Project Jeopardizes South Carolina Wetlands

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Project Jeopardizes South Carolina Wetlands *April S. Williams* April is a third-year law student at the Florida Coastal School of Law. The views expressed herein are those of the author and do not necessarily reflect the views of the Sea Grant Law Center, NOAA, or any of its sub agencies. The United States is home to over 100 million acres of wetlands, 4.6 million of which are isolated wetlands of South Carolina. Congress has proposed a new interstate to run from Michigan to Myrtle Beach, South Carolina. The South Carolina Department of Transportation’s (DOT) chosen route will affect a minimum of 384 acres of wetlands scattered up and down the preferred alternative. Protection for these wetlands that serve so many important functions is insufficient, and it is time to enact real protections. Since the recent Rapanos v. United States decision, and the further erosion of wetlands regulations, section 404(b) of the Clean Water Act (CWA) is not adequate with respect to protection of isolated wetlands. Congress needs to enact a statute specifically tailored to protect such wetlands, South Carolina needs to immediately enact an isolated wetlands protection statute, and the U.S. Army Corps of Engineers (Corps) needs to work on a case by case basis, and, along with the EPA, promulgate new definitions and regulations to protect wetlands. South Carolina’s Wetlands Wetlands have been shown to slow water momentum, reduce flood heights, and allow for ground water recharge. This is especially important in hurricane-prone South Carolina, given the ability of wetlands to store floodwaters and reduce property damage and loss of life. One acre of wetland can store up to 1.5 million gallons of floodwater. One reason floods have become more costly is that over half of the wetlands in the U.S. have been drained or filled. Wetlands also serve as water filtration systems by removing nutrients and pollutants from water before it leaves the wetland. Storm water and wastewater treatment facilities are sometimes designed from wetlands due to the ability of wetlands to filter water. Wetlands also serve as fisheries and wildlife habitats, and provide recreation. Having such an important role in the environment, wetlands need protection against those who want to build on and destroy them, specifically the isolated wetlands in the path of 1-73. South Carolina’s most comprehensive wetlands statute to date is the “Coastal Tidelands and Wetlands Act.”1 However, this statute only protects “critical areas,” and leaves out many acres of South Carolina wetlands. It defines “critical areas” as coastal waters, tidelands, beaches, or beach/dune systems. It also states that South Carolina may issue permits for “erosion and water drainage structure . . . as it may deem most advantageous to the State for the purpose of promoting the public health, safety and welfare . . . ” This permit system leaves a loophole for the state to grant permits when advantageous to the public welfare. Also there is no protection for isolated wetlands or basically any inland wetlands. The Pollution Control Act indirectly protects South Carolina wetlands. It gives the Department of Health and Environmental Control (DHEC) the power to regulate pollution and maintain water quality, but just refers to “waters,” not “wetlands,” “implying they are not covered by the act.”2 I-73 Project Interstate 73 is a proposed road that will provide a direct route for the northern states to the coast of South Carolina. The primary goals of this project are system linkage and economic development. The DOT wants to provide a connection between Interstate 95 and the Myrtle Beach region, and “enhance economic opportunities and tourism in South Carolina.”3 The DOT is currently sending out engineers and scientists to determine what wetlands could be filled, and which should be preserved. The DOT is not sure yet which wetlands will be bridged and which will be filled, but, if filled, they will have to obtain a permit first. A final Environmental Impact Study is to be released in the summer of 2007. In the meantime, the South Carolina wetlands that are at stake on the proposed path for Interstate 73 must be protected. The momentum favors constructing this interstate rather than new legislation to protect wetlands. Therefore, the citizens of South Carolina need to oppose this new road’s interference with wetlands. Citizens need to demand that a more extensive EIS be done, and that bridges take precedence over filling regardless of the additional cost. Also a possible citizen suit under the CWA might be viable, and perhaps result in an injunction, at least until further legislative action is taken. South Carolina needs to enact a real isolated wetlands protection statute. It needs to work with the federal government in enacting real wetlands legislation by expanding the protections to any water or wetland not covered by federal law. The new statute should allow construction only in the direst circumstances, mandating judicial approval for any such permit. Federal Protection In a culmination of wetlands jurisdictional cases, in 2006 the Supreme Court heard Rapanos v. U.S. Army Corps of Engineers.4 The issue was whether the Corps had jurisdiction over non-navigable waters. The Corps’ jurisdiction rested on whether the waters were considered adjacent to navigable waters and what kind of hydrological connection must be present for a water to be considered adjacent. The case resulted in a plurality opinion that left many questioning how to apply the ruling. Many circuit courts have chosen to follow Justice Kennedy’s concurrence. Justice Scalia held that the term navigable waters included “only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water,” and that adjacent waters are only those in which “a continuous surface connection exists between it and navigable water.”5 