A controversial development planned near the famed Angel Oak tree on Johns Island was dealt a major setback this week when the U.S. Army Corps of Engineers reversed a key wetlands decision involving the property.
Opponents of the Sea Island Planned Unit Development applauded the corps' ruling Wednesday, while the developer expressed frustration but said the project will continue to move forward.
The development planned near the intersection of Maybank Highway and Bohicket Road involves three commercial buildings and several hundred apartments on 42 acres abutting a small city of Charleston park that features the massive Angel Oak tree.
The corps ruled in 2002 and again in 2008 that 6.5 acres of wetlands on the property were "isolated" and not subject to federal jurisdiction under the Clean Water Act. On Monday, the corps reversed itself, in a letter claiming federal jurisdiction, which means the developers' plan to fill more than 3 acres of wetlands would need a federal permit.
"We are committed to moving forward, despite some frustration," developer Robert DeMoura said. "I am just trying to understand the decision."
Jurisdictional decisions usually remain unchanged for five years, unless new information arises. The corps said the new information in this case was a roadside ditch that hadn't been noted previously, which was brought to the corps' attention by a concerned citizens group.
The ditch leads to Church Creek, a navigable waterway. That's significant because if water flows from the wetland area to the ditch and then the creek, that means the wetlands are connected to a navigable waterway, and therefore, subject to the Clean Water Act.
"The Corps of Engineers decided we were right, and that (the wetlands) are connected to Church Creek, so the developer will have to follow more stringent federal requirements," said Samantha Siegel, co-founder of savetheangeloak.org. "It will protect (the wetlands) more, and it will probably delay the development by a year, and we think any delay would be a good thing."
From mid-December to mid-February, water was observed flowing continuously from the wetland area to the ditch, according to a letter from Lt. Col. Jason A. Kirk, commander of the corps' Charleston District.
"The monitoring and documentation of this sustained offsite water flow represents new information that was not evaluated as part of our initial determination," he wrote.
Kirk's letter described the rainfall in December as "typical of the season," and on that point, DeMoura disagrees.
"We had incredible rains during that time, and had a water main burst on the property on Jan. 18," DeMoura said. "Our assumption is that the water main was leaking, and we are still trying to confirm that."
The Post and Courier reported on Feb. 4 that the Charleston area had received 17 inches of rain since Dec. 1, which was 10 inches above average.
DeMoura said he hasn't yet received the letter detailing the reasons for the change in jurisdiction. Jurisdictional decisions can be appealed to the corps' regional office in Atlanta. Dana Beach, director of the Coastal Conservation League, said he sees little chance that the corps would approve a permit to fill the wetlands.
"It's just all around a great thing, and I think Samantha deserves a lot of credit," he said. "For a government agency to admit they have made a mistake is a very noble thing."
The development has already been through most of the planning and zoning approval process in Charleston, and was seeking final approval on design details.
"Well, obviously that will change the plan," said Tim Keane, director of Charleston's Department of Planning, Preservation & Sustainability, after learning of the corps' ruling.
Keane, who was a consultant on the project less than a year ago while in private practice, said city officials will have to wait and see how the developer responds to the ruling.
Reach David Slade at 937-5552 or dslade@postandcourier.com.
