Deertrack Golf, Inc., owns a golf course in a mature Surfside Beach development known as Deerfield Plantation. Deertrack has entered into a contract to sell the golf course property to Bill Clark Homes. Bill Clark proposes to develop 287 lots on half of the golf course property (the other half will be developed later). The POA’s members are homeowners in a single-family home development that is surrounded by the golf course property. Most of the homes border the golf course. There is a long history of problems with flooding, and it appears that both the golf course and the residential development were built on former wetlands. DHEC/OCRM issued a storm water permit and coastal zone consistency certification for the development project. We have appealed for the POA. Pretrial discovery was extensive with wetlands experts, engineers and fact witnesses being deposed.

The case was tried on March 10-12, 2009, before Administrative Law Judge John McLeod. The key issues were: (1) does the property contain wetlands and waters of the state; (2) if there are wetlands and waters of the state on the property, can those wetlands and waters be filled and turned into stormwater ponds for the new development; (3) will the new development exacerbate long-standing flooding problems within the Deerfield Phase IIB neighborhood. Judge McLeod issued his decision on June 9, 2009. He ruled that the existing ponds on the property are “waters of the State” and that they are all connected to the ocean. But he nevertheless ruled in favor of the developers on all other issues and affirmed the permits. We filed a motion for new trial and for altering and amending Judge McLeod’s order. The motion had argued that the trial was fundamentally unfair because the judge refused to allow us to present evidence that the wetlands and waters were “waters of the United States” but he accepted evidence from the other parties and made findings and conclusions on this issue. We also argued that the judge had erred in ruling that although the ponds and other waters on the site are “waters of the State,” the state storm water regulations allow them to be filled and altered despite provisions in the state water quality standards that prohibit these alterations. Unfortunately the motion was denied. We have also filed two other actions for the POA: (1) a suit in Federal District Court in Florence, seeking to overturn the US Army Corps of Engineers’s determination that the property contains no “waters of the United States;” and (2) a suit in state court in Horry County, contesting county zoning and storm water approvals of the project, and seeking a declaratory judgment on easement rights held by the POA and its members.

Client: Deerfield Plantation Phase II Property Owners Association Other parties: Deertrack Golf, Inc., Bill Clark Homes of Myrtle Beach, LLC, and DHEC/OCRM Attorneys: Mary Shahid of McNair Firm for Deertrack Golf Stan Barnett and Ellison Smith for Bill Clark Homes Elizabeth Dieck for DHEC/OCRM

In the federal Clean Water Act suit, the parties agreed to a Motion for Voluntary Remand. The motion was supported by an affidavit from Tommy Fennel with the Corps who said that his on site observations that the waters and wetlands are connected to the Atlantic Ocean warrant additional consideration as to the Corps’ jurisdiction. Judge Bryan Harwell issued an Order remanding the jurisdictional determination back to the Corps to allow it to reconsider its original determination in light of the new information. Now that the Corps is reconsidering its original jurisdictional determination (JD), we are preparing to file a motion staying the appeal in the Court of Appeals on the basis that a new JD would render that state proceeding moot. To date we are still waiting on new Corps decision; the appeal has been stayed pending the Corps’ decision.

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