South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

SC attorney general fights federal environmental rules
October 16th, 2014

COLUMBIA, SC — Gov. Nikki Haley and Attorney General Alan Wilson want the federal government to abandon a new environmental rule to protect streams and wetlands that harbor wildlife but which get in the way of development.

The rule, proposed last spring, is an attempt by the U.S. Environmental Protection Agency to restore some protections to intermittent streams and isolated wetlands that were lost following a U.S. Supreme Court decision 13 years ago. In South Carolina, the Supreme Court ruling left thousands of acres of isolated wetlands open for development without permits.

But in a letter written jointly with their counterparts in 15 states, Haley and Wilson said the EPA’s new rule is effectively a power grab that would unduly burden average property owners. The rule would mean “no water or occasional wetland is ever safe from federal regulation,” the letter said.

The letter, written Oct. 8, asks the government to drop plans to put the rule in effect. Critics of the EPA rule complain that roadside ditches and farm ponds could fall under federal regulation.

If the rule “is allowed to take effect, it could have a catastrophic impact on South Carolina’s economy,” Wilson said in a news release Thursday afternoon.

“Farmers would suddenly be burdened by excessive red tape. County governments would be straddled by costly regulations. These onerous regulations would treat a simple drainage ditch the same as ‘navigable water’ such as the Mississippi River. These proposed policies are simply bad for all South Carolinians.”

Haley’s office declined to provide a comment, referring to the Oct. 8 letter. Those signing the letter included the governors of North Carolina, Iowa, Mississippi, Nebraska and Kansas and attorneys general in Alabama, Georgia, West Virginia and the Dakotas.

Wilson and Haley drew harsh words Thursday from environmental groups that said the rule is needed to protect wildlife, control flooding and cleanse polluted storm water. Intermittent streams are often some of the most sensitive ecosystems, as are isolated wetlands, such as rare Carolina Bays that dot the South Carolina coastal plain, environmentalists said.

Jon Devine, an attorney with the Natural Resources Defense Council, said Wilson’s statement is “100 percent wrong.” The EPA and the U.S. Army Corps of Engineers are simply restoring a limited amount of protection, he said. Roughly 20 percent of the isolated wetlands left vulnerable to development without government permits nationally would have federal protections restored, Devine said.

In perspective, the government’s proposal is a modest one, he said. Prior to 2001, virtually all waters in the United States were regulated by the federal government, meaning developing them required federal review and government approval.

“The law had worked well for several decades” before the court ruling, Devine said. “Restoring some of these protections will have environmental benefits that outweigh the expected costs of the rule.”

The S.C. Environmental Law Project’s Amy Armstrong called Wilson’s statement “alarmist.” The Southern Environmental Law Center offered similar thoughts.

“Protecting streams and wetlands that purify our drinking water, buffer our communities from storms and floods, and filter polluted runoff is basic common sense,” the law center’s Chris DeScherer said. “The EPA and the Corps need to clarify that the Clean Water Act protects our nation’s streams, wetlands, and the beneficial services they provide all Americans. Clean water is too valuable a Southern resource not to protect. Every single one of us relies on clean water every single day.”

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