Winter-Spring 2006-07 South Carolina Environmental Law Project Newsletter

8/9/2019 Winter-Spring 2006-07 South Carolina Environmental Law Project Newsletter

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Winter/Spring 2006-07

South Carolina Environmental Law Project ~ P. O. Box 1380 ~ Pawleys Island, SC 29585 ~ 843-527-0078

Mountains & Marshes

Protecting Congaree Swamp

ver the last six months, SCELP has beenfighting hard to protect CongareeSwamp and Congaree National Parkfrom the perpetuation of a mistake

made half a century ago. The SC Department ofTransportation (DOT) wants to enlarge andkeep in place milesof causeways

through the Conga-ree Swamp. A portionof the causeways lieswithin the boundariesof South Carolinasonly national park.On behalf of Friendsof Congaree Swamp,S. C. Wildlife Federa-tion and AudubonS. C., SCELP has filedadministrative ap-

peals and a lawsuit inFederal DistrictCourt, challenging permits for this project.

In July, the staff of the SC Department ofHealth and Environmental Control (DHEC) is-sued a proposed decision to allow the cause-ways and bridge replacements for the US High-way 601 crossing of the Congaree River and theadjacent swamp. DOT plans to fill more wet-lands in the swamp and to take only very minoraction toward correction of the damage done tothe swamp when the existing bridge/causewaysystem was built in the 1940s.

SCELP asked for a final review conferencebefore the DHEC Board. At its August meeting,the Board voted to suspend the proceeding toallow all parties to meet and seek a compro-mise. But DOT stood firm, resisting all of ourefforts to find a compromise solution.

The DHEC Board reconvened the review con-ference in September and voted to remand thecase back to the DHEC staff, directing them to

give more consideration to additional alterna-tives to DOTs plan.Just before the September Board meeting, the

deadline arrived for legal challenges to the En-vironmental Assessment prepared by DOT aspart of the Federal funding and permitting

process. Rather thanlose their rights,

SCELPs clients au-thorized the filing ofa lawsuit to challengethe adequacy of theEnvironmental As-sessment. Under theNational Environ-mental Policy Act(NEPA), federal agen-cies must prepare anEnvironmental ImpactStatement (EIS) be-

fore every major Fed-eral action signifi-

cantly affecting the human environment. In thiscase, DOT prepared a brief Environmental As-sessment concluding that the bridge/causewayproject would not have significant effects.

With the project located in part within theCongaree National Park, the National Park Ser-vice has argued strenuously against this projectand requested modifications to protect theswamp. The Environmental Assessment givesscant attention to the National Park, and erro-neously states that the project is consistentwith future plans for the Park.

Our suit asks the Federal Court to declare theEnvironmental Assessment to be in violation ofNEPA, and to order DOT to prepare a full EIS.

The DHEC Boards vote was put in writing inOctober. Within minutes after the Boards orderwas issued, the DHEC staff issued its new deci-sion on the permit. The new decision appearsto have been hastily made, and simply requires

(Continued on page 3)

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South Carolina Environmental Law Project 2

T he South Carolina Environmental Law Project will reach its 20th anniversary in 2007. As we planevents and special publications for this special year, Ive been giving a lot of thought to the ac-complishments, and frustrations, of our work.Im very proud of the role SCELP has played in ensuring that citizens and small groups have avoice in environmental legal proceedings in this state. Weve established key legal precedents securingconstitutional rights in permit proceedings. Im happy about wetlands weve helped save, hazardous

waste dumps and incinerators weve helped close down, waterquality problems weve solved.

But Im frustrated by having to re-fight battles we thoughtwe had won. In a recent hearing, I was terribly disappointedto hear a key state regulator admit that he has never readsome of the most important legal decisions interpreting theregulations he is supposed to implement. SCELP has beenaround long enough to see DHEC staff come and go. We wereonce astonished to hear a DHEC lawyer declare that theagency has no institutional memory, but we now know thather statement was absolutely true. Great legal victories won in1988, 1991, and 1997 are simply unknown to the new staffmembers now in charge

in this new century. Imalso frustrated by the

fact that even DHEC lawyers fail to explain these legal precedentsto agency staff, and are willing to defend agency decisions that flyin the face of these precedents.

