Environmental – Administrative Authority – Savannah River Project – DHEC Negotiation

Savannah Riverkeeper v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 010-105-12, 12 pp.) (Costa M. Pleicones, J. & Jean Hoefer Toal, Ch.J., writing for the majority on separate issues) (John W. Kittredge, J., dissenting) S.C. S. Ct.

Justice Pleicones’ Holding: The plain language of S.C. Code Ann. § 54-6-10 gives the Savannah River Maritime Commission the responsibility and exclusive authority to represent South Carolina in all matters pertaining or collaterally related to dredging in the Savannah River for purposes of navigation by ocean-going container or commerce vessels, and certification under § 401 of the Clean Water Act (401 Certification) for the Savannah Harbor Expansion Project (SHEP) fell within the scope of that authority. Thus, the S.C. Department of Health & Environmental Control (DHEC) acted in contravention of § 54-6-10 when it issued a 401 Certification.

Justice Pleicones would not address other issues decided by the majority in an opinion authored by Chief Justice Toal.

Additional Majority Decision

(Toal, Ch.J.) Because the DHEC Board acted in contravention of § 54-6-10 when it negotiated an agreement with the U.S. Army Corps of Engineers and the Georgia Ports Authority before issuing the 401 Certification requested for the SHEP, no deference is owed the DHEC Board’s decision. Because the Board’s decision incorporated the statutorily prohibited agreement, the DHEC staff’s denial of the Certification is now the final agency decision for purposes of contested case review. Consequently, the Certification is denied, and the contested case hearing pending in the Administrative Law Court is moot. Moving forward, any activity, including any settlement negotiations, concerning the Certification must be directed to the Commission.

Dissent

(Kittredge, J.) I would dismiss the grant of original jurisdiction as improvidently granted. The court is addressing an isolated legal question prematurely. The proper course is to stay our hand and let the many interrelated issues in this case be fully litigated before the ALC.