Ruling victory for wetlands

After two decades of losing battles against the development of freshwater wetlands along the coast, conservationists won a war this week.

The S.C. Supreme Court upheld that state regulators have permitting authority over the disputed tracts. The decision settles a dispute that has roiled through the Lowcountry.

Meanwhile, the Southern Environmental Law Center named a Berkeley County wetland slated for development as one of its top "most endangered places in the South."

The court's decision stops the bleeding for state regulators that began in the 1990s when developers pushing to fill more marginal land successfully challenged the regulations as based on a management policy that was issued as a guideline, not a rule. After a series of losses in court, state regulators making permit decisions were swamped by lawsuits and began settling disputes out of court.

The decision requires developers to win environmental permits in order to fill. Stan Barnett, a lawyer for a business group that had challenged state authority, said he had little choice but to accept the new decision.

The ruling could affect decisions on controversial developments, such as a plan to develop 42 acres alongside the cherished Angel Oak on Johns Island; the tract includes 4 acres of isolated wetlands. It gives new weight to protection efforts for more than 300,000 acres of Carolina Bays in the eight coastal counties.

The bays are mysterious, oval-shaped wetlands that pock the entire coastal plain in clusters with an eerie symmetry, each turned northwest to southeast; they hold plants found nowhere else in the world.

Freshwater wetlands are swamps or pools not considered part of a stream flow. In the late 1990s, they became a wrestling mat in the ongoing property-rights battle between development and environmental interests across the nation.

In the Lowcountry, the issue hit a flash point in 2000 when a Berkeley County partnership sued to build a racetrack on 60 acres, including wetlands near Beidler Forest. Real estate and environmental groups jumped into the fight that went to the S.C. Supreme Court. The developers eventually won.

"It's removing a cloud that's been hanging over the management program for a long time now," said Amy Armstrong, a South Carolina Environmental Law Project attorney who argued the case.

"It's certainly gratifying," said Thom Berry, S.C. Department of Health Environmental Control media relations director. "This has been a long, complicated process, and we consider it a complete victory for the coastal management program and our ability to adequately protect isolated wetlands along the coast."

Meanwhile, a 493-acre wetlands tract in Berkeley County near Black Tom Road joined the Catawba-Wateree river basin as South Carolina sites on the list put together by the nonprofit legal advocate. The highly developed and utility-run basin is the focus of a current "water wars" dispute between South Carolina and North Carolina over water withdrawals.

In 2007, the U.S. Army Corps of Engineers signed off on the Berkeley County acreage, saying it was an isolated wetland and not part of its jurisdiction. Chris Scherer, a senior attorney with the center, said the case is an example of an ongoing national battle over whether the Clean Water Act gave the Army Corps jurisdiction over isolated wetland tracts.

"It's a staggering amount of wetlands to write off with one stroke of the pen. In other states, the Army Corps doesn't decide on that much acreage in a year. It represents the type of development that's going on every day and those acreages add up," he said.

"We made our call. We did our job," said Glenn Jeffries, of the Army Corps.

Reach Bo Petersen at 937-5744 or bpetersen@postandcourier.com.