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Environment: Supreme Court rules against Litchfield wetlands fill

By Charles Swenson
Coastal Observer

The lot is small, the impacts are large, say attorneys who argued a case over whether Smith Land Co. needed a state permit before filling wetlands in Litchfield.

The state Supreme Court ruled this week that the state has jurisdiction over the wetlands, which are known as “isolated wetlands” because they aren’t adjacent to navigable waters. That’s an important precedent, said Amy Armstrong, lead attorney for the S.C. Environmental Law Project, which represented the Georgetown County League of Women Voters in the case.

The court also ruled that the citizens group has standing to bring the case. That may have even more impact around the state, said David DuRant, attorney for Smith Land Co.

“It’s pretty significant that they upheld the right of individuals and entities to sue to enforce a state regulation,” he said, adding that he doesn’t believe it will be a positive impact.

The 3-2 Supreme Court decision overturned a Circuit Court ruling.

The wetlands are part of a Carolina bay in the Cypress Point subdivision in Litchfield. The bay is also adjacent to the Stables Park that Georgetown County is developing. The lot at the center of the case is a third of an acre, and more than half of it is wetlands.

In 2007, Smith Land Co. notified the Army Corps of Engineers and the state Department of Health and Environmental Control of its plan to fill the wetlands. It didn’t hear from the state agency, so it filled the lot.

Sue Myers, a League member, is a neighbor. She brought the filling to the attention of the Environmental Law Project. Armstrong said she and Jimmy Chandler, the founder of the law project, had been looking for a case that would affirm the state jurisdiction over isolated wetlands in the wake of a U.S. Supreme Court ruling that the Corps of Engineers lacks jurisdiction.

DuRant said since the 2001 federal ruling everyone assumed the state didn’t have jurisdiction. He introduced testimony that DHEC wanted that authority, but couldn’t get it approved by the state legislature.

“They basically back-doored it,” he said. “They got jurisdiction by judicial review.”The U.S. ruling had no affect on the state, and Smith Land Co. “was required to obtain a DHEC permit” under the state Pollution Control Act, the majority of the state Supreme Court said.

DuRant calls that a Catch-22. “DHEC doesn’t even have a permitting process for isolated wetlands,” he said. “At this point, what do you do?”

That’s a question Armstrong is also considering.

The state Supreme Court didn’t include a remedy in its decision. Armstrong said she may have to petition the courts to have Smith Land Co. restore the wetlands.

“I wish the court would have put that in their order,” she said. “I’ve got to figure out what we’re going to do about getting the fill pulled out.”

Of course, Smith Land Co. can ask DHEC for a permit application, DuRant said. He and Armstrong agree that this week’s ruling doesn’t deal with the merits of issuing a permit.

Armstrong added that the League of Women Voters would challenge an after-the-fact permit.

Two justices dissented in part from the majority, saying they agreed that DHEC has jurisdiction and that a permit is required, but disagreed that the League of Women Voters has standing to bring suit.

“This particular lot isn’t that significant, but it’s the precedent set by the case,” Armstrong said.

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