South Carolina Environmental Law Project

Press Release

Georgetown, SC – On July 11, 2011, the South Carolina Supreme Court issued a landmark opinion declaring that S.C. law requires protection of isolated wetlands, and that a citizens group has a right to enforce those protections.  In the opinion, League of Women Voters of Georgetown County v. Smith Land Company, our State’s highest Court reversed a lower court order and ruled that the Pollution Control Act authorizes private enforcement actions, that the S.C. Department of Health and Environmental Control (DHEC) has jurisdiction under the Act over isolated wetlands, and that Smith Land Company violated the Act.

Smith Land Company owns a 0.332 acre lot in Pawley’s Island.  The lot contains a portion of one of the unique wetland bodies often referred to as a Carolina Bay.  The 0.19 acre wetland section of the property consisted of vegetated wetlands and a pond.  Smith Land Company cleared the lot, brought in truckloads of dirt and completely filled the wetlands and the pond without receiving a permit from DHEC.  The Georgetown County League of Women Voters (the League), represented by the South Carolina Environmental Law Project, challenged the action arguing that the Pollution Control Act requires a permit before discharging materials into the wetlands, which are waters of the State.

The wetlands on the property were delineated as “isolated” by the U.S. Army Corps of Engineers, meaning that no federal Clean Water Act permit was required.  Smith Land Company argued, and the circuit court agreed, that DHEC similarly did not have jurisdiction to regulate isolated wetlands.

DHEC derives authority to regulate wetlands from the South Carolina Pollution Control Act (the Act).  S.C. Environmental Law Project attorneys Amy Armstrong and Jimmy Chandler (now deceased), argued that the Act and its regulations require a permit before filling isolated wetlands.  The circuit court rejected this argument and also held that the citizens groups did not have the right to bring an action under the Pollution Control Act.

The S.C. Supreme Court first held that DHEC does have jurisdiction to regulate isolated wetlands on the property.  The Court noted that while the U.S. Supreme Court has held that the U.S. Army Corps of Engineers does not have jurisdiction to regulate isolated wetlands under the Clean Water Act, this has no impact on DHEC’s ability to do so.  The Court found that DHEC has jurisdiction to regulate isolated wetlands based on the clear language in the Pollution Control Act, which defines waters subject to regulation.

Given that DHEC has jurisdiction over the wetlands, the Court next held that Smith Land Company was required to get a permit from DHEC before filling the wetlands.  The Court cited the Pollution Control Act as imposing a permit requirement prior to discharging into the wetlands without a valid state permit.

Finally, the Court held that Pollution Control Act provides a private right of action.  In other words, private citizens can sue to enforce the provisions of the Act.  The Court interpreted the intent of the Legislature as evidenced in the Act and found that the League had standing on the basis of the harm to its individual members’ aesthetic and recreational interests.

In sum, the Supreme Court’s order provides important protections to our State’s ecologically diverse and valuable “isolated” wetlands.  Carolina Bays are only one example of the unique ecosystems that can be found in such wetlands.  Prior to filling in any isolated wetlands in the State, a Pollution Control Act is now required.  The Court’s order also struck down what would have been a significant obstacle to those citizens seeking environmental accountability in this State.  The Supreme Court’s opinion leaves no doubt that the Pollution Control Act opens the door for private citizens to enforce its terms.  SCELP’s Amy Armstrong said the case is a “landmark decision establishing protections for isolated wetlands throughout the State, and mandating that a State permit be obtained prior to filling any of our State’s unique and essential wetland resources.”