SAVANNAH RIVER PROJECT

Toal: DHEC’s approval of Savannah River dredging broke the law

sfretwell@thestate.com June 6, 2012 

In this file photo taken Aug. 27, 2010, the CMA CGM Figaro cruises high in the water because of a smaller load size required by the depth of the Savannah River in Savannah, Ga.

RICHARD BURKHART — AP/Savannah Morning News

The state Supreme Court hammered South Carolina’s environmental department Tuesday over a 2011 decision to approve dredging the port of Savannah — a determination that Chief Justice Jean Toal said appears to have been illegal.

During a two-hour hearing in Columbia, Toal said state regulators did not follow the law when they cut a deal with Georgia to approve the more than $650 million project last November.

The Department of Health and Environmental Control should have included another agency, the Savannah River Maritime Commission, in the negotiations with Georgia, say environmental groups that have sued to stop the port deepening.

“You disobeyed the law when you did not involve the Savannah Maritime Commission in a settlement of this matter,” Toal told DHEC attorneys. “Would you at least agree? I think everybody agrees with that.”

The court’s decision isn’t expected until later this summer, but Toal’s comments Tuesday might have provided insight into what the justices are thinking. The case is part of an increasingly complex legal fight over the ambitious deepening project, launched to attract larger ships to the port of Savannah.

Port boosters and the U.S. Army Corps of Engineers say the Savannah harbor dredging will ultimately help the economy of both Georgia and South Carolina by increasing shipping. Opponents say it will hurt efforts to deepen the port of Charleston, a rival to Savannah’s, while also destroying rare marshes and lowering water quality along the river bordering the two states. The dredging would deepen the harbor by 5 feet to a level of 47 feet.

Since DHEC negotiated a deal and approved the dredging project in November, opponents have filed at least three separate legal cases in state or federal court challenging the agency’s decision.

In the Supreme Court case, five environmental groups have asked the court to decide whether DHEC had authority to negotiate a settlement for the dredging and whether it also had the power to issue a state permit for work in “navigable waters.”

The environmental groups contend both of those powers are vested with the Maritime Commission, which also has joined the legal fray. Georgia needs South Carolina’s approval because the river is shared by both states.

Toal, who read aloud from the 2007 law establishing the commission, said DHEC departed from normal agency practice in cutting the deal with Georgia last November.

The department’s staff, which had initially denied the permit, changed its mind just minutes before the DHEC board was to hear the case. Gov. Nikki Haley, after talking with Georgia Gov. Nathan Deal, also a Republican, asked the DHEC board to review the staff decision.

“DHEC took it upon itself to negotiate these matters with the state of Georgia and the Corps of Engineers and did not involve the Maritime Commission — did not even so much as allow the Maritime Commission to appear at the meeting at DHEC where this privately-arrived-at agreement was made public,” Toal said.

She said DHEC’s governing board then “rubber-stamped” the agreement without a full hearing.

“You decided to scrap that process and enter into a negotiated process. That is what this law doesn’t let you do,” Toal said.

DHEC lawyer John Harleston said the agency had the right to negotiate a settlement. State and federal officials in Georgia agreed to concessions to protect-water quality, which is the reason DHEC staff signed off on a water-quality permit needed by the port, he said.

Officials in Georgia, among other things, agreed to ensure money is available to pump oxygen into the river after it is deepened. That is supposed to offset lower oxygen levels that otherwise would result from the dredging. Harleston also said that DHEC’s negotiated settlement was not unusual and that the agency did not break the law in negotiating the deal.

“The staff met with the Corps as they would meet with anybody in a dispute,” Harleston said, noting that staff members told the Corps, “If you satisfy those things ... we no longer will have a basis of denial.”

Despite pointed questions by Toal and the court’s other justices, there’s no guarantee they will rule in favor of the environmental groups. The court will weigh Tuesday’s arguments and issue a decision on whether DHEC had the authority to cut the deal with Georgia and the Corps.

And even if the court did rule in favor of the conservationists, it still would not settle the issue. The decision would be sent to a lower court where conservation groups already have appealed the DHEC permits negotiated in November. The high court’s decision would have a bearing on the specific issues that would be argued in Administrative Law Court.

Meanwhile, attorneys for the U.S. Army Corps of Engineers have threatened to approve the project, regardless of what happens in South Carolina, citing a federal law that allows them to do so for such dredging. The conservationists have vowed to fight the Corps if it takes that route.

For now, environmentalists say a favorable ruling from the Supreme Court would make it easier to win their case in state Administrative Court and stop permits needed for the project. Frank Holleman, a lawyer representing the environmental groups, said he was pleased with Tuesday’s court proceedings.

“It went great,” Holleman said. “The statute is as clear as a bell, and the justices I believe saw that and recognized the process through which DHEC went, in allowing the Corps and Georgia to deepen the Savannah River, was unlawful.”

Environmental groups seeking a ruling are the S.C. Coastal Conservation League, the S.C. Wildlife Federation, the Savannah Riverkeeper and the Conservation Voters of South Carolina. The Southern Environmental Law Center is providing the legal work.

In a separate matter, those groups filed comments Tuesday with the Corps saying the project would be a waste of valuable public resources and leave the river dependent on “giant mechanical lungs,” to forever pump oxygen into the water to offset the dredging’s impact.

Reach Fretwell at (803) 771-8537.

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