South Carolina Supreme Court Expands DHEC’S Regulatory Authority Over Isolated Wetlands Throughout The State Under The Pollution Control Act

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In the July 2011 decision Georgetown County League of Women Voters v. Smith Land Co., Inc., the South Carolina Supreme Court held that the Department of Health and Environmental Control (“DHEC”) has jurisdiction to regulate isolated wetlands under the South Carolina Pollution Control Act (“SCPCA” or “Act”), an expansion of DHEC’s regulatory authority over isolated wetlands throughout the State, beyond the eight “coastal zone” counties governed by the coastal management program organized pursuant to the Coastal Zone Management Act (“CZMA”).

In the decision, Smith Land Company (the “Developer”) began developing a lot on Pawleys Island in 2007. At the time, there was roughly 0.19 acres of wetlands on the property, which included vegetation and a pond. The Developer notified the U.S. Army Corps of Engineers (“Corps”) of its plans to fill the pond and surrounding wetlands and the property was delineated as “isolated wetlands” by the Corps. Relying on the United States Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), which held that the Corps’ jurisdiction under the Clean Water Act did not extend to isolated wetlands (those bodies of water not adjacent to open water), the Developer notified DHEC of its plans, but did not seek or obtain a permit from the agency.

Thereafter, in 2009, the Georgetown County League of Women Voters (“League”) filed suit against the Developer under the SCPCA, arguing that the Developer failed to comply with its legal obligations under the Act in failing to obtain a permit before filling the isolated wetlands on the property. The League sought a declaration from the lower court that the Developer had unlawfully filled the wetlands, and an injunction requiring it to perform certain restoration work.

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