Mountains & Marshes

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

Summer/ Fall 2008

A Call to Arms
SCELP Fights to Overturn Ruling Threatening Loss of Isolated Wetlands

A developer’s relentless attempt to do away with protections for South Carolina’s coastal isolated wet-
lands has SCELP up in arms — and we’re 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 state’s coastal zone. The Coastal Management Program
gives protection to these special resources. If the Coastal Management Program (CMP) is ruled to be invalid,
existing CMP protections for coastal resources outside the “critical areas” (salt waters, salt water tidelands,
beaches 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 developer’s 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 near
Murrells 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 Spectre’s
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 staff’s denial. Wetlands that Spectre, LLC, wants to fill for a commercial development
Spectre then appealed the DHEC decision to the Because they have both land and aquatic characteristics, wetlands are some of
the most diverse ecosystems on earth. About one-fourth of the plants, one-half
Administrative Law Court. On February 20, 2008, of the fishes, two-thirds of the birds, and three-fourths of the amphibians listed
Administrative Law Judge John D. McLeod issued as threatened or endangered in the United States are associated with wetlands.
an order reversing the DHEC decision and ruling
that “Spectre is entitled to have its storm water permit (1) the Coastal Management Program cannot be utilized by
deemed approved.” DHEC because it was not promulgated as a regulation under
Almost immediately after this ruling, Spectre moved the procedures set forth in the South Carolina Administrative
forward with development plans and clearcut the entire 60 Procedures Act (“APA”); and (2) the Coastal Management Pro-
acre tract. SCELP filed a motion asking the ALJ to issue a gram does not apply to isolated freshwater wetlands that are
follow-up order that “stayed” the effect of his initial ruling outside the federal jurisdiction of the Clean Water Act. But we
until the appeal is resolved. Fortunately the ALJ granted our believe that the Judge got it wrong on both points.
motion and ordered the developer to stop any further work The CMP is a document prepared by mandate of the 1977
on the project, and the wetlands have not been filled. state Coastal Zone Management Act (“the 1977 Act”), which
Judge McLeod based his ruling on his conclusions that
(Continued on page 2)

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 state’s 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 1380
Pawleys Island, SC 29585
Telephone: (843) 527-0078
FAX: (843) 527-0540
E-mail: Jordan@scelp.org
Website: www.scelp.org
Quick SCELP Case Updates:
· Chem-Nuclear: Our appeal of the
permit for this radioactive waste land-
fill is now pending in the SC Supreme
Court. We expect a decision early in
2009.
· Highway 601-Congaree Na-
tional Park: The Administrative Law
Court dismissed our appeal of the
DHEC permit, saying that DHEC’s fail-
ure to make a timely decision pre-
cludes further review. We’ve appealed
to the SC Court of Appeals. We expect
a hearing on our Federal Court suit
soon.
(Continued from page 1)
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 DHEC’s 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 State’s 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
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, South
Carolina, and North Carolina. (Wetlands, 2nd edition, Van Nostrand and Reinholdt, 1993.)
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 Carolina’s 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,
natural, cultural and historical resources, and a set of
“policies.”
The CMP’s “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 Spectre’s, 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.”
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.
The Administrative Law Judge (ALJ), in ruling that
the CMP doesn’t 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 be
demonstrated, 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 site’s wetlands consist of
swamp and Savannah wetlands, not the types of wetlands
generally designated as “marsh.”
In the discussion portions of the CMP, the description
of the coast’s 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 ALJ’s 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 ALJ’s ruling, deeming the Spectre permit granted
without a coastal zone consistency review, would mean that
the mandate of the 1977 Act – consistency review of all
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 statute’s 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 doesn’t happen.
SCELP cases in which the
Coastal Management Program
has been applied and enforced:
· 1988: the SC Supreme Court reversed the
Coastal Council’s decision to certify a permit to
dredge a canal through freshwater wetlands on
the 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 are
entitled to constitutional due process protections:
notice and opportunity for hearing.
· 1998: the SC Court of Appeals overturned
the certification of a permit to fill wetlands for
development, citing violations of CMP policies.
 SCELP’s Newest Cases: 
  Over the past few months, SCELP has undertaken a number of new cases. Among the most notable are: 
  · Cliffs Communities:  SCELP represents Upstate  iting dredging in Colony Pointe canal and other dead‐
Forever, Sierra Club, Save Our Saluda, South Carolina  end finger canals within Debordieu. Debordieu is adja‐
Native Plant Society, South Carolina Wildlife Federation,  cent to the North Inlet/Winyah Bay National Estuarine 
and Trout Unlimited in an appeal of permits for the pip‐ Research Reserve (“NERR”) in Georgetown County. 
ing, impounding and bridging of over 1,100 linear feet    · Deerfield Plantation:  SCELP represents a Deer‐
of the North Saluda River and its tributaries for the con‐ field Property Owners Association an appeal of permits 
struction of a golf course. Our appeal will be heard by 
the DHEC Board on July 11.   
  · Norris Turkey Farm:  SCELP represents the Ches‐
terfield 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.   
  · Wedgefield dredging:  DHEC approved Wedge‐
field Plantation Association’s plan to re‐dredge the man‐
made canals within Wedgefield and to place the 
dredged materials in 12.8 acres of vegetated freshwater 
According to Deerfield developer, this is not a wetland.
wetlands adjacent to the Black River. The proposal is 
nearly identical to one that was denied by DHEC in  for development proposed for the golf course which the 
2004. SCELP is pursuing an appeal on behalf of the S.C.  Deerfield residences abut. Our appeal seeks to protect 
Coastal Conservation League and the League of Women  wetlands which are part of a stormwater drainage sys‐
Voters of Georgetown (LWVG).  tem that serves the neighborhood.  Despite the presence 
  · Colony Pointe dredging:  Representing the LWVG  of substantial wetland areas on the property, the appli‐
and the Sierra Club, SCELP is fighting to uphold a prece‐ cation filed by the developer claims that there are no 
dent established in a 1998 case that SCELP won prohib‐ wetlands on the site.  

SCELP’s Saves the Day by Hosting the Pawleys Pavilion Reunion

Just 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. SCELP’s 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-
n’t have done it without the financial support of our sponsors and the hard work of our volunteers. THANK YOU!