He narrowed the definition of “navigable waters” to waters that are in fact navigable. Congress defined “navigable waters” as “waters of the U.S.” so that actual navigability would not be an issue.6 According to the legislative history, the phrase “waters of the U.S.” was to be given “the broadest possible constitutional interpretation.”7 Ultimately, Justice Scalia set out a two-prong test to determine whether adjacent water is covered by the CWA. First, the adjacent channel must contain waters of the United States (i.e., relatively permanent body of water connected to traditional interstate navigable waters); and second, the wetland must have a continuous surface connection with that water. This is a very strict test. Justice Kennedy’s concurrence advocated for a “significant nexus” test, which would be less narrow than the idea promoted by Justice Scalia. He held that the Corps should develop guidelines to determine what kind of proximity would satisfy the “significant nexus” test. This is the same interpretation most of the appellate courts follow. Justice Kennedy would defer to the Corps regulations, and rejected Justice Scalia’s claim that only “permanent, standing or flowing waters are federally protected.” He also wrote the wetland in question need not have a “continuous surface connection” to navigable water, because they can still have “significant effects” on water quality, and the ecosystem, regardless of how strong or tenuous their connection.8 Justice Kennedy wrote that wetlands are areas that are inundated or saturated with water at a “frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”9 His opinion went on to attack the two limitations that the plurality opinion put on the CWA. First, he said that the “continuous flow” requirement does not make sense in a statute “concerned with downstream water quality,” because small continuous trickle would be covered, but “torrents thundering at irregular intervals” would not. According to Justice Kennedy the second limitation Justice Scalia imposed is the “exclusion of wetlands lacking a continuous surface connection to other jurisdictional waters.”10 Justice Kennedy wrote that Justice Scalia’s opinion is “inconsistent with the [CWA’s] text, structure, and purpose.”11 Solutions Congress needs to enact real wetlands protection legislation immediately. It needs to steer away from this permit system under the CWA, and rather than creating legislation that allows destruction, create something that prevents such. The permit system is not effective. The Corps approves more than 90 percent of all applications for permits. A place to look for guidance would be the international treaty, Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention.)12 The treaty attempts to “stem the progressive encroachment on and loss of wetlands now and in the future.” The treaty states that the contracting parties should implement planning to promote conservation, and wise use of the wetlands is included on the list. New federal legislation should take this a step further by adding specific tools for promoting conservation and wise use, such as a no-build, no-fill designation for all wetlands. The treaty requires “wise use” of any wetland a country lists, but does not describe what “wise use” means, or entails. A federal statute should include this type of provision, but give a precise definition of wise use that would not allow any building or filling that would damage a wetland. In addition to federal legislation, states need to enact their own wetlands protection statutes. At the outset, there are several problems with state legislation. First, states do not have the same incentive to protect wetlands as does the federal government. In fact, states are more inclined not to have wetlands protection laws. When a neighboring state has provisions in place that the other does not, the other state has a crucial business advantage. States can use this to attract a business to their state. A federal statute would put each state on equal footing in attracting business. Second, even if a state enacts legislation, the legislation will not be the same across the board. If every state enacts legislation, it is quite possible that there would be 50 different regimes. (even though it is unlikely all 50 states would enact the legislation). Some wetlands will be more protected than others, when they all warrant protection. Leaving this matter to state legislation suggests that the matter could be left without legislation if the state finds that is in its best interest. This should not be an option. The CWA is not sufficient to curtail the erosion of America’s wetlands. Congress needs to step in and enact real wetlands protections, states need to enact wetlands protection statutes, and the Corps needs to work with the EPA to create new regulations that will best provide protection for the wetlands. Endnotes 1. S.C. Code Ann. § 48-39-10 – 48-39-360 (2005). 2.Ross B. Plyer, Protecting South Carolina’s Isolated Wetlands in the Wake of Solid Waste Agency, 53 S.C. L. REV. 757, 768 (2002). 3. Welcome to the I-73 project: http://www.i73inS.C.com/ (last visited Feb 12, 2006) . 4. 126 S. Ct. 2208 (2006). 5. Id. at 2212-2213. 6. Robert Meltz and Claudia Copeland, Congressional Research Service, The Wetlands Coverage of the CWA is revisited by the Supreme Court: Rapanos and Carabell, Report RL 33263 (Feb. 2, 2006). 7. Id. 8. Rapanos, 126 S. Ct. 2208 (2006). 9 Id. at 2237. 10. Id. at 2244. 11. Id. at 2246. 12. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Dec. 21, 1975, T.I.A.S. No. 11084, 996 U.N.T.S. 243. SandBar 6.2
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Project Jeopardizes South Carolina Wetlands

April S. Williams

April is a third-year law student at the Florida Coastal School of Law. The views expressed herein are those of the author and do not necessarily reflect the views of the Sea Grant Law Center, NOAA, or any of its sub agencies.

