Administrative – Public Trust Doctrine – Permit Application

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The South Carolina Department of Health and Environmental Control properly granted respondent’s permit application. The issues of stormwater runoff, a polluted urban creek, and tidal flooding combined to create an extremely rare circumstance where it is in the public’s interest to approve the permit to fill in Gadsden Creek.

We affirmed the administrative law court’s decision to uphold the South Carolina Department of Health and Environmental Control’s grant of respondent’s permit application.

The South Carolina Department of Health and Environmental Control (DHEC) granted a permit for the WestEdge Foundation to fill in and build a mixed-use development on top of 3.9 acres of saltmarsh and creek located on the west side of the City of Charleston. The administrative law court (ALC) affirmed DHEC’s grant of the permit, finding that, while the saltmarsh and creek are critical tidal lands, they partially exist over a landfill. The ALC concluded that tidal and stormwater flooding often inundates the surrounding streets and neighborhoods with polluted water, and thus, DHEC acted within its discretion in granting the permit.

WestEdge, a collaboration of the Medical University of South Carolina (MUSC) Foundation and the City of Charleston, applied to DHEC for a permit to partially dredge the landfill under Gadsden Creek to install stormwater pipes, as well as to cap Gadsden Creek to eliminate flooding and create buildable land for mixed-use development. The project proposal included the retention of a portion of Gadsden Creek as a nature-viewing water feature, but this remnant would not be tidally influenced. Because the application required elimination of 3.9 acres of tidally influenced wetlands, WestEdge included a mitigation plan, consisting of WestEdge’s purchase and restoration of 20 acres of tidelands at Kings Grant, a former golf course located fourteen miles upstream from WestEdge and constructed “within tidally influenced wetlands abutting the Ashley River.”

DHEC granted WestEdge’s permit application. Friends of Gadsden Creek requested a final review conference of the permit, which was denied, and then a contested case hearing with the ALC, which was granted. After hearing testimony regarding the history of Gadsden Creek, testimony from community members who support keeping the creek, and testimony from competing experts about the feasibility of restoring the creek, the ALC affirmed DHEC’s grant of WestEdge’s permit.

We held the evidence submitted at the contested case hearing substantially supports the ALC’s conclusion that DHEC properly granted WestEdge’s permit application. We found the issues of stormwater runoff, a polluted urban creek, and tidal flooding combined to create an extremely rare circumstance where it is in the public’s interest to approve the permit to fill in Gadsden Creek.

Affirmed.

Friends of Gadsden Creek v. South Carolina Department of Health and Environmental Control (Lawyers’ Weekly No. 013-003-24, 6 pp.) (Per Curiam) Appealed from Charleston County (Ralph King Anderson, III, ALJ) Benjamin David Cunningham and Lauren Megill Milton, both of S.C. Environmental Law Project, of Pawleys Island, for appellant; Mary Duncan Shahid, of Nexsen Pruet, LLC, of Charleston; Kirsten Elena Small, of Maynard Nexsen, PC, of Greenville; and Michael Smoak Traynham, of Maynard Nexsen, of Columbia, for respondent WestEdge Foundation, Inc. Sara Volk Martinez and Bennett W. Smith, both of South Carolina Department of Environmental Services, of Columbia; and Bradley David Churdar, of Charleston, for respondent South Carolina Department of Health and Environmental Control. South Carolina Supreme Court Unpublished