AWENDAW, SC – The Awendaw community’s fight against a dense, septic-dependent housing development continues.

Today, on behalf of Friends of Coastal South Carolina, the South Carolina Environmental Law Project filed a Petition for Extraordinary Writ with the South Carolina Supreme Court, asking the court to reinstate a stay, essentially a pause on the permit, that was lifted by Administrative Law Court (ALC) Judge Philip Lenski in mid-June. Lifting the stay allows developer Pulte Homes to begin construction despite the pending legal challenge to a stormwater permit and Coastal Zone Consistency Certification. If the Supreme Court grants the request for relief and reinstates the stay, construction activities could not proceed until the ALC holds a hearing and determines whether the permit and certification comply with the law.

“The stay acts as a safeguard for the due process rights of citizens to petition the government, obtain a hearing and secure administrative and judicial review. If the harm sought to be avoided through a permit challenge has already occurred, these rights are meaningless,” said Amy Armstrong, Executive Director of the South Carolina Environmental Law Project. “Protecting the status quo until the court can hear and decide the case is essential – otherwise a permit appeal would become moot before a judge could decide whether the permit is lawful.”    

The proposed development allows for approximately 208 homes on 182 acres on a property known as the White Tract, adjacent to the ecologically sensitive Cape Romain National Wildlife Refuge. Friends of Coastal South Carolina’s challenge involves the first phase of the project, which will fill in almost 2 acres of wetlands and disturb 17.6 acres to facilitate construction of the first 27 homes.

“In this case, the ALC found that the wetland fill and plan to route stormwater through the Cape Romain National Wildlife Refuge and into Outstanding Resources Waters would result in irreparable harm,” Armstrong said. “Such harm should not occur before Friends of Coastal SC has an opportunity to present its case on the merits to the ALC, and obtain judicial review.”

Allowing construction to proceed while the legal case progresses not only comes as a detriment to the environment and the health of the refuge and its wildlife, but is a violation of due process rights. The South Carolina Constitution guarantees that no person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency except on due notice and an opportunity to be heard, along with the right to judicial review. Our courts have said that the “requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review.” Friends of Coastal SC’s right to have a hearing before the ALC and the appellate courts is no exception.

In this case, any review that occurs after the tract has been cleared, the wetlands filled, stormwater routed through the Refuge and into Outstanding Resource Waters and the houses constructed can hardly be described as providing a meaningful opportunity to be heard, or for judicial review, by any standard of due process.

The White Tract’s location next to Cape Romain and its designation within the congressionally authorized acquisition boundaries—meaning Congress has pre-approved acquisition of the property into the Refuge—underscore the exceptional ecological and recreational significance to the state of South Carolina. As Dr. Tom Mullikin, Director of the Department of Natural Resources, explains in his affidavit accompanying the petition: “where Congress has determined that a tract of land possesses conservation values of such significance as to warrant its inclusion within federally authorized acquisition boundaries, DNR, in furtherance of the Governor's conservation vision, similarly prioritizes such tracts for conservation outcomes.”

According to Dr. Mullikin, “these valuable wetlands, in their present condition, must be preserved and the site left undisturbed so as to prevent irreparable harm pending resolution of the contested case proceedings and a determination by the ALC as to whether the permit and certification comply with applicable statutes, regulations, and policies. Commencement of construction, including clearing, grading, and filling of the wetlands, would permanently eliminate a resource of significant value to the State of South Carolina.”

Senator Chip Campsen also submitted an affidavit in support of the petition, and explained how he intentionally sought to have Cape Romain included in his district, even though it contains no voters. That is because of his “many experiences and adventures in the Cape Romain National Wildlife Refuge,” including archery hunts, tarpon fishing and he “even gave my future wife her first kiss on a barren Bulls Island beach.” Senator Campsen noted that the ALC Order “provides no opportunity for administrative and judicial review of the construction that will certainly damage this fragile area and set a dangerous precedent for further degradation of our coastline in these environmentally vulnerable areas. I support the Court's preservation of the status quo while my constituents exercise their right to meaningful review allowed under the state's constitution.”

The refuge is designated as a Geographic Area of Particular Concern, as well as a Class I National Wilderness Area and Outstanding Resource Waters, all of which provide heightened protections under state law. Friends of Coastal South Carolina is challenging the stormwater permit and certification for this development because the project’s stormwater would discharge directly onto the refuge.

“If Cape Romain is not worthy of the highest level of protection, no place is truly protected,” said Grace Gasper, Executive Director of Friends of Coastal South Carolina.

South Carolina’s Coastal Management Program policies require that residential development projects avoid filling or permanently altering wetlands unless no feasible alternatives exist or an overriding public interest can be demonstrated. It also mandates a comprehensive evaluation of cumulative and long-range environmental impacts, especially in the context of preserving coastal resources. SCELP’s legal challenge argues that neither of these policies are being followed here.

The U.S. Fish and Wildlife Service (USFWS), which manages Cape Romain, also has serious concerns about the project. According to a USFWS letter, “Stormwater and septic systems will run off into the refuge estuaries, impacting the health and viability of these designated Outstanding Resource Waters. Fertilizers, chemicals, silt, waste, etc. will cause toxicity to the shellfish beds in the refuge impacting not only the fish and wildlife in the refuge but the local community that relies on these resources for their livelihood.”

“This development is a serious threat to one of our State’s national treasures and sensitive areas,” said Monica Whalen, a staff attorney at SCELP. “Allowing construction to begin now, while significant concerns about the adequacy of the permit application remain unresolved, would seriously undermine laws designed to prevent harm before it occurs.”

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MEDIA CONTACTS:

Amy Armstrong, Executive Director
South Carolina Environmental Law Project
amy@scelp.org, (843) 527-0078

Grace Gasper, Executive Director
Friends of Coastal South Carolina
grace@sccoastalfriends.org, (843) 697-7535

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