On July 12, 2021, WestEdge Foundation, Inc., a non-profit entity created by the City of Charleston and the MUSC Foundation, obtained a Critical Area Permit and Water Quality and Coastal Zone Consistency Certifications from the South Carolina Department of Health and Environmental Control allowing the filling and excavation of 3.923 acres of critical area tidelands known as Gadsden Creek to increase the already developable uplands to over 30 acres for a residential and commercial development.
In response, on October 1, 2021, we filed a request for a contested case in the Administrative Law Court to challenge this improper and unlawful critical area permit and the accompanying certifications on behalf of the grassroots organization Friends of Gadsden Creek.
“We are alarmed that the state agency charged with safeguarding our precious coastal tidelands issued a permit that allows for the complete destruction of a tidal creek so that slightly larger hotels, condos and office buildings can be built,” staff attorney Ben Cunningham, who is representing Friends of Gadsden Creek in the challenge.
A contested case hearing was held in June of 2022 in Administrative Law Court in Columbia. Judge Anderson ruled on Monday, December 5, 2022 to uphold a permit issued to WestEdge Foundation, allowing it to proceed with filling and building over Gadsden Creek, a 3.925-acre tidal creek – one of the last remaining on the Charleston peninsula.
"We are disappointed by the Court's ruling and respectfully disagree with many of the conclusions and analyses," said Ben Cunningham, SCELP staff attorney. "We are glad the Court noted that Friends of Gadsden Creek has some valid concerns regarding the proposed project and also rejected the rationale DHEC employed to approve the permit in the first place."
“Friends of Gadsden Creek looks forward to working with the South Carolina Environmental Law Project to appeal the December 2022 ruling,” said representatives from Friends of Gadsden Creek. “We reject WestEdge’s paternalistic claims that presume to know what the community wants and needs. Friends of Gadsden Creek continues to stand with the community in saying NO to this plan.”
The Legal Issue
In issuing the permit and certifications, DHEC ignored the plain language of critical area statutory policies and its own critical area regulations. It also failed to apply the controlling policies of the South Carolina Coastal Zone Management Program document and its water quality regulations.
The critical area regulations expressly forbids “[d]redging and filling in [critical area] wetland[s]” unless the proposed “activity is water-dependent and there are no feasible alternatives[.]” There is no question the structures at issue are not water-dependent and there are feasible alternatives.
Among the several policies of the CMP that this project violates, are the following objectives:
- To protect and sustain the unique character of life on the coast that is reflected in its cultural, historical, archeological, and aesthetic values;
- To promote increased recreational opportunities in coastal areas and increased public access to tidal waters in a manner which protects the quality of coastal resources and public health and safety;
- To encourage the inland siting of facilities which are not water-dependent
- And to protect and, where possible, to restore or enhance the resources of the State’s coastal zone for this and succeeding generations.
This project violates all of these objectives. The unique character of the Gadsden Green area that enjoys Gadsden Creek would not be protected or sustained. The public access to tidal waters would be eliminated. The approval would encourage removal of public trust land and coastal resources rather than inland siting of development that is not water-dependent. Finally, the elimination of Gadsden Creek would remove a coastal resource now and forever so that no future generations could have the opportunity to use and enjoy it. There would be no opportunity for restoration or enhancement once the critical area tideland is filled.
Charleston Must Face its Past for its Future
The City of Charleston used the salt marsh and tidelands in this area as a landfill and received an after-the-fact permit from the Army Corps of Engineers in 1971. However, the City has evidently not complied with the permit requirements to maintain the landfill cap.
Gadsden Creek has over the past almost 50 years, provided essential fish habitat and a habitat area of particular concern because tidal creeks like Gadsden Creek provide habitat for several species of commercial and recreational importance like red drum, southern flounder, spotted seatrout and blue crab. In its comment letter on this project, South Carolina Department of Natural Resources similarly concluded that “[t]idal creek systems provide critical feeding grounds, spawning areas, and nursery habitats for many species of fish shellfish, birds, waterfowl, and mammals.”
Significantly, in the face of accelerating sea level rise, in a City that is already straining under the spiraling costs of overdue capital investments required to handle today’s tidal and storm flooding, the casual paving over of one of the last tidal creeks on the peninsula is at best shortsighted and at worst belies the City’s claims of advancing climate adaptation and resiliency in the third oldest city of the nation.
Friends of Gadsden Creek has long opposed the destruction of the creek. In addition to concerns about flooding, loss of habitat and other aesthetic injuries, the group says the WestEdge project continues an egregious pattern of taking.
“Given the City of Charleston's history of abuse, exploitation, and neglect of Gadsden Creek and the Gadsden Green community, we want to see this creek preserved and enhanced as a public resource and as a marker of history. The revitalization of Gadsden Creek would be but one step in a long path the City of Charleston must take in order to account for decades worth of harm inflicted on Gadsden Green residents and their surrounding natural environment,” the group said.
This WestEdge project is a threat not only to the only tideland that remains for a longstanding African American community that once used the surrounding marshes for a variety of purposes, including baptisms, but to the continued existence of the community itself.
Many decades ago, the City of Charleston forced certain residents to move so that it could pursue other development. Later it created a dump on the doorstep of those who remained and then half-heartedly covered it but failed to keep the trash underground. The trash has become increasingly uncovered and there are concerns about toxins in Gadsden Creek and methane in the area that DHEC has found in “explosive” levels in the past.
“The City of Charleston previously filled dozens of acres of coastal tidelands that this community used and enjoyed with over a million tons of waste. It is disturbing that instead of trying to atone for decades of neglect of this community and Gadsden Creek itself by preserving and beautifying the creek, the City of Charleston has endorsed a plan that will, yet again, deprive this community of a unique resource,” Cunningham said.
In addition to concerns about flooding, loss of habitat and other aesthetic injuries, there is also a fear among some in the community that once the extensive development occurs, which promises to place hotels, condominiums and office buildings immediately across the street from their community, further gentrification will follow.
There is a concern that the public housing that has been in existence for decades, called Gadsden Green, would be flooded and the flooding will be used as an excuse to remove the residents, tear down the public housing and further gentrify the area.
Residents of the Westside community located next to the proposed development have told us they are concerned about an increased risk of flooding due to the addition of expansive impervious surfaces to the area.
The City of Charleston has a duty to its residents to clean up its trash when it pollutes public trust land in their areas. DHEC has a legal duty to follow its own regulations, policies and the controlling statutes.