South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

As flooding increases, Trump reduces wetlands protections, sparking concern in SC
October 29th, 2020

By Sammy Fretwell, The State

A log truck squished through a muddy tract of land last week in Cayce, hauling wood from a future industrial site that by all appearances is pockmarked with wetlands.

The truck’s wheels left tracks as it lurched past a trench of standing water, before turning onto a paved thoroughfare and motoring away.

Despite those appearances, the land is considered dry ground under a new Trump Administration rule that has sparked a flurry of lawsuits and predictions of more flooding across South Carolina and the nation.

At a time when storm-driven floods are swamping the state, the federal government is dropping protection for potentially hundreds of thousands of acres of wetlands that control flooding from heavy rains in South Carolina..

It’s a significant change in federal policy because wetlands soak up stormwater, slowly releasing excess water into the ground so that it doesn’t rush onto nearby property. With less protection for wetlands, the state and the nation are at greater risk from rising water, critics of the Trump Administration rules say.

The ability of wetlands to control floods is particularly significant today, environmentalists say. Parts of South Carolina have repeatedly flooded since 2015 as powerful hurricanes have inundated the state. In 2020, some areas already have passed last year’s rainfall total for the entire year.

“We are facing conditions that we’ve never seen before with climate change and increased flooding, with the size of the storms and the frequency of storms,’’ said Kelly Moser, a lawyer with the Southern Environmental Law Center, which has sued to overturn the Trump rule. “What this rule does is it takes us back in wetlands protection.’’

Instead of going through a federal review that could limit plans to pave or dig up wetlands, those who own property declared free of wetlands now can work on projects without federal oversight.

So far, no one is sure how many acres of land that had federally designated wetlands no longer have those restrictions.

But after reviewing federal records, the S.C. Environmental Law Project says it has found 91 development sites and about 215 acres that the government has declared free of regulation in the past four months, even though some of the land could hardly be mistaken for dry ground.

Some of the acreage is land formerly designated as wetlands that no longer meet the definition under the new Trump rule. Other land was reviewed for the first time and declared not to have wetlands.

All told, the government’s decisions affect 76 acres in Jasper County west of Hilton Head Island; 45 acres in Horry County, including the Myrtle Beach area; and 36 acres in Berkeley County west of Charleston, records show.

Development sites in Lexington, Beaufort, Orangeburg, Charleston, Sumter, Kershaw, Richland and Greenville counties also are among the areas where land has been declared free of jurisdictional wetlands and streams since the Trump rule took effect in June, the environmental law project’s Lauren Megill Milton said.

The U.S. Army Corps of Engineers, the agency that considers wetlands permits, did not respond to questions this week about the amount of acreage freed from federal rules since June 22.

Still, the agency acknowledges that the rules have changed under President Trump and some wetlands are no longer under the agency’s jurisdiction.

And it’s clear the agency has reversed some of its past decisions, declaring saturated property free of wetlands the Corps previously said contained wetlands.

CAYCE DEVELOPMENT SITE Properties where the Corps is known to have reversed wetlands decisions are in Lexington, Jasper and Kershaw counties, including the area where the log truck was working last week in Cayce, according to records reviewed by the Environmental Law Project and The State.

The Cayce land, described in federal records as the site of the “Holy Grail’’ project, would include four 200,000-square-foot pharmaceutical manufacturing buildings on Cayce’s 12th Street Extension, according to a 2020 federal public notice. The site would produce gelcaps.

The property includes about seven acres the Army Corps of Engineers classified as wetlands as recently as March. But in an Aug. 21 email obtained by The State, the Corps said it had re-evaluated the site and “determined that the on-site waters are not jurisdictional’’ under the June 22 Trump rule.

Officials with Lexington County, which is listed as the owner of the sprawling site, declined comment. The state Department of Commerce and the city of Cayce also declined to discuss the project. The commerce department said it won’t comment on economic development projects “until/if they are publicly announced.’’

Lou Kennedy, chief executive officer of Nephron Pharmaceuticals, said the new gelcaps plant is another company’s project and is not the expansion her company announced this past summer. The Holy Grail project site is between the Nephron and Amazon plants on 12th Street Extension.

By reversing course and saying the Cayce development site no longer has wetlands, the Corps is allowing the project developers to avoid federal oversight that could reduce the impact the project could have on the natural environment.

Under federal law, the government will grant permits to fill wetlands after a review that requires public notice. But in granting a permit, the Corps of Engineers often requires developers to scale back the number of wetlands or creeks they initially planned to destroy. When permits are granted, developers must offset the loss by protecting wetlands elsewhere, a process called mitigation.

Now that the Cayce property does not have jurisdictional wetlands anymore, developers aren’t required to follow through on a plan to protect more than 60 acres they had offered as compensation for filling about 7 acres of wetlands.

The permit applicant, listed as Lexington County’s former economic development director Michael Eades, proposed improving beaver ponds, preserving wetlands and protecting the buffers around them as compensation for filling the 7 acres, records show.

Bill Stangler, the Congaree Riverkeeper, said he was pushing for a better plan to offset the wetlands destruction, but he lost that opportunity when the Corps declared the wetlands non-jurisdictional.

With sites like the Cayce land no longer under federal oversight, some are asking whether the state Department of Health and Environmental Control can step in. But DHEC says it has limited authority.

The state has some ability to review wetlands projects in a handful of counties along the Atlantic Ocean, but that doesn’t apply to interior counties. The agency said the state also can’t take action to offset wetlands losses if a federal permit is not required.