I know that the work of SCELP will never be truly complete. Wemust carry on, inspired by our past successes and using the frus-trations as motivation. . . . . . . . . . . . . . .Jimmy Chandler

A Note from the Director

Jimmy with wife, Rebecca, and daughter, Leigh,standing amid the oak trees in their front yard. 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.

William S. Duncan

Daryl G. Hawkins

Trish Jerman

Bill Marscher

Robert Schofield, III

Wendy Zara

Staff

James S. Chandler, Jr., Director

Amy Armstrong, Staff Attorney

Kathy A. Taylor, Administrator

Office address430 Highmarket Street

Georgetown, SC 29440

Mailing address

P. O. Box 1380

Pawleys Island, SC 29585

Telephone: (843) 527-0078

FAX: (843) 527-0540

E-mail: [email protected]

Website: www.scelp.org

Case UpdatesPawleys Island Golf: On behalf of the Georgetown County

League of Women Voters, (GCLWV) we successfully negotiated anagreement ending an appeal of a coastal zone consistency certifi-cation authorizing a wetland fill for a golf course. The developerof the golf course agreed to reduce the wetland fill for the golfcourse and to put all remaining wetlands on the golf course underconservation easement, in exchange for the GCLWV dropping itschallenge to the certification.

Smiley/Park West: We have filed our briefs with the S.C. SupremeCourt in two cases seeking to protect citizens rights to challengepermitting decisions that would damage natural resources. We arehopeful that the high court will schedule oral arguments on thesecases in early 2007.

Myrtle Trace: This key wetlands mitigation case, which SCELP

won at the DHEC Board and in Circuit Court, is now on appeal tothe SC Court of Appeals.

Allendale Landfill: We thought this case had gone away, but arecent Ethics Commission advisory allowed a County Council mem-ber to vote on his sons landfill. Weve amended our suit to chal-lenge the county permit, and the case is now active in AllendaleCounty court.

Cherry Grove/Perrone: This case, involving a familys claim toown canals, creeks and marshes in North Myrtle Beach and also acontroversial dredging permit, has been on hold while the familyresolves an internal battle over an estate. The estate suit was re-cently tried and a decision is expected soon.


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the property. The agency admitted that the pri-vate marina itself served no overriding publicinterest or public need, but argued that the de-velopers agreement to conduct water monitor-ing for 3 years at a yet-to-be-built nearby public

boat ramp, and to eradicate Phragmites, a typeof marsh grass at the site, would somehowbenefit the public. Neither DHEC nor the devel-oper could explain how additional water qualitytesting would address any water quality prob-lems. The agency already conducts regular wa-

ter quality testing at the same site.Dr. Morris explained that the marina wouldremove several species of marsh grasses that allprovide public benefits by filtering water, andproviding nutrients and habitat facts whichOCRM staff also admitted. Both Dr. Morris andan agency witness said that there was no realreason to eradicate the Phragmitesat this par-ticular site, and that the Phragmitesprovidesthe same wetland functions and benefits asother salt marsh wetland vegetation.Judge McLeod has reserved making a decision

until all parties have had a chance to review thehearing transcript and submit proposed orders.

Protecting Critical Area Salt Marsh

Administrative Law Court hears appeal in Riverside CaseA t a hearing on November 21, 2006,SCELP presented evidence that stateregulators violated state regulationswhen they issued a permit allowing dredging ofvegetated critical area salt marsh. The devel-oper of Riverside, a proposed 119-home realestate development on 25 acres of filled-in wet-lands, applied to the South Carolina Departmentof Health and Environmental Control (DHEC) fora permit to dredge the salt marsh to create an84-slip marina basin. DHEC approved the ma-rina, plus almost 500 feet of additional commu-nity docks.

Administrative Law Judge John D. McLeodheard testimony from Dr. Jim Morris, Director of

USCs Baruch Institute, Garvey Winans of theGeorgetown County League of Women Voters,Nancy Cave of the Coastal Conservation League,the developer and DHEC staff.

DHEC staff witnesses admitted that theagency has not previously permitted dredgingof vegetated marsh for private developments.In the past, the agency has limited dredging ac-tivities in tidal waters, typically requiring a 10foot buffer from the marsh. But not this time.

The developer admitted that there were redflags when he purchased the property. The

tract is adjacent to the navigational channel forthe Port of Georgetown, and the legal setbacksprohibit marinas and docks within 125 feet ofthe channel boundary. That didnt deter the de-veloper from hiring a former top DHEC officialto push for this first-ever marsh dredging per-mit.

