Did you see that the Supreme Court is being asked to pass a judgement on the Clean Water Act and its "Cloudy" language. These two items are related. And I agree a close watch needs to be kept.
"Language is stumbling block in protection of wetlands"
WASHINGTON -- Hazy language contained in a federal environmental law more than three decades old could cloud the future of South Carolina's 4.5 million acres of wetlands, including those in Beaufort County.
The Supreme Court heard oral arguments last week in two of the most sweeping challenges to the 1972 Clean Water Act, which allows the government to regulate discharges into the nation's "navigable waters." But vague language has left open interpretations of how far upstream the act can be applied.
Defendants in the cases, both based in Michigan, wanted to develop property on wetlands or tributaries connected to traditionally "navigable waters," such as rivers, bays or oceans.
They argued that their projects were built far enough away from environmentally fragile areas and would not adversely affect major rivers. They also said the law, if interpreted too broadly, could be applied to any storm drain or ditch that eventually runs into a major body of water.
The Bush administration, environmental groups and more than 30 state attorneys general, including Henry McMaster of South Carolina, have declared that any weakening of the Clean Water Act would put millions of acres of wetlands at risk throughout the country.
Although state and federal laws clearly protect saltwater wetlands closer to the coast, freshwater inland wetlands and canals in low-lying Beaufort County could be threatened if the court sides with the developers. Beaufort County has 16,000 acres of freshwater wetlands.
"Lots of conservationists throughout the state are holding our breath on this case," said Nancy Vinson, a water-quality manager with the Coastal Conservation League, a watchdog group. "If things go horribly wrong in the Supreme Court, we could see a lot more filling in of wetlands in South Carolina. In areas with high growth and a lot of low land, you could see a lot more flooding of neighborhoods and streets."
A freshwater wetlands bill was introduced in the S.C. Senate on Wednesday that aims to clarifying the state's control over wetlands.
"Last year and this year we've done a lot of work with the development community," said Christie McGregor, legislative director with the Coastal Conservation League. "It's been a compromise on both sides."
The two Michigan cases, Carabell v. United States and Rapanos v. United States, are the first major environmental challenges to face the court since the confirmation of Chief Justice John G. Roberts Jr. and Justice Samuel Alito. The court has heard all oral arguments and has the case under consideration; it is likely to rule before its term ends in early summer.
LOCAL RULES IN PLACE
If the court shrinks the Clean Water Act's reach, state and local laws may have to pick up the slack in protecting inland wetlands or streams. It's a job that Beaufort County is equipped to handle, said John Holloway, the county's natural resources planner.
"Jurisdictions and states that don't have as stringent of regulations are going to be the ones at risk," said Holloway, citing wetlands protections written into the county's zoning laws.
Developers are required to build around wetlands in most cases and to construct buffers between wetlands and building sites. Holloway said most developers are aware of the rules.
Hilton Head Island has adopted its own rules governing wetlands, requiring permits for any activity that affects them.
Bluffton community development director Marc Orlando said the town can protect wetlands, but it has nothing written in its zoning or development ordinances. He said the town is working on adding wetland rules to the ordinances.
Jim Mozley, president and CEO of the 20,000-acre Palmetto Bluff development in Bluffton, is well aware of the bureaucracy entailed in getting wetlands permits. Much of his project has been built with protections for 1,100 acres of wetlands within the 3,600-acre plot of Phase II of the project.
He agreed that the wetlands must be protected.
"Are there some wetlands that aren't productive? Yeah. Are there some mandated wetlands that are a little silly to preserve? Yeah," Mozley said. "There are exceptions, but wetland systems are critical to the quality of the environment, and we believe in preserving and buffering those."
Despite local enforcement efforts, Holloway said county officials rely on the federal government's definition of wetlands. If the Clean Water Act were weakened, the burden of defining wetlands could be passed on to local agencies, requiring more staff hours and positions.
INLAND WETLANDS AT ISSUE
A developer wishing to build on a coastal wetland must seek a permit from the Corps of Engineers. After corps review, the application goes to the state's Office of Ocean and Coastal Resource Management, which determines whether the plan complies with the Clean Water and the Coastal Zone Management acts.
Those safeguards are unlikely to disappear no matter how the court rules, state environmental groups said. But the biggest question mark is the fate of the inland freshwater wetlands, where federal jurisdiction is less clear-cut. According to state estimates reported to the Environmental Protection Agency in 2004, more than 4.1 million of its approximately 4.5 million acres of wetlands are fresh water.
One such case hit Beaufort County in 2002, when developer Tony Porter sued the state for denying him permits to develop the Villages at Burnt Church on 30 acres of isolated wetlands in Myrtle Park in greater Bluffton. In the suit, settled out of court, Porter said the state has no jurisdiction over wetlands not directly connected to a major navigable waterway.
Under the settlement, the developer was issued a stormwater-management permit that called for the preservation of more than 8 acres of isolated wetlands. The developer could impact 7.3 acres of wetlands and promised to create 7.3 acres of new wetlands off-site.
Jimmy Chandler, a lawyer with the South Carolina Environmental Law Project, said the state claims that all wetlands, salt or fresh, federal or state jurisdiction, are protected under the South Carolina Pollution Control Act. But that act doesn't explicitly mention "wetlands," leaving the state open to challenges from developers.
Whatever the Supreme Court decides this term, there is a good chance that the line between state and federal wetlands jurisdiction will change, said Blan Holman, an attorney with the Southern Environmental Law Center in Chapel Hill, N.C.
"(N)o matter what happens, South Carolina would be better off passing a law saying (which) wetlands are protected by federal jurisdiction." he said."
\"My idea of fast food is a mallard.\"- Ted Nugent
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Originally Posted by Tater
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