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Environment: Group plans federal suit over wetlands fill
By Charles Swenson
A citizens group says it is prepared to bring a federal lawsuit to force the owner of property on Highway 17 in Litchfield to remove fill dirt placed in wetlands on the property despite the fact that the work received state and federal permits.
The Georgetown County League of Women Voters sent notice to the Army Corps of Engineers and the Environmental Protection Agency last month that it will bring suit under the federal Clean Water Act. The group is represented by the S.C. Environmental Law Project.
The work was done last year at the site on the southwest corner of Highway 17 and Ford Road. The owner, Tag Ventures of Charlotte, said it planned to build two fast food restaurants on the site. The property is 2.7 acres with 1.25 acres of wetlands, according to information contained in permit applications. It was bought in 2008.
Henry Atkins, a partner in Tag Ventures, was “quite surprised,” to get notice of the proposed suit, according to Stan Barnett, an attorney in Mount Pleasant who represents Tag Ventures.
“The notice makes a couple of claims I don’t think have merit,” Barnett said.
The corps issued a permit in 2008 for the fill under rules that allow up to half an acre of wetlands to be filled for commercial development provided they aren’t tidal wetlands.
Attorneys from the environmental law project started gathering information about the permit last year after hearing complaints about the wetlands fill. Although the property is on the west side of Highway 17, it drains into Clubhouse Creek behind Litchfield Beach.
Michael Corley, staff attorney with the law project, said he initially believed Tag Ventures was allowed to fill three-quarters of an acre of wetlands. The corps said that was a clerical error.
But even at half an acre the fill doesn’t meet the permit requirements, Corley says because Tag Ventures doesn’t plan to build on the property and because the wetlands that are filled are adjacent to tidal wetlands.
The issue is important, he said, because the wetlands that run along the west side of Highway 17 help control flooding along the highway and filter pollutants contained in stormwater runoff that flows into the saltwater creek.
“I went out there and walked the property,” Corley said. “It’s pretty clearly connected to the creek behind Litchfield and Pawleys.”
In his notice to the federal agencies he points out that the Tag Ventures permit application lists Clubhouse Creek as the nearest water body. The rule under which the permit was issued states it “does not authorize discharges into non-tidal wetlands adjacent to tidal waters.”
There is even a boat dock on Clubhouse Creek next to the point where it connects with the water flowing under Highway 17 from the wetlands, Corley said.
“If the wetlands on Tag’s property were any more adjacent to tidal waters, they would themselves become tidal waters,” he wrote in his notice to the agencies.
“The corps reached a different conclusion,” Barnett said. “We don’t think the corps made an error.”
In addition, Corley said that even before the fill was placed on the property Tag Ventures told Georgetown County that it was still looking for a “user” for the site.
The corps couldn’t know that Tag Ventures took all possible steps to minimize damage to the wetlands, as required by the federal rules, if there wasn’t an actual development plan for the property, Corley said.
The rule “does not authorize a permitee to fill wetlands on the hope that some future commercial development will materialize,” he wrote. “Tag purchased a property that was mostly wetlands, increased the buildable high ground on that property by 0.5 acres and is now trying to sell that property to the highest bidder.”
Barnett said the notice to the agencies is a procedural step that doesn’t require an answer from Tag Ventures. If it goes to court, “Tag Ventures is not without remedy if this is filed improvidently,” he said.
Taking action under the federal Clean Water Act is one avenue left open to environmental groups after the South Carolina legislature changed the law last year under which those groups could challenge state permits.
The law was changed after the state Supreme Court ruled that portions of a Carolina Bay in Litchfield were illegally filled by a developer, Smith Land Co. The local League of Women Voters chapter brought that suit.
A Circuit Court judge ruled that the league didn’t have standing to bring the suit and that the “isolated wetlands” in question didn’t fall under the state’s jurisdiction.
The Supreme Court overturned the lower court rulings and said Smith Land Co. filled the wetlands without the required state permit. The legislature then changed the law so that individuals can’t bring suit under the state pollution control act.
As a pending case, the league’s suit against Smith Land Co. wasn’t covered by the change, and the league went back to court last week, more than 18 months after the Supreme Court ruling, to get the fill removed.
While the state Department of Health and Environmental Control has the ability to enforce the rules against filling wetlands, Corley said, “our stronger case is to pursue enforcement through the courts.”
In a motion filed last week, he asked the court to issue a “writ of attachment” on the Smith Land Co. property, which is located between Litchfield Country Club and the county’s Stables Park complex.
Smith Land Co. has put the lot on the market “and is now attempting to pass its noncomplying property on to another (likely unsuspecting) party,” the motion states.
The writ will give notice to any prospective buyers and is “the least drastic remedy,” Corley said. The writ would be lifted when the fill is removed.
He asks the court to set a six month deadline on the removal before ordering the work done by a third party at Smith Land Co.’s expense.