South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Arabella Farms sued for Clean Water Act violations
April 28th, 2020

By Kasie Strickland, The Sentinel Progress

PICKENS COUNTY — A popular Upstate wedding and event venue is being sued by Naturaland Trust, South Carolina Trout Unlimited, and Upstate Forever for Gross Negligence, Continuing Trespass, Public Nuisance, Private Nuisance and multiple violations of The Clean Water Act (CWA).

According to the 28 page complaint filed April 6, Arabella Farms, owned by Dakota Finance, LLC; Ken and Sharon Smith and Willard R. Lamneck Jr.; cleared approximately 20 acres of land to establish a commercial venue available for weddings, family reunions, dances, school field trips and parties.

“While this venue has been marketed by the defendants as an event ‘barn’ and as Arabella ‘Farm,’ these monikers merely denote the style of the event site and not its function,” the complaint reads.

The venue is bounded by three bodies of water: Clearwater Branch, Peach Orchard Branch, and an unnamed tributary of the Eastatoe River. Each of these water bodies receives stormwater discharges from the disturbed site during rain events, but the bulk of those discharges has been into the Unnamed Tributary.

The Tributary crosses from the site onto the property owned by Naturaland Trust property, then to property owned by the South Carolina Department of Natural Resources (SCDNR) and eventually into the Eastatoe River.

The Eastatoe, which flows to Lake Keowee, is a popular trout fishing waterway.

Clearwater Branch, Peach Orchard Branch, and the Unnamed Tributary are continuously flowing and navigable waters of the United States, pursuant to the CWA.

“The unlawful discharges at issue in this case are particularly severe given the site location. The site is situated in an area possessing such significant ecological value that many surrounding properties have been acquired for the purpose of conservation, by both public and private entities,” the complaint states. “The ecological value of this area centers around its importance to water quality and the prevalence of valuable headwater streams and intact riverine habitats in the area. The defendants’ actions and inactions continue to cause immeasurable damage to such resources.”

Dakota initiated land clearing activities at the site in early 2017. In the late spring and summer of 2017, Dakota undertook mass grading, removing all natural ground cover, denuding the entire site, and exposing its underlying granular soil. The site’s steep terrain and sandy soil make it inherently incompatible with the type of aggressive land disturbance undertaken by the defendants, and defendants’ activities have made the site exceedingly difficult to stabilize and susceptible to major erosion, the South Carolina Environmental Law Project (SCELP) asserts.

“Making matters worse, (the) defendants claimed to be exempt from the laws meant to prevent and manage that erosion. For years after commencing work on the site, defendants maintained that their project fell within an ‘agricultural exemption’ to CWA stormwater permitting and regulation,” court papers read. “To preserve this claim, defendants went so far as to represent in various official documents that the ‘barn’ at Arabella Farm was purely for agriculture and would not have a septic system or other indicia of the structure’s true commercial purpose.”

Because the defendants claimed to be exempt from CWA stormwater regulation, it is alleged their land clearing and grading took place without even the most basic stormwater structures in place.

“Consequently, significant unlawful discharges of sediment-laden stormwater began immediately and continue to occur with every rain event,” said SCELP, who is representating the plaintiffs in the suit.

The problems eventually led to the involvement of Pickens County, which began monitoring Arabella Farms in early 2018, prompting the venue to apply for an NPDES construction permit on May 9, 2018.

“The application states that the defendants ‘intend to construct a barn/pavilion structure to accommodate special events,’ and the start date for land disturbance is listed at May 15, 2018,” SCELP argued. “Of course, in actuality, mass grading had long since taken place on the site, and the event barn was fully constructed prior to this application.”

Further, despite the approximately 20 acres of major land moving that had already taken place at the venue, the application reported the planned disturbance as a mere 2.2 acres.

Pickens County denied the application based on 21 separate deficiencies, including the misrepresented size of the project.

Dakota subsequently reapplied with Pickens County twice more, on June 29, 2018 and Jan. 8, 2019, but many deficiencies in Dakota’s proposed stormwater plan were noted each time.

Bottom line, Dakota never obtained an NPDES construction permit for its discharges.

By late 2018, Arabella began to install limited stormwater BMPs but the suit argues the installations were insufficient and not part of an approved Stormwater Pollution Prevention Plan — which is required for NPDES permit coverage.

One component of the “patchwork system” was a makeshift dam allegedly erected by the defendants in the Unnamed Tributary, on the boundary of Naturaland Trust property.

It was later revealed Arabella farms sought no permit or approval for construction of this dam, and the Army Corps of Engineers, who regulates such fill activities under CWA Section 404, had to be alerted to the dam by SCDNR.

Also in late 2018, major downstream impacts from the site were first noticed on the Eastatoe River.

“Trout populations … are limited to a small number of high-quality water bodies in South Carolina. Trout populations cannot coexist with the type of sediment-laden stormwater discharges that have originated from the site, as such discharges cause detrimental impacts to dissolved oxygen levels, water temperature, and critical food sources, including macroinvertebrate populations,” the complaint reads. “During significant rain events in 2018 and 2019, sediment discharges from the site reached the Eastatoe with a volume and frequency that were significantly disruptive to the ecology and water quality of the River and to the recreational opportunities of those attempting to use the River.”

In fact, according to records, fishermen complaints in late 2018 triggered oversight from SCDNR.

Documentation reflects that, for at least two years, staff at SCDNR have been working “in vain” to stop sedimentation from Arabella Farms from entering the valuable trout waters of the Eastatoe River.

These efforts have included dozens of communications with Pickens County, DHEC, the Corps, and the Department of Transportation.

On Jan. 2, 2019, SCDNR’s manager for the region expressed to Pickens County that the Unnamed Tributary had been “irreparably harmed” and that the “Eastatoe River has been equally devastated.”

Ultimately, SCDNR’s legal office served the defendants with a “cease and desist” letter on Jan. 29, 2019, ordering them to immediately stabilize the site, stop work, prevent further offsite impacts — or be sued.

The plaintiffs in the suit are seeking injunctive relief under the CWA including fines and penalties for past and current violations of the CWA, payable to the United States Treasury; attorneys’ fees and costs of litigation; actual damages, punitive damages and injunctive relief.

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