Army Corps Voids Earlier Withdrawal of Protections for Wetlands near Charleston

Almost two months after conservation groups announced their intent to sue, the U.S. Army Corps of Engineers late last week rescinded—at the request of the developer–an earlier decision to remove federal protections for 492 acres of wetlands in Black Tom Bay near Charleston and informed the developer that waters subject to Clean Water Act protections exist on the property known as “Pine Hill Tract” located within the Ashley River watershed.
The 60 day notice of intent was filed on February 18 by the Southern Environmental Law Center and National Wildlife Federation on behalf of the Coastal Conservation League, National Wildlife Federation, and South Carolina Wildlife Federation.

“We’re pleased the Corps has reversed its decision,” said Chris DeScherer, attorney, Southern Environmental Law Center. “What we really need is national legislation that resolves current legal uncertainties and for the Corps to apply careful review to future decisions so South Carolina’s streams and wetlands are protected and not left vulnerable to destruction.”

In February 2007, the Corps determined that all 492 acres of wetlands on the site were isolated and therefore not protected by federal law. An investigation by the conservation groups revealed that the wetlands qualify for federal protection because they are connected by waterways with the Ashley River and likely provide significant benefits to the area, including flood storage, water purification, and habitat for wildlife and recreation. Because wetlands provide such vital services, unavoidable impacts to wetlands protected under the Clean Water Act require full mitigation and permits.

“The current legal situation is untenable and clarity that all important waters are protected is urgently needed,” said Jim Murphy, attorney for the National Wildlife Federation. “Congress can fix this problem by passing legislation restoring the historic scope of Clean Water Act protection. Absent such a fix, we are stuck wasting time and resources navigating the legal fog while we lose valuable resources and water quality suffers.”

Recent U.S. Supreme Court rulings have created confusion over which wetlands and streams are protected by the federal Clean Water Act and, for many wetlands, essentially left it to the U.S. Army Corps of Engineers to decide the issue on a case-by-case basis.

“We are also pleased that the developer, Ben Gramling, was willing to ensure that important wetlands would not be disturbed,” said Nancy Vinson, director of the South Carolina Coastal Conservation League’s Air, Water, and Public Health Programs. “Certainty is needed for developers so they do not encounter unnecessary delays created under the current legal situation. Congress should pass a law to eliminate the confusion over jurisdictional wetlands. That would benefit conservationists, developers and the agencies that enforce the rules.”

Wetlands improve water quality, buffer storms, and act as freshwater reservoirs and habitat for fish, shellfish and migratory birds. When hurricanes batter the coast, wetlands are the first line of defense for communities. They absorb excess rainwater and filter runoff in downpours. When drought threatens, wetlands are important natural reservoirs. These benefits will be increasingly important for South Carolina as the climate changes and flooding events and storm surges likely increase in frequency and intensity.
In filing the notice of intent to challenge the Corps’ determination, the Southern Environmental Law Center represented the South Carolina Coastal Conservation League, the National Wildlife Federation, and the S.C. Wildlife Federation. National Wildlife Federation served as co-counsel on the case.

Upon receipt of the notice, the U.S. Army Corps of Engineers and the EPA had 60 days to re-consider its determination and compliance with Clean Water Act requirements. If, at the close of 60 days, sufficient action had not been taken, the conservation groups would have filed a lawsuit in the U.S District Court for the District of South Carolina.