resolve the case upfront.

In the Spring of 2004, wewill be completing our initialwork on SCELPs comprehensiveassessment of the South Caro-lina coastal management pro-gram. We will issue a report thatwill provide more detail andmore recommendations than wehave room for in this newsletter.We will use this report in ourcontinuing effort to obtain qual-ity management for this states

coastal zone.

We have heard that whenCoastal Council was abolishedin 1994, and the coastal pro-gram given to DHEC, it was be-cause of the programs earlyeffectiveness. Coastal Councilwas a special agency, with keysupport from Jim Waddell, apowerful State Senator. It wasrun by Dr. Wayne Beam, who atthat time seemed to have a vi-sion for coastal management.Now Sen. Waddell and theCoastal Council are deceased,and Dr. Beam has gone to workfor the dark side as a consult-ant and lobbyist who seems toalways push the limits on behalfof developers. Former agencyattorneys and hearing officersare now constantly beating theagency in court and before Ad-ministrative Law Judges.

It is obvious to me thatthose who wanted to rein inCoastal Council have succeededbeyond their dreams. It will takea lot of hard work to protectcoastal resources with thisweakened coastal program, andeven more hard work to bringthis program back to effective-ness.

an expansion of the samecommunity dock, the judgereminded the staff of the priorstance, and seemed willing toallow nearly unlimited expan-sion.

Recent meetings of theCouncil on Coastal Futures, agroup charged with responsi-bility to review OCRMs opera-tion and make recommenda-tions for the future, show thatthe OCRM staff has some goodideas about how to improveagency operations. But on a

day to day basis, we see littleevidence that any of theseideas are ever implemented.

For example, in Councilmeetings, the OCRM staff hasproposed a system of informalmediation that could occurearly in the permitting process,particularly when controversialcases are identified early. Butin a recent key permit deci-

. . . the agency has

lost its focus,lost its

sense of mission,and is now characterized bypoor judgment,inconsistency,

andday-to-day

confusion.


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As we gear up for thenext legislative session, onceagain we are facing substantialchallenges to citizens rights toenforce environmental protec-tion laws.

The automatic stay pro-vision of the DHEC permitting

regulations, which allows citi-zens an appeal hearing on envi-ronmental permits before thelandscape is altered, is againunder attack. The automatic stayrule preserves the status quo toprevent environmental impactsfrom occurring before the chal-lenge to the permit can be heardand decided. It also protectsConstitutional due process

Proposed Legislation Would Cut Off Citizens Rights

After a U.S. Supreme Court decision inearly 2001 left an estimated 400,000 acres ofSouth Carolinas isolated freshwater wetlands un-protected under the federal Clean Water Act, theDepartment of Health and Environmental Control(DHEC) is finally taking action to set up a state

permitting program for these wetlands.Responding to a petition from conserva-

tion groups, DHEC proposes to exercise its exist-ing authority under the S.C. Pollution Control Actto establish a permitting program that would pro-vide state protection of these wetlands. Asdrafted by DHEC, new regulations would prohibitthe filling of isolated freshwater wetlands withouta permit from DHEC.

Outside of the coastal zone, DHEC cur-rently has no regulatory program in place to pro-tect isolated freshwater wetlands. Before 2001,sometimes the agency was able to regulate these

areas through a state certification of federal per-mits under Section 401 of the Clean Water Act.

Will South Carolina Protect Freshwater Wetlands?

Since the U.S. Supreme Court ruling that isolatedwetlands are not subject to federal jurisdiction,DHEC can no longer use this state certificationprogram to prevent alteration or destruction ofthese wetlands.

The DHEC board will hold a public hearing

on January 8, 2004 on the proposed regulations.We encourage anyone interested in wetlands pro-tection to attend and speak out at the public hear-ing.

Some development groups argue thatDHEC lacks legal authority to enact new wetlandsregulations without a new wetlands statute. Re-newed efforts to enact a state freshwater wet-lands statute will be moving forward during the2004 legislative session.

SCELP is working with a coalition of envi-ronmental groups to push for improvements inthe draft regulations, as well as for a strong wet-

lands statute. We will closely monitor any wet-lands bill introduced in the General Assembly.

rights by insuring that the ap-peal hearing is meaningful andbefore harm has occurred.

Last year, Representative Jim Harrison pushed a bill,H.4157, that would eliminatethe automatic stay rule. The billremains pending in the House

Judiciary Committee and Repre-sentative Harrison will continueseeking support for this bill.Senator John Land introduced asimilar bill, S.634, in the Senate.Both bills are backed by the S.C.Tourism Council, a developmentgroup, which will lobby hard forthis legislation. We also expectother legislative efforts to limitcitizens environmental rights.