The regulations require that permits fordredging critical area meet an overriding publicneed, and there must be no feasible alternativesto the dredging. The developer admitted that itmight be feasible to develop the property with-

out a marina, but argued that dredging was nec-essary to achieve the highest and best use of

Riverside: the arrow above depicts the area where a de-veloper wants to dredge critical area salt marsh to createa marina basin.

Protecting Congaree Swamp (continued)

a small amount of additional bridging and ashorter causeway. The new decision is not sup-ported by any significant analysis.

DOT appealed both decisions by filing a re-quest for a contested case hearing in the Ad-

(Continued from page 1) ministrative Law Court (ALC). SCELP appealedthe new staff decision by filing another requestfor a review conference and a motion to inter-vene in the DOT appeal at the ALC.

The DHEC Board has agreed to hold a reviewconference at the Boards December meeting.


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South Carolina Environmental Law Project 6

Chem-Nuclear Case Moves to the Supreme Court

SCELPs appeal of the renewal licensefor the Chem-Nuclear radioactivewaste landfill in Barnwell has beendelayed by a lawsuit filed by Chem-Nuclearin the South Carolina Supreme Court.

After the November 2005 decision of theAdministrative Law Court (ALC) rejecting Si-erra Clubs challenge to thepermit, SCELP appealed thecase to the DHEC Board.The ALC had upheld thepermit despite finding seri-ous problems with radioac-tivity leaking from the land-

fill. We were scheduled toargue our appeal to theDHEC Board in July.

Chem-Nuclears lawsuitclaims that the 2006

amendments to the SC Administrative Proce-dures Act eliminates the DHEC Boards au-thority to hear our appeal. We believe Chem-Nuclear is wrong . The South Carolina Attor-

ney General agrees with our position and hasfiled a special brief in the case. The SupremeCourt will hear arguments in the case some-time in early 2007.

In the meanwhile, thehearing at the DHEC Boardis postponed, waste contin-ues to flow into the landfill,and Chem-Nuclear hasdone nothing to correct theleaking radioactive materi-

als. The leaking radioactivematerials flow into the Sa-vannah River, a source ofdrinking water for BeaufortCounty.

Despite leaking radioactive waste, the ALC upholds permit for landfill

Proposed Weakening of Nationwide Permits Stopped

SCELPs challenge toproposed weakened

state conditions ofwetlands Nationwide

permits has ended in suc-cess.

In 2005, the SC Depart-ment of Health and Environ-mental Control (DHEC) is-sued a public notice of itsintent to weaken state con-ditions on federal Nation-wide permits issued by the

Corps of Engineers. Nation-wide permits (NWPs) author-ize wetland alterations in ad-vance, so that individualwetland activities are notplaced on public notice andthere is no opportunity forpublic comment on the indi-vidual projects. Each state isallowed to review the Corps

nationwide permits and toplace special state condi-

tions on the use of thesepermits. In 2002, DHECplaced a number of specialstate conditions on nearly allof the 44 NWPs. The 2005proposal would have weak-ened conditions on 19 of theNWPs.

SCELP worked hard to con-vince DHEC that the pro-posed changes were illegal

and unwise. But in February2006, DHEC issued notice ofits final decision to makenearly all of the proposedchanges.

On behalf of the George-town County League ofWomen Voters, SCELP ap-pealed the decision to theAdministrative Law Court. As

SCELPs challenge to weakening state conditions ends in success

Chem-Nuclear: an unlined burial trench atChem-Nuclears radioactive waste landfill.

a result of the appeal, DHECwas unable to implement

the new conditions. AfterSCELP asked the Court togrant summary judgmentoverturning the changes dueto DHECs lack of legal au-thority, DHEC proposed anindefinite delay of thechanges.

The current NWPs arescheduled to expire in 2007,and the process of re-writing

the NWPs has begun. To re-solve our appeal, DHEC hasagreed, by consent order,that it will not seek to imple-ment the changes in theconditions of the 2002 NWPsand that nothing in the pro-posed changes will be con-sidered as a precedent in re-viewing the 2007 NWPs.