Environmentalists say the coastal rules are minimal and state regulators don’t have the political will to protect wetlands in the face of political pressure or without help from the federal government. Some environmentalists say state law allows DHEC to protect wetlands.

“I’m skeptical that a state environmental agency like DHEC is going to stand up to developers, who make political contributions, and tell them they can’t destroy some of these essential wetlands that protect communities from flooding,’’ said Frank Holleman, an attorney with the Southern Environmental Law Center.

Moser, Holleman’s colleague, said the Environmental Law Project’s finding that 215 acres have been declared free of wetlands and streams since June 22 is not surprising.

Her group has analyzed the impact of the new Trump rules in the Southeast, finding that more than 1 million acres in major watersheds from Maryland to Georgia could lose protection.

That includes more than 200,000 acres in the Congaree and Saluda River watersheds near Columbia and in the Charleston Harbor watershed.

“This is just the beginning of what we’re going to see,’’ Moser said.

She and Holleman noted that the Trump wetland rules also follow an effort by his administration to curtail states’ abilities to protect wetlands themselves.

WETLANDS WARS Wetlands in South Carolina are a common land feature. More than 4 million acres, or more than 20 percent of the state, contain wetlands, according to the U.S. Fish and Wildlife Service. These natural features range from deep river swamps to seasonally flooded bogs and coastal salt marshes.

While many are scenic slices of the landscape, they often get in the way of development projects, requiring permits that cost landowners money and time to obtain.

Many environmental groups say government oversight is vital. Wetlands act as sponges, soaking up and filtering stormwater that would otherwise flood the land. They also attract wildlife, ranging from wading birds to black bears and frogs.

Those differences have sparked decades of debates between development interests and conservationists over how strict federal wetlands laws should be. In some cases, developers argue that wetlands are little more than potholes and ditches that fill with water — a charge conservationists say is exaggerated.

Federal court rulings during the past two decades have left a sometimes confusing picture of which wetlands should fall under government jurisdiction.

As a result, the Obama Administration put in place a rule that many say was an attempt to clarify which wetlands and streams should be regulated. But farmers and development interests complained that the rules increased federal authority of private land, an argument that drew sympathy from President Trump’s administration.

After taking office, Trump moved to replace the Obama rule with his own rule. The new rule that took effect June 22 narrowed the definition of wetlands, putting millions of acres at risk of losing protection.

“The new rule will correct the vast overreach of prior rules, restore common sense to the regulatory process, reduce project costs and maintain environmental protection of our nation’s waterways,’’ said Earl McLeod, chief executive with the Building Industry Association of Central South Carolina.

Generally, the Trump rule lifts protections for wetlands unless the depressions are next to rivers, lakes or other large bodies of water — or unless they are linked to those waters by a creek or stream, said Amy Armstrong, director of the S.C. Environmental Law Project.

Streams and creeks that flow only when it rains are no longer considered jurisdictional wetlands, a U.S. Environmental Protection Agency notice says.

That leaves many isolated bogs that aren’t directly connected to rivers without protection

Some of those isolated wetlands include Carolina Bays, rare land features that seasonally flood and contain an array of wildlife. These wetlands are found throughout the coastal plain of the Carolinas and Georgia.

Federal law still requires permits to fill deep river swamps, salt marshes and other wetlands.

But the new federal definition of wetlands caused a stir last week when it was discovered that plans for a titanium dioxide mine near the famed Okefenokee Swamp in southern Georgia would affect hundreds of acres of wetlands that had been protected before Trump changed the rules, the Associated Press reported.

Federal decisions to declare wetlands open for development are part of a sweeping agenda by the Trump Administration to reduce regulation that the president says unduly burdens businesses. All told, about 100 environmental rules have either been changed under Trump or are in the process of being changed, according to The New York Times.

Despite arguments against the Trump wetlands rules, officials in one Lowcountry city say they’re saving money because of the change in federal policy.

Mike Czymbor, the city manager in Hardeeville near Hilton Head Island, said the federal decision to declare a municipal industrial park free of wetlands restrictions made the land more marketable for future tenants.

It also saved about $350,000 in costs the city would have incurred if a federal wetlands permit had been necessary, he said. Hundreds of jobs could be created if the industrial park is built out, he said. All told, more than 60 acres are not regulated as wetlands, records show.

“I think Trump tried to strike a balance,’’ Czymbor said. “For our particular purpose and the ability for us to do our project and finance the overall scope of the project, obviously it was very beneficial for us. Philosophically, if you are an environmentalist and you look at nature and everything related to that, you might have a different opinion.’’

Whether the Trump wetlands rule will stand could depend on two things: whether the courts strike the rule down and whether Trump loses next week’s election to Democrat Joe Biden.

Dozens of interest groups have filed suit, challenging Trump’s Navigable Waters Protection Rule. Those include the S.C. Coastal Conservation League and the Southern Environmental Law Center, a regional organization that handles legal services for conservationists.

A court hearing is expected in Charleston in early December in one of the cases.

Environmentalists expect Biden, vice president under President Obama, would be reluctant to continue the Trump rules.

Armstrong, the SC Environmental Law Project’s director, says everyone should pay attention to the changes in wetland rules because many people could be affected. A basic protection established by the Clean Water Act is being undermined, she said.

“We are particularly alarmed at the president’s hobbling of the Clean Water Act since South Carolina has experienced persistent and catastrophic flooding events over the past five years,’’ she said in an email. “Much of this flooding has occurred in low-lying areas that were once part of our wetland and waters systems. We have witnessed first-hand what happens when we allow the practice of fill and build in wetlands, yet Trump’s rule gives a free pass to do just that in some of our most vulnerable landscapes.’’

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