The United States is home to over 100 million acres of wetlands, 4.6 million of which are isolated wetlands of South Carolina. Congress has proposed a new interstate to run from Michigan to Myrtle Beach, South Carolina. The South Carolina Department of Transportation’s (DOT) chosen route will affect a minimum of 384 acres of wetlands scattered up and down the preferred alternative. Protection for these wetlands that serve so many important functions is insufficient, and it is time to enact real protections.

Since the recent Rapanos v. United States decision, and the further erosion of wetlands regulations, section 404(b) of the Clean Water Act (CWA) is not adequate with respect to protection of isolated wetlands. Congress needs to enact a statute specifically tailored to protect such wetlands, South Carolina needs to immediately enact an isolated wetlands protection statute, and the U.S. Army Corps of Engineers (Corps) needs to work on a case by case basis, and, along with the EPA, promulgate new definitions and regulations to protect wetlands.

South Carolina’s Wetlands
Wetlands have been shown to slow water momentum, reduce flood heights, and allow for ground water recharge. This is especially important in hurricane-prone South Carolina, given the ability of wetlands to store floodwaters and reduce property damage and loss of life. One acre of wetland can store up to 1.5 million gallons of floodwater. One reason floods have become more costly is that over half of the wetlands in the U.S. have been drained or filled.

Wetlands also serve as water filtration systems by removing nutrients and pollutants from water before it leaves the wetland. Storm water and wastewater treatment facilities are sometimes designed from wetlands due to the ability of wetlands to filter water. Wetlands also serve as fisheries and wildlife habitats, and provide recreation. Having such an important role in the environment, wetlands need protection against those who want to build on and destroy them, specifically the isolated wetlands in the path of 1-73.

South Carolina’s most comprehensive wetlands statute to date is the “Coastal Tidelands and Wetlands Act.”1 However, this statute only protects “critical areas,” and leaves out many acres of South Carolina wetlands. It defines “critical areas” as coastal waters, tidelands, beaches, or beach/dune systems. It also states that South Carolina may issue permits for “erosion and water drainage structure . . . as it may deem most advantageous to the State for the purpose of promoting the public health, safety and welfare . . . ” This permit system leaves a loophole for the state to grant permits when advantageous to the public welfare. Also there is no protection for isolated wetlands or basically any inland wetlands. The Pollution Control Act indirectly protects South Carolina wetlands. It gives the Department of Health and Environmental Control (DHEC) the power to regulate pollution and maintain water quality, but just refers to “waters,” not “wetlands,” “implying they are not covered by the act.”2

I-73 Project
Interstate 73 is a proposed road that will provide a direct route for the northern states to the coast of South Carolina. The primary goals of this project are system linkage and economic development. The DOT wants to provide a connection between Interstate 95 and the Myrtle Beach region, and “enhance economic opportunities and tourism in South Carolina.”3 The DOT is currently sending out engineers and scientists to determine what wetlands could be filled, and which should be preserved. The DOT is not sure yet which wetlands will be bridged and which will be filled, but, if filled, they will have to obtain a permit first. A final Environmental Impact Study is to be released in the summer of 2007.

In the meantime, the South Carolina wetlands that are at stake on the proposed path for Interstate 73 must be protected. The momentum favors constructing this interstate rather than new legislation to protect wetlands. Therefore, the citizens of South Carolina need to oppose this new road’s interference with wetlands. Citizens need to demand that a more extensive EIS be done, and that bridges take precedence over filling regardless of the additional cost. Also a possible citizen suit under the CWA might be viable, and perhaps result in an injunction, at least until further legislative action is taken.

South Carolina needs to enact a real isolated wetlands protection statute. It needs to work with the federal government in enacting real wetlands legislation by expanding the protections to any water or wetland not covered by federal law. The new statute should allow construction only in the direst circumstances, mandating judicial approval for any such permit.

Federal Protection
In a culmination of wetlands jurisdictional cases, in 2006 the Supreme Court heard Rapanos v. U.S. Army Corps of Engineers.4 The issue was whether the Corps had jurisdiction over non-navigable waters. The Corps’ jurisdiction rested on whether the waters were considered adjacent to navigable waters and what kind of hydrological connection must be present for a water to be considered adjacent. The case resulted in a plurality opinion that left many questioning how to apply the ruling. Many circuit courts have chosen to follow Justice Kennedy’s concurrence.

