Via the South Carolina Environmental Law Project (SCELP): SCELP.org
Get the Press Release here.
The South Carolina Environmental Law Project (SCELP) is a non-profit public interest law firm, dedicated to protection of the South Carolina environment. We are the only such organization that focuses exclusively on South Carolina.
SCELP’s goal is to protect South Carolina’s natural resources and environment through forceful legal advocacy. SCELP provides concerned citizens and environmental groups the services of attorneys with broad experience in environmental law, and we handle a wide variety of environmental cases throughout the state.
One such case involves our isolated wetlands, and a private citizens’ group’s right to argue for preservation.
For ten years the environmental community has fought for state-wide protections for “isolated wetlands,” wetlands that are not adjacent or connected to navigable waters. This fight was necessitated by a U.S. Supreme Court decision in 2001 which eliminated federal protection for between 300,000 and 600,000 acres of isolated wetlands in South Carolina. Since that time, the environmental community has made attempts at legislative fixes to ensure protection. SCELP has always taken the position that such wetlands are protected under our state’s Pollution Control Act, but no court had ever held as such.
In 2007, members of the Georgetown County League of Women Voters contacted SCELP and informed us of clearing and filling occurring on a small lot in Pawleys Island. The lot contained a pond and wetland that are part of one of the unique wetland bodies referred to as a Carolina Bay. Smith Land Company cleared the lot, brought in truckloads of dirt, and filled the wetlands and pond without receiving a permit from DHEC. The wetlands on the property were delineated as “isolated” by the U.S. Army Corps of Engineers, meaning that no federal Clean Water Act permit is required. On behalf of the League of Women Voters, SCELP challenged the action arguing that the Pollution Control Act requires a permit before filling the isolated wetlands, which are waters of the State. Smith Land Company argued, and the circuit court agreed, that DHEC similarly did not have jurisdiction to regulate isolated wetlands. The circuit court also held that the citizens groups did not have a right to bring an action under the Pollution Control Act. SCELP appealed that decision.
On July 11, 2011, the South Carolina Supreme Court issued a landmark opinion declaring that S.C. law requires protection of isolated wetlands. The Court first noted that while the U.S. Supreme Court has held that isolated wetlands are not covered under the federal Clean Water Act, this has no impact on DHEC’s ability to regulate those wetlands. The Court found that DHEC in fact has jurisdiction to regulate isolated wetlands based on the clear language in the Pollution Control Act. Given that DHEC has jurisdiction over the isolated wetlands, the Court next held that Smith Land Company was required to get a permit from DHEC before filling the wetlands. Smith Land Company violated South Carolina law by filling isolated wetlands without a valid state permit. Finally, the Court held that the Pollution Control Act provides a private right of action. In other words, private citizens and groups can sue to enforce the provisions of the Act.
In sum, the Supreme Court’s order provides important protections to our State’s ecologically diverse and valuable “isolated” wetlands. Carolina Bays are only one example of the unique ecosystems that can be found in such wetlands. Prior to filling in any isolated wetlands in the State, a Pollution Control Act permit is now required. The Court’s order also struck down what would have been a significant obstacle to those citizens seeking environmental accountability in this State. The Supreme Court’s opinion leaves no doubt that the Pollution Control Act opens the door for private citizens to enforce its terms. SCELP’s Amy Armstrong said the case is a “landmark decision establishing protections for isolated wetlands throughout the State, and mandating that a State permit be obtained prior to filling any of our State’s unique and essential wetland resources.”
Please visit SCELP.org to learn more about this and other cases involving protection of our beautiful coastal environments.
June 1, 2012 – Important Update to Supreme Court Isolated Wetlands Ruling
Legislators are poised to derail a 2011 S.C. Supreme Court decision that gave extra protection to wetlands and made it easier for the public to sue alleged polluters under state law.
A “compromise bill,” approved Wednesday by the Senate, preserves a handful of existing lawsuits by citizens’ groups, including one against dredging the port of Savannah and another over discharges of toxic arsenic into the Wateree River near Columbia.
But the legislation won’t allow future citizens’ lawsuits for violation of the state’s pollution control law, nor will it require the S.C. Department of Health and Environmental Control to establish a permitting program for potentially hundreds of thousands of acres of isolated wetlands not now protected by federal law.