State struggles with wetlands regulation

Resource agency presses issue in appeal

Two years after the U.S. Supreme Court said the states or their courts must regulate freshwater wetlands, South Carolina regulators are stuck in the muck, swamped by lawsuits.

Developers are pushing to fill more marginal land. Attempts to pass a statute or a specific set of wetlands regulations in the Legislature get mired in committees or subcommittees, over controversies about how strict the law should be. Meanwhile, state agencies are making permit decisions based on management policies, then giving ground by settling disputes when challenged in court.

S.C. Ocean and Coastal Resource

Mic Smith
The Post and Courier

Randy Cruz of North Carolina helps build a box culvert on S.C. Highway 165 on Tuesday. The box culvert will allow water to flow under the highway.

Management dug in last year and denied a permit to a development partnership called Spectre. The partnership wanted to fill in 37 wetland acres off U.S. Highway 17 in Georgetown County, and that much acreage was just too much for OCRM. Spectre sued and won an S.C. Administrative Law Judge ruling saying, in part, a management policy is just that, policy not regulation.

Now the cat is out of the bag.

If the ruling stands up on appeal, it could hamstring OCRM's ability to regulate coastal development.

"The day the Spectre order (ruling) went out, every developer and every lawyer in the state knew about it. The message got out, 'Hey, it's open season on wetlands,' " said attorney Jimmy Chandler, of the South Carolina Environmental Law Project.

"Government needs to act through laws that are clear and understood by everybody," said Mount Pleasant attorney Ellison Smith, who represents Spectre. "I would rather be on my side than their side," he said about the appeal.

On the heels of the court decision, two state legislators introduced, without a committee vote, a resolution calling for environmental regulators to make policy decisions that are "relevant and appropriate." Environmental advocates feared the bill, if passed, would do the same damage as the lawsuit — clear the way for wetlands development.

OCRM has gone from managing the marshlands to extending its reach inland, said bill sponsor Rep. Billy Witherspoon, R-Conway.

"If things are just done on policy without oversight from the Legislature, you can create any kind of chaos that you want — not based on science, not on law, but emotion or opinion," said sponsor Rep. Dwight Loftis, R-Greenville. "They (the agencies) need to hear, and the public needs to hear, the problems that exist with their irresponsibility with moving forward with promulgating the regulations."

Ironically enough, the S.C. House sent the bill to committee.

Freshwater wetlands are swamps or pools not considered part of a stream flow. South Carolina has about 300,000 acres of them. They are habitat for rare plant species and considered important natural storm-runoff filters to maintain water quality. In the late 1990s, they became a wrestling mat in the ongoing property-rights battle between development and environmental interests across the nation, leading to the Supreme Court decision.

In the Lowcountry, the issue hit a flash point in 2000 when a Berkeley County partnership sued to build a race track on 60 acres including wetlands near Beidler Forest. Real estate and environmental groups jumped into the fight that went to the S.C. Supreme Court. The developers eventually won.

In 2002, a Beaufort County partnership sued after being denied a permit to fill in 15 acres of wetlands. OCRM appealed that case as far as the state Supreme Court. The developer withdrew the suit after a settlement was reached allowing some wetlands to be filled.

Chandler, the environmental attorney, told OCRM then if they made a deal they would give every developer leeway to sue and that could "take your whole program down. Gradually, developers have been able to fill more and more wetlands as a result," he said.

The wetlands rules are too broad and have stymied development, said Lewis Gossett, chairman of the newly formed Citizens for Sound Conservation and president the S.C. Manufacturers Alliance.

"They stop development for stopping-development's sake without determining whether we truly are doing it harm. When we start talking about isolated water on your property, you're going way beyond protecting the environment. I wouldn't be in favor of abandoning all regulation. There needs to be balance."

All the players in this duel agree that permit decisions are made too slowly and arbitrarily, and the regulating agencies tell them they are too understaffed to keep up.

"What they need to do is what they should have done a long time ago. Go to the General Assembly and have regulations or a statute passed," said attorney Smith, who also represented the Beaufort County developers.

"There has been a consensus in the state there needs to be something in place," said Rheta Geddings, special assistant for OCRM external affairs. "As in most things, the devil has been in the details." The good thing that might come out of the current controversies is that maybe now something can be put into place, she said.

Meanwhile, despite the risks in litigating the Spectre dispute any further, this time OCRM is staying put in court, Geddings said. "The position was and still is that this is an important case. This is a significant amount of wetlands and staff made the right decision."

Reach Bo Petersen at 745-5852 or bpetersen@postandcourier.com. Reach Yvonne Wenger at ywenger@postandcourier.com or 803-799-9051.