Major Victory in the S.C. Supreme Court!

Posted on 1/2/10

The South Carolina Supreme Court has upheld the validity of the South Carolina Coastal Management Program and reaffirmed its applicability to all wetlands in the coastal zone. In a unanimous opinion issued February 1, 2010, the Supreme Court overturned a ruling of the Administrative Law Court and rejected a developer's challenge to the Program. To continue reading this article select "more" below or click HERE to read the opinion.

The case was filed by a development group, Spectre, LLC, as an appeal from a decision of the South Carolina Department of Health & Environmental Control ("DHEC") denying the developer's application for a stormwater permit for a 62.93-acre tract of land in Horry County. The developer proposed to fill 31.76 acres of wetlands as part of its preliminary development plan. DHEC denied the application because the wetland fill would violate the Coastal Management Program policies that are designed to protect wetlands. Administrative Law Judge John McLeod agreed with the developer, ruling that the Program does not cover wetlands that are not within the jurisdiction of the federal Clean Water Act, and that the Coastal Management Program is invalid because it was not promulgated as a regulation under the state Administrative Procedures Act.

The Supreme Court reversed on both points, in an opinion written by Justice Costa Pleicones. The Court pointed to provisions in the Program that provide protection to all wetlands in the coastal zone, regardless of federal jurisdiction. The Court also noted that the 1977 Coastal Zone Management Act specified as alternative, and more rigorous, procedure for approval of the Coastal Management Program, and thus the Program did not need to be promulgated as a regulation.

"This ruling removes a legal cloud that's hung over the Coastal Management Program for nearly 10 years," said Jimmy Chandler, director of the South Carolina Environmental Law Project (SCELP). SCELP represented five environmental groups who intervened in the case to help DHEC defend the Program.

Amy Armstrong, the SCELP staff attorney who argued the case in the Supreme Court, said "the Supreme Court's decision is a significant victory and ensures protection for valuable wetlands and natural resources throughout the eight coastal counties."