Justice Scalia held that the term navigable waters included “only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water,” and that adjacent waters are only those in which “a continuous surface connection exists between it and navigable water.”5 He narrowed the definition of “navigable waters” to waters that are in fact navigable. Congress defined “navigable waters” as “waters of the U.S.” so that actual navigability would not be an issue.6 According to the legislative history, the phrase “waters of the U.S.” was to be given “the broadest possible constitutional interpretation.”7 Ultimately, Justice Scalia set out a two-prong test to determine whether adjacent water is covered by the CWA. First, the adjacent channel must contain waters of the United States (i.e., relatively permanent body of water connected to traditional interstate navigable waters); and second, the wetland must have a continuous surface connection with that water. This is a very strict test.

Justice Kennedy’s concurrence advocated for a “significant nexus” test, which would be less narrow than the idea promoted by Justice Scalia. He held that the Corps should develop guidelines to determine what kind of proximity would satisfy the “significant nexus” test. This is the same interpretation most of the appellate courts follow. Justice Kennedy would defer to the Corps regulations, and rejected Justice Scalia’s claim that only “permanent, standing or flowing waters are federally protected.” He also wrote the wetland in question need not have a “continuous surface connection” to navigable water, because they can still have “significant effects” on water quality, and the ecosystem, regardless of how strong or tenuous their connection.8 Justice Kennedy wrote that wetlands are areas that are inundated or saturated with water at a “frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”9

His opinion went on to attack the two limitations that the plurality opinion put on the CWA. First, he said that the “continuous flow” requirement does not make sense in a statute “concerned with downstream water quality,” because small continuous trickle would be covered, but “torrents thundering at irregular intervals” would not. According to Justice Kennedy the second limitation Justice Scalia imposed is the “exclusion of wetlands lacking a continuous surface connection to other jurisdictional waters.”10 Justice Kennedy wrote that Justice Scalia’s opinion is “inconsistent with the [CWA’s] text, structure, and purpose.”11

Solutions
Congress needs to enact real wetlands protection legislation immediately. It needs to steer away from this permit system under the CWA, and rather than creating legislation that allows destruction, create something that prevents such. The permit system is not effective. The Corps approves more than 90 percent of all applications for permits.

A place to look for guidance would be the international treaty, Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention.)12 The treaty attempts to “stem the progressive encroachment on and loss of wetlands now and in the future.” The treaty states that the contracting parties should implement planning to promote conservation, and wise use of the wetlands is included on the list. New federal legislation should take this a step further by adding specific tools for promoting conservation and wise use, such as a no-build, no-fill designation for all wetlands. The treaty requires “wise use” of any wetland a country lists, but does not describe what “wise use” means, or entails. A federal statute should include this type of provision, but give a precise definition of wise use that would not allow any building or filling that would damage a wetland.

In addition to federal legislation, states need to enact their own wetlands protection statutes. At the outset, there are several problems with state legislation. First, states do not have the same incentive to protect wetlands as does the federal government. In fact, states are more inclined not to have wetlands protection laws. When a neighboring state has provisions in place that the other does not, the other state has a crucial business advantage. States can use this to attract a business to their state. A federal statute would put each state on equal footing in attracting business.

Second, even if a state enacts legislation, the legislation will not be the same across the board. If every state enacts legislation, it is quite possible that there would be 50 different regimes. (even though it is unlikely all 50 states would enact the legislation). Some wetlands will be more protected than others, when they all warrant protection. Leaving this matter to state legislation suggests that the matter could be left without legislation if the state finds that is in its best interest. This should not be an option.

The CWA is not sufficient to curtail the erosion of America’s wetlands. Congress needs to step in and enact real wetlands protections, states need to enact wetlands protection statutes, and the Corps needs to work with the EPA to create new regulations that will best provide protection for the wetlands.

Endnotes
1. S.C. Code Ann. § 48-39-10 – 48-39-360 (2005).
2.Ross B. Plyer, Protecting South Carolina’s Isolated Wetlands in the Wake of Solid Waste Agency, 53 S.C. L. REV. 757, 768 (2002).
3. Welcome to the I-73 project: http://www.i73inS.C.com/ (last visited Feb 12, 2006) .
4. 126 S. Ct. 2208 (2006).
5. Id. at 2212-2213.
6. Robert Meltz and Claudia Copeland, Congressional Research Service, The Wetlands Coverage of the CWA is revisited by the Supreme Court: Rapanos and Carabell, Report RL 33263 (Feb. 2, 2006).
7. Id.
8. Rapanos, 126 S. Ct. 2208 (2006).
9 Id. at 2237.
10. Id. at 2244.
11. Id. at 2246.
12. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Dec. 21, 1975, T.I.A.S. No. 11084, 996 U.N.T.S. 243.

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