Spectre Development (SC)

The patches of wetlands that dot the southern landscape play a vital role in our region’s ecological health. They filter pollutants, provide habitat for a host of wildlife, and absorb floodwaters that are then released slowly to nearby streams. Recent U.S. Supreme Court rulings have put these resources at risk by creating confusion over which wetlands are protected by the Clean Water Act. As a result, it has been left to individual districts of the Army Corps of Engineers to determine, case by case, whether a stream or wetland falls under federal safeguards.

In South Carolina’s Waccamaw River watershed, the Corps has set a dangerous precedent by erroneously determining that a 31-acre wetland targeted for filling by a developer is “isolated” and therefore not eligible for Clean Water Act protection. SELC is challenging this decision and has informed the Corps and the U.S. Environmental Protection Agency that they face legal action if they refuse to shield this resource from destruction.

Double jeopardy for South Carolina wetlands

The case involves a company called Spectre, LLC, which seeks to fill the wetland in question for a development. Before the developer clear-cut the tract, it was populated by stands of pond cypress, swamp tupelo, and sweetgum. It remains one of the few large, intact and functioning freshwater wetlands remaining in the area. It is also in double jeopardy.

• In addition to federal protections for such wetlands, South Carolina’s Coastal Zone Management program has provided another important safeguard by preventing coastal wetlands from being filled or polluted.
• When the Corps determined that the site was not protected under federal law, the state turned down the company’s request to fill the wetland under its Coastal Zone Management program.
• Spectre challenged the decision in court, and in 2008, an administrative law judge ruled that South Carolina’s Coastal Zone Management program is not enforceable and cannot be applied in permitting decisions involving isolated wetlands.
• With the help of the South Carolina Environmental Law Project, the state is asking the South Carolina Supreme Court to overturn this ruling, and SELC will file a “friend of the court” brief supporting the state’s appeal.

If allowed to stand, this ruling would put thousands of acres of wetlands and hundreds of miles of streams in the state’s coastal plain at risk of development or destruction. Moreover, if the Corps’s unlawful determination is left unchallenged, even more wetlands and streams will be vulnerable.