August 31, 2011

Regulation of Isolated Wetlands

Posted on August 31, 2011 by Thomas Lavender

While we know all too well what the U.S. Supreme Court concluded in the SWANCC and Rapanos with respect to the jurisdiction of the Army Corps of Engineers over isolated and adjacent wetlands, what was not before the Supreme Court was the status of non-jurisdictional, isolated wetlands.   By default, that issue remained within the purview of the states.  While some states already had express authority to regulated isolated, non-jurisdictional wetlands, others had not specifically addressed the matter.

Previously, South Carolina’s omnibus environmental statute, the Pollution Control Act, did not expressly address isolated wetlands, but did describe “waters of the State” rather broadly.  Nonetheless, South Carolina had not overtly attempted to exercise jurisdiction over isolated wetlands following SWANCC.  Recently, the South Carolina Supreme Court in Georgetown League of Women Voters vs. Smith Land Company, 2011 WL 268243 (S.C. July 11, 2011).  While the State environmental agency argued in its brief that it did not have the authority to require a permit for a small, isolated wetland in the center of a residential building site wetlands, the Court disagreed.  In that case, the lot owner, Smith Land, filled the lot and was sued by a number of local environmental groups arguing that the landowner failed to obtain required permits from the State for filling the isolated wetland. 

In Smith Land, the trial court granted summary judgment in favor of the property owner, and the S.C. Court of Appeals affirmed.  The S.C. Supreme Court granted certiorari, and on July 13, 2011, held that the State’s Pollution Control Act does extend regulatory authority over isolated wetlands.  The two significant holdings in the case found that the property owner was required to obtain a permit for the discharge of pollutants into the isolated wetland, which it held was within the scope of the statutory definition of “environment.”  Just as significantly, the Supreme Court held that the Pollution Control Act afforded the plaintiff a private cause of action to enforce the provisions of the Act, heretofore not previously addressed. 

This case is significant to the regulation of wetlands since, while there is a permit program in place for storm water discharges resulting from land-disturbing activities, there is no specific statutory or regulatory framework for immediately responding to requests for permits to fill isolated wetlands.  Interestingly, the majority of the Court left untouched the legitimate question of whether the plaintiffs even had standing to bring the action and whether the existing stormwater permit program that excludes land-disturbing activities below a certain threshold levels satisfied the requirement for a State permit exemption.  At this point, landowners in South Carolina have been left hanging in the balance with the implementation of a judicially-created regulatory program.



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