Wetlands rulings by the Army Corps of Engineers are hit and miss, an environmental advocate suggests. That's why the Southern Environmental Law Center was able to stop a recent permit to develop the Pine Hill tract in Berkeley County.
The Army Corps' district engineer says its decisions are the "ground truth" as its inspectors see it.
When the permit to develop the 2,000-acre Pine Hill tract was rescinded in April, the reversal was the latest in a run of unusual rulings by the federal regulator. They have raised eyebrows among environmental and development groups because the agency puts a premium on standing by its decisions so that property owners can rely on them.
Environmentalists say the reversals are changing the game after two decades of losing fights against the development of freshwater wetlands along the coast. The wetlands flow to streams that form the coastal waters, and studies have shown runoff pollution is beginning to deteriorate water quality in urban headwater tidal creeks.
The agency's decisions are considered the last permit hurdle to developing wetland areas.
Army Corps officials say nothing has changed.
'No wholesale change'
Pine Hill is an old timber plantation down a rural back road along Black Tom Bay.
The Army Corps canceled a ruling that 493 acres of wetlands on the tract are isolated -- or not connected to a stream -- after the Southern Environmental Law Center , the Coastal Conservation League and the National Wildlife Federation in February filed a required 60-day notice that they would sue.
The environmental groups found historical records, starting with a 1949 aerial photograph, that showed a pattern of wetlands flowing into nearby Wassamassaw Swamp, and eventually the Ashley River. They turned in the findings with the intent-to-sue notice.
Pine Hill developer Ben Gramling asked the Army Corps to rescind the permit, wanting to work with the environmental groups "to make sure we have the right situation," he said.
The reversal means development that's planned on the tract must be regulated to meet federal wetlands requirements.
It joins a surprising March ruling that 6.5 acres of wetlands are not isolated on a tract planned for development near the iconic Angel Oak on Johns Island. The Army Corps earlier had ruled twice that those acres were isolated, but under an environmental group's pressure, reversed the decision on a new finding that the wetlands drained into a roadside ditch during rains.
The Army Corps also reversed its ruling that 37 wetland acres were isolated off U.S. Highway 17 in Georgetown County, after the S.C. Supreme Court in February overturned lower courts in deciding that state regulators do have the authority to regulate the tracts.
That pivotal Spectre ruling, named after the development company, was considered the game-changer by environmentalists, who were set back on their heels by two U.S. Supreme Court rulings earlier this decade. The Army Corps district commander says nothing has changed in how the federal regulator goes about its business.
"There's no wholesale change. It's always been our policy that, if new information comes to light on a specific permit, we can re-evaluate," Army Corps Lt. Col. Jason Kirk said. But the option hasn't often been used. Even with the recent run of reversals, less than one percent of the 2,500 permits the Army Corps decides on each year get reversed, he said.
The "small pea," Kirk said, is making decisions "based on the facts as we know it. The big pea is that public trust holds true to the Army Corps' ability to implement the Clean Water Act."
The Southern Environmental Law Center challenged the Pine Hill tract from a review of recent permit decisions because the 5,000-acre tract was so large it "really jumped out at us," said Chris DeScherer, the law center's attorney. "It appears to us that the way they have drawn isolated wetlands (on the review) gives the illusion the wetlands are isolated" when they are not, he said.
Kirk adamantly denies that.
"Our employees would not be doing anything other than the ground truth" based on imagery and site evaluation, he said.
'Erring on wrong side'
In 2001, after Clean Water Act rules were challenged by property owners and development interests, the U.S. Supreme Court ruled the federal government had no jurisdiction over freshwater wetlands that weren't adjacent to a larger body of water. Then, in 2006, the Court decided the Army Corps had overreached in a ruling on wetlands on private property, but didn't specify where the agency's authority ended.
In South Carolina alone, more than 300,000 acres are freshwater wetlands, and developers quickly began pushing regulators to fill more marginal land. Without a clear legal measuring stick, state regulators were making case-by-case decisions, getting challenged in court, giving more and more ground.
"With the confusion it created, the Army Corps is acting in an inconsistent and confused manner. The calls became so difficult and complicated the (Army) Corps began erring on the wrong side," said Jim Murphy, National Wildlife Federation's attorney.
Kirk said flatly that the Army Corps issued guidelines to districts after both of the Supreme Court rulings.
"Yes, there is clear guidance, applied to every particular tract of land based on that particular tract of land," he said. The 2006 ruling did change some things, but the Army Corps reworked its permitting to "facilitate consistency," he said.
The law center and wildlife federation say specific regulations are needed to clean up the confusion.
"We certainly can't shadow the Corps for all of these rulings. If there isn't a legislative fix, more wetlands could be lost," Murphy said.