If the automatic stay iseliminated, the fundamental fair-ness of the appeal hearingsprocess will be dramatically al-tered. Instead of having a rightto a meaningful hearing, a citi-zen will be forced to fight acostly legal battle to prevent en-

vironmental harm before evengetting to the appeal hearing.

SCELP would like tothank everyone who contactedtheir Senators and Representa-tives and asked them to opposethese bills. Unfortunately, weneed to continue to voice ouropposition to bills that wouldtake away citizens rights.


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South Carolina Environmental Law Project, Inc.SCELP is a 501c3 tax exempt non-profit corporation. Our mission is 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. SCELPs cases have saved wetlands, improved water quality, reduced hazardous waste risks, protected

other natural resources, and helped enforce penalties against those who have violated our environmental laws. SCELPs clients have

included local state and national groups. We also provide continuing legal advice to concerned citizens and promote environmental law

education.

James S. (Jimmy) Chandler, Jr., is President and General Counsel of SCELP. Staff members are Amy Armstrong, Equal Justice Works

Fellow and staff attorney, and Kathy Taylor, Assistant to the President. Our Board members are:

Jimmy Chandler , Pawleys Island ~ Frances Close, Columbia ~ William S. Duncan, Murrells Inlet

Daryl Hawkins, Columbia ~ Trish Jerman, Columbia ~ Linda Ketron, Pawleys Island

Bill Marscher, Hilton Head Island ~ Virginia Prevost, McClellanville ~ T. S. (Sandy) Stern, Jr., Greenville

Office Address:

430 Highmarket Street

Georgetown, SC 29440

Telephone: (843) 527-0078

FAX: (843) 527-0540

E-Mail: [email protected]

Web site: www.scelp.org

Mailing Address:

Post Office Box 1380

Pawleys Island, SC 29585

Other Updates . . .

Cherry Grove Marsh Case

Moving Slowly: A suit filedby a North Myrtle Beach fam-ily, claiming ownership of saltmarshes and creeks in theCherry Grove area of NorthMyrtle Beach, is slowly work-ing its way toward trial inHorry County state court.

The suit, filed in thespring of 2003, seeks a dec-laration that the Perrone fam-ily owns a large area ofmarsh and creeks, and thatthe state has no right toregulate this area under the

Coastal Zone ManagementAct. In April 2003, the stateAttorney Generals office andthe state Office of Ocean andCoastal Resource Manage-ment (OCRM) agreed to aConsent Order that hashalted all state permitting inthe area until the case is re-solved.

SCELP has filed mo-tions to intervene on behalf

of the SC Coastal Conserva-tion League, Sierra Club, andlocal property owners, but sofar no hearing on the motionhas been held. The City of

North Myrtle Beach has alsofiled a motion to intervene.SCELP and the City are seek-ing to defend the publics in-terest in these marshes andcreeks, and to defeat the Per-rones claims.

SCELP is concerned

that neither OCRM nor theAttorney Generals office isadequately defending thepublics rights in the claimedmarshes. Our intervention isintended to allow us to en-sure that these rights are vig-orously defended.

Myrtle Trace Case Going

Back to DHEC Board: A

state circuit judge has re-manded our Myrtle Tracecase back to the DHEC Board.In 2002, the DHEC Board hadoverturned a permit for de-velopment of an 8 acre tractpreviously set aside for pres-ervation as mitigation for adevelopments wetlands im-pacts. The Board said thatonce a site had been setaside for mitigation, only ex-

traordinary circumstancescould justify a change in thepropertys status. However,the original Board ordermade findings of fact that,

under a later ruling of the SCSupreme Court, exceeded theBoards authority. The Boardwill now take a second lookto determine whether its ear-lier ruling can stand withoutthe additional findings.

McQueen Taking CaseFinally Over: The USSupreme Court has ended thesaga of Sam McQueen, whoselots at Cherry Grove washedaway by natural water forcesand reverted to salt marsh.By refusing to hear anotherappeal, the court upheld theSC Supreme Courts rulingthat the State is not liable for

McQueens lost property. Thecase is a victory for coastalwetlands protection underthe Public Trust Doctrine.

SCELP Staff, Amy Armstrong andKathy Taylor, take time out to smilefor the camera.

Documents

December 2003 South Carolina Environmental Law Project Newsletter