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On October 29th,SCELP Board mem-ber Bob Schofieldhosted a first-of-its-kind event for SCELP at

his beautiful plantation,Hasty Point, in George-town celebrating 19years of our work. Ourinitial estimates that60 people would attend rap-

idly proved conservative. Asthe RSVP list grew to 80, 90, andthen topped 100, we were thrilledto be making decisions about tentsizes, number of tables, chairs,

forks, and all matters pertainingto entertaining and feeding 120people!

SCELP staff put together aslide presentation highlighting 19

years of cases. Gillian Roy graciously intro-duced Jimmy but not before she explained toall in attendance why she and her husband,Peter, support SCELP and appealed to othersto follow their example. I know what Jimmywas thinking Gillians going to be a hardact to follow! But follow he did and,if the number of times his presenta-

tion was interrupted by ap-plause was any indication,Jimmys message and enthusi-astic passion for our workwas evident to all.

A huge thank you to Boband all of you who attended.We hope you enjoyed it as

much as we did!

SCELP Celebrates at Hasty Point Plantation


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Lake Murray Marina Challenged

After defeat before the DHEC Board, SCELP discusses next level of appeals with client groupsOn behalf of three groups, Lake Murray Watch, Lake Murray Coa-lition, and Lake Murray Association, Inc., SCELP, in August,filed a challenge to a proposed 84-slip marina on a small coveof Lake Murray near Chapin.Lighthouse Developments, Inc. proposes to develop 92 lots on 15acres of land, and wants to build the marina as an amenity for its de-

velopment. SCELPs clients believe that the marina is out of scale andout of character for the cove, will cause water quality problems, andwill set a bad precedent encouraging more intense waterfront develop-ment on the lake.

Our initial appeal was heard by the DHEC Board at its October meet-ing. The marina sparked a spirited debate among the Board members.A motion to overturn the staff decision and deny the permit, however,was defeated by a 3 to 2 vote. Then a motion to affirm the permit wasmade, and the motion passed by a 3 to 2 vote. Two Board memberswho voted to affirm the permit announced that they thought the pro-

ject was a bad one but that they felt bound to uphold the staff deci-sion. One Board member was absent, and the Board Chair votes onlyin case of a tie.

SCELP filed a motion asking the Board to reconsider its ruling, but the request was denied and awritten order was issued at the November Board meeting. SCELP is discussing the next level of ap-peals with its client groups.

SCELP Fights to Protect Cypress Swamp

Wetlands case tests validity of South Carolinas Coastal Zone Management Plan

Adevelopers proposal to fill nearly 32acres of wetlands has set off anothermajor legal battle over the states abil-ity to regulate isolated wetlands.

After the South Carolina Department ofHealth and Environmental Control (DHEC) de-nied Spectre, LLCs request to fill 31.76 acres ofwetlands on a 62.93-acre tract of land nearMurrells Inlet, Spectre appealed. Spectre allegesthat the South Carolina Coastal ManagementProgram, which requires DHEC to protectcoastal wetlands from commercial develop-ment, is legally defective and unenforceable.

Spectre lost its first appeal at the DHEC Boardin August, and now has appealed to the Admin-istrative Law Court.

SCELP has intervened in the case to defendthe Coastal Management Program and the wet-lands, on behalf of state and local chapters ofthe League of Women Voters, the SC WildlifeFederation and the Coastal ConservationLeague.

The Coastal Management Program was writ-ten by the old Coastal Council in 1979, ap-

proved by joint resolution of the South CarolinaGeneral Assembly and signed by the Governor.The SC Coastal Zone Management Act, enactedin 1977, directed the preparation of the Pro-gram, and says that Upon review and approvalof the proposed management plan by the Gov-ernor and General Assembly, the proposed planshall become the final management plan for theStates coastal zone. The Program, enforced byDHEC since 1994, has been applied by the SCSupreme Court in several cases. Spectre, how-ever, argues that the Program is invalid becauseit was not promulgated as a regulation pursu-

ant to the requirements of the SC Administra-tive Procedures Act.A Beaufort County judge ruled in 2002 that

the Program is invalid. After that order was ap-pealed and temporarily set aside by the SC Su-preme Court, the developer pursuing that casewithdrew his challenge to the Program and thusthe issue remains unresolved. SCELP believesthat the Program was properly enacted and thatits validity will ultimately be upheld.

Lake Murray: the arrow depictsthe location of proposed marina.

Layout and design by Kathy Taylor. Printed on 100% post-consumer fiber.

Documents

Winter-Spring 2006-07 South Carolina Environmental Law Project Newsletter