Roper Pond, LLC, owns a 15-acre tract on Trenholm Road in Richland County, bordering on the Town of Arcadia Lakes. Roper Pond proposes a high density apartment complex on the tract. The tract includes a nice shallow pond full of lily pads that is part of the Gills Creek watershed and runs through Arcadia Lakes. The development would excavate the pond to convert it to a stormwater detention pond. DHEC issued a stormwater permit to the developer and we appealed.
The key issue is whether the developer can excavate the pond to convert it to a stormwater detention pond. State stormwater regulations require developers to obtain all needed wetlands permits prior to issuance of a stormwater permit. The developer has obtained approval from the Corps of Engineers to fill 0.07 acres of wetlands adjacent to the pond under a Nationwide Permit, conditioned upon a DHEC approval. DHEC has not issued such an approval. DHEC’s witnesses have testified that no one at the agency has approved excavation of the pond, but Roper Pond claims that the Corps Nationwide Permit allows the excavation. Our expert, Professor Seth Reice of UNC, says that the pond is a very healthy ecosystem that will be destroyed if the excavation occurs.
We had a trial in September, 2009, before Administrative Law Judge John McLeod, and he upheld the permit in January, 2010. We filed a motion to reconsider, which was also denied.
We filed an appeal in the Court of Appeals of Judge McLeod’s decision in 2010. The Court of Appeals ruled against us, holding that the Petitioners did not have standing and imposing a requirement that a plaintiff must have a property interest in order to have standing to bring a suit. We asked the South Carolina Supreme Court to review the Court of Appeals decision and it agreed. We completed briefing in the Supreme Court in November of 2014.
The S.C. Supreme Court which heard oral arguments on March 18, 2015. Members of the Court understood our claim that the project did not have all of the necessary water quality approvals; however, they expressed concern regarding their ability to provide a remedy to alleviate the claims of our clients, the Town of Arcadia Lakes and a number of individuals that live around and adjacent to the development. On April 8, 2015, the Court issued an Opinion concluding that it is impossible for it to provide a remedy to the parties because the construction activities have been completed. While we are disappointed with the result, this case underscores the importance of preserving the status quo and preventing construction activities while a permitting decision is pending with the courts.