Fight looms over Supreme Court wetlands decision

A patch of swampy land, tucked away at a country club south of Myrtle Beach, could ignite a fiery debate when lawmakers return Tuesday to Columbia for a new legislative session.

The small tract of isolated wetlands was the subject of a S.C. Supreme Court ruling last summer that said a development company needed a state permit to fill the soggy spot. The July 2011 decision created a buzz among land developers, because South Carolina regulators haven’t been requiring permits to fill isolated wetlands across the state.

Now, developers and environmentalists are preparing for battle. Up for debate is whether South Carolina should establish a statewide permitting program for isolated wetlands or if the Legislature should pass a law that limits the impact of the S.C. Supreme Court ruling.

The future of hundreds of thousands of acres of isolated wetlands, mostly between Columbia and the Atlantic Ocean, is at stake.

Unlike river swamps and salt marshes, isolated wetlands are not directly connected to streams and other waterways. These wetlands, many of which are dry for part of the year, soak up flood water and provide habitat for birds, frogs, turtles, bears and other species.

But they also get in the way of development projects.

David DuRant, a Grand Strand lawyer who lost the case in the state Supreme Court, said the court’s ruling means more than hassles for real estate developers. Average citizens, ranging from farmers to homeowners, also face more government red tape, he said.

The court ruling has “expanded government intervention across the state of South Carolina,’’ DuRant said. “We’re talking about an act that gives a state agency jurisdiction over a farmer in Walhalla who wants to fill a ditch. I don’t think that is going to be well-received.’’

Amy Armstrong, a Pawleys Island lawyer who won the Supreme Court case, disagreed. The ruling makes it easier to protect fragile wetlands, including rare Carolina Bays, she said. These wildlife-rich areas are unique to the Southeast coast and are found almost exclusively in the Carolinas and Georgia.

“All kinds of wildlife species use these areas for nesting and breeding, and for foraging,’’ Armstrong said, noting that filling and paving isolated wetlands creates flooding and polluted runoff that affects other property. “Down here on the coast, we get polluted runoff going into the ocean. When it’s polluted enough, the beaches are closed.”

South Carolina’s environmental agency has for years taken limited steps to protect isolated wetlands; it regulates some efforts to fill isolated wetlands in the eight counties touching the ocean. But Armstrong said the agency has never used its full authority under the law to require permits to fill isolated wetlands across the state. Conservationists, who will discuss the issue with state senators next week, say the S.C. Department of Health and Environmental Control should have begun to develop a permitting program after the July decision, but has not done so.

Draft legislation, however, is now being circulated to negate, or at least tone down, the potential effect of the Supreme Court decision. A bill is expected to be introduced soon.

Rep. Bill Hixon, a member of a House committee that likely would discuss a wetlands bill, said he doubts the committee would favor more wetlands regulation. Existing environmental rules already are too complicated and time-consuming for developers, he said.

“I love the environment, I love to hunt and I love to fish, but as far as these conservation groups or tree huggers, they want to stop any development,’’ Hixon, R-Aiken, said.

About 20 percent of South Carolina’s landscape contains wetlands, one of the highest percentages in the Southeast. Of the more than 4 million acres of wetlands, an estimated 300,000 to 500,000 acres are isolated.

Unlike salt marshes and river swamps, isolated freshwater wetlands have not been regulated by the federal government since a 2001 U.S. Supreme Court ruling chilled that authority. In South Carolina, thousands of acres of isolated bogs have been declared outside federal jurisdiction. (To fill other types of wetlands, such as swamps or tidal marshes, people need permits from the U.S. Army Corps of Engineers and DHEC.)

So the 2001 U.S. Supreme Court ruling left states to determine the future of isolated wetlands — and that’s why conservationists were encouraged by last summer’s S.C. Supreme Court ruling that solidified the state’s authority.

The 2011 state Supreme Court decision focused on whether a development firm, Smith Land Co., needed a permit to fill .19 acres of isolated wetlands in a Litchfield Country Club neighborhood. The development company did not get a state permit to make the land suitable for a new home. But the Supreme Court said it needed a state permit to dump sand in the wetland, which is part of a larger Carolina bay that at one point was filled with water and attracted wildlife. The court also said the state had authority to regulate isolated wetlands.

Despite concerns about over-regulation, Armstrong said conservationists are willing to work out a compromise that would exclude farm ditches from regulation, as long as Carolina Bays and other significant isolated wetlands are protected.

In addition to ruling that the development company needed a permit, the court also confirmed the right of citizens to enforce South Carolina’s pollution control law by filing suits such as the one against Smith Land Co. That also has business groups concerned. They fear allowing citizens to sue to force compliance with the law could chill business development across the state.

“The impact of this is horrible,’’ wrote Leslie Hope, a representative of the Carolinas Associated General Contractors, in an email last fall to DHEC board chairman Allen Amsler. “It may allow any Joe Blow to file suit under the Pollution Control Act for any discharge.’’

Nick Kremydas, chief executive with the S.C. Realtors Association, said the state Supreme Court ruling has prompted the need for the Legislature to take action.

“We have an interest in protecting our special places and natural resources, but we also have an obligation to private property rights and ensuring that developers .... can prosper and create jobs,’’ Kremydas said. “These are the kinds of rulings that can slow our economic recovery down.’’