South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Pawleys Island: State tries to avoid county default on groin permit
January 13th, 2014

The words appear in bold print. In capital letters. Underlined.

“Georgetown County is not abandoning the permit.”

The statement from Wesley Bryant, the county attorney, was filed with the state Administrative Law Court last month along with an argument from the state Department of Health and Environmental Control that the agency should be able to defend a permit issued to the county in 2012 for a 205-foot-long rock groin on the south end of Pawleys Island.

Environmental groups appealed the permit and have asked the court to find the county in default for failing to answer pleadings. DHEC wants the opportunity to argue the appeal on its merits, says Brad Chudar, its chief counsel.

Administrative Law Judge Phillip Lenski held a hearing in Columbia in November and gave both sides additional time to file written arguments. Lenski noted the county’s absence from the proceeding.

The county wants to build the groin to prevent erosion in front of its public parking lot on the south end of Pawleys Island. The town of Pawleys Island supports the project and has asked to intervene in the case. That matter is also pending before the court.

The Coastal Conservation League and the local chapters of the Sierra Club and League of Women Voters object to the groin permit, saying it will damage wildlife habitat and cause erosion on the souther or downdrift side of the structure. But those arguments have not been part of the appeal so far.

Michael Corley, staff attorney with the S.C. Environmental Law Project, has asked the court to overturn the permit on procedural grounds. He and Amy Armstrong, chief counsel for the law project, sent the county a “request for admissions,” a list of 10 statements about the groin project that, if true, show that it doesn’t qualify for a state permit. The county failed to respond within 30 days, so the statements are deemed to be correct and the permit should be overturned, Corley argued.

Bryant sent Corley and Armstrong an e-mail saying County Council decided not to spend the money to defend the permit. After the law project attorneys filed a motion to have the case dismissed, Bryant submitted an affidavit to DHEC saying the request for admissions was sent to the wrong address. He answered them with blanket denials.

Churdar, the DHEC attorney, sent Bryant a request for admissions in December, but with statements that contradict those submitted by the law project. “The department does not anticipate an answer,” he told the court in a filing the same day. So those statements will be accepted as true and be at odds with the previous statements submitted to the court.

The court will be left with “a genuine issue of material fact in dispute” and should deny the request to dismiss the case, Churdar argues.

One thing both sides agree on is that the situation is unique. There is no legal precedent in South Carolina, Churdar said, but he offered the court cases in other states in support of his effort to move the groin permit appeal forward.

“South Carolina has generally followed a principle favoring the disposition of cases on the merits and not on technicalities,” he said.

But Corley also argued that the rules of the Administrative Law Court allow the judge to dismiss the case because Georgetown County has not responded. Churdar said even if the court agrees, it shouldn’t dismiss DHEC from the case because the agency’s decision to grant the permit was challenged by the appeal. “The department asks the court to allow it to defend its permitting decision and technical review, both of which are in question, on the merits,” Churdar said.

Jim Beasley, a spokesman for DHEC, said the agency wants to defend the permit because the appeal filed by the opponents in November 2012 challenges the agency’s decision to issue the permit.

The opponents “are frankly befuddled as to why a state agency – which presumably would have no allegiance to either party, but only to its decision-making process – continues to fervently press the interests of Georgetown County,” Corley told the court in a filing last week. “A procedural default dismissal would say nothing about the sanctity of DHEC’s permitting decision.”

As to Bryant’s statement that the county hasn’t abandoned the permit, Corley says the county attorney “is of course not representing the county in this matter and has given no indication that County Council authorized him to speak on this point.” Bryant’s statement is “directly contradicted by the county’s actions [and] has not more relevance than any other county employees thoughts on the matter.”

If the county doesn’t answer DHEC’s request for admissions, rather than create a dispute between facts “the cause for dismissal of Georgetown County as a defaulting party is only that much stronger,” Corley said.

Without Georgetown County as a party, “the question of whether DHEC properly applied its regulations in granting the permit becomes an entirely theoretical exercise and one improper for this court’s jurisdiction,” Corley said.

Lenski said in November that once he had received the final briefs in the case it wouldn’t take long for him to reach a decision.

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