December 8, 2020

J. Dale Shoemaker

In Major Move, Horry County Gives Up Local Control Of Multi-Million Dollar Industry

Horry County Council members Tuesday night voted to effectively give up all local control of mining, a multi-million dollar industry here.

Mining in Horry County is a major industrial operation that nets sand, clay or coquina for use in development and infrastruture projects. State data shows that Horry County has the most active mines in South Carolina, with 52.

Rather than maintain zoning control over mines — allowing county leaders to decide where a mine is dug — the council voted to scrap its existing zoning regulations, leaving all control over the major industrial operations to the state Department of Health and Environmental Control (DHEC). While DHEC regulates technical aspects of mining, like air and water quality, it explicitly leaves zoning control of mines to local municipalities and does not regulate where a mine is dug or how it impacts a neighboring community.

From residential subdivisions to highways, the materials mined in Horry County — primarily sand and clay — are a driving force of the development boom along the Grand Strand in recent decades. Without sand, there’s no concrete. Without clay, developers can’t build roads, homes and other buildings above floodwaters. Miners say getting those materials locally is cheaper than hauling them in from elsewhere. A single mine can net tens of millions of dollars for a miner.

The move by council was divisive and came after more than two months of heated debate. At a marathon meeting of County Council last month, environmentalists and other community members spent several hours pleading with council to retain its zoning control, while others connected to the mining industry claimed the county’s current zoning regulations conflicted with state law. Some residents said mines have disturbed their homes by bringing dust, noise, traffic and other problems next door.

“This ordinance, as it is written, puts the interest of the private mining industry stakeholders above the people who make up the people who make up the fabric of Horry County and what matters to them,” said Lauren Megill Milton, an attorney for the South Carolina Environmental Law Project, at council’s Nov. 17 meeting, where council heard public comments on the measures. “By removing your own power, you are leaving certain aspects of mining unregulated.”

Ahead of Tuesday’s vote, which passed 8-3 with one member absent, several council members called for more debate on the matter and urged their colleagues to defer the vote until January to allow for more discussion. A vote to defer the matter failed.

The package of legislation council voted on contained three parts, one piece that rewrote part of the county’s zoning code and two other pieces that removed lingering language referring to mining in the county’s stormwater code and its Imagine 2040 future development plan.

“I think we need to take a very, very close look at this. We’re about to do something that is going to be very hard to turn around if it doesn’t work out,” said Council member Gary Loftis, who represents part of Myrtle Beach. “It’s too big a step and like a locomotive it’s going to take quite a while to turn it around.”

Other council members argued that if DHEC approves a state permit for a mine, but county leaders vote against re-zoning a piece of land for a mine at the local level, the county is once again in conflict with state law and could end up back in court.

“We cannot overrule DHEC,” council member Johnny Vaught, who represents part of Conway and Carolina Forest, said. “I think we have to give this thing a chance.”

In the end, council members Loftis, Harold Worley and Danny Hardee voted against the mining measures. Council members Vaught, Tyler Servant, Bill Howard, Johnny Gardener, Al Allen, W. Paul Prince, Orton Bellamy and Cam Crawford voted for the measures.

The legislation came after the mining company Red Bluff Rock LLC sued the county in 2017 over its mining regulations, after the county denied the company a needed local permit. At that time, Horry County required mines to comply with zoning regulations and obtain a separate, local permit allowing the mine to operate. In April, a federal judge ruled that the county’s local permit for mines conflicted with state law and was therefore illegal.

As the county was settling the lawsuit and beginning to think about rewriting its mining regulations to comply with state law, the two attorneys who had sued the county, Kerry Jardine and Christopher Pearce from the Pearce Law Group, approached the county and offered to help.

Pearce and Jardine led the effort rewrite and loosen Horry County’s zoning requirements for mines. At council meetings, the legislation became known as “the Peace ordinance,” a reference to the two lawyers’ heavy involvement in the process.

Under the ordinance, mines that have already received permits from DHEC, as well as public projects, are exempt from any zoning or stormwater review by Horry County, Planning Director David Schwerd said. Every mine needs a DHEC permit to operate legally in South Carolina.

With the newly-enacted legislation, Horry County will now regulate mines like so:

Mines that are 5 acres or smaller do not need county certification to operate, and can be dug anywhere. Those mines must be at least 25 feet from any water, and at least 25 feet from a property line. Five acres is slightly less than four football fields.

Mines that are bigger than 5 acres do need county certification to operate, but can also be dug anywhere. Those mines must be 25 feet from any water and property lines, the operators must maintain the roads going in and out of the mine, and must construct a barrier around the mine.

The legislation also says that for any mine, regardless of size, where the material dug will be kept on the property, no county certification is needed. For example, if a developer were building a subdivision with several ponds, but intended to use the dirt from those digs in the construction, they wouldn’t need any county mining approvals. If that same developer wanted to haul some of the dirt from the ponds off site, they would need construction and stormwater approvals from the county, but no mining certification. Related legislation would remove lingering mining regulations from other county laws, including its stormwater ordinance.

For proponents of the ordinance, the rewrite brings county zoning rules into harmony with state law. They also say that the changes won’t bring a bonanza of mining activity, as some opponents feared. Marguerite McClam, an engineer who previously worked with DHEC and a proponent of the ordinance, said that only 7% of Horry County’s land — approximately 88 square miles — could feasibly be mined.

“We have to mine where God put the material. We have to find the material that meets the specifications,” she told council in November.

McClam also noted that it wasn’t fair to the western, rural parts of Horry County to bear the brunt of mining in the county.

“Is it fair to dump all of this back on the western part of the county, for the needs of the coastal side of the county?” she said. “Nah.”

Throughout the debates on the mining issue in Horry County, environmentalists from both local and statewide organizations argued that loosening zoning on mines could cause more mines to be dug that harm the environment. For one, Cara Schildtknecht, the Waccamaw riverkeeper with the Winyah Rivers Alliance, said that more mines could disrupt swamps, streams and rivers, leading to wildlife being harmed and harmful bacteria flourishing. Others raised concerns that more mines could make local flooding worse. Mines are impervious surfaces, Schildtknecht and others said, meaning that if an empty mine fills up with water, it will eventually overflow and the stormwater runoff could cause flooding whereas before, that water would be absorbed into the earth.

Other opponents to the ordinances argued that loosening regulations could harm people’s homes or the local economy.

As council debated the measures for a final time Tuesday, Loftus argued that other coastal counties maintained zoning regulations as a means to protect the residents and local economies.

Pearce, the attorney, disagreed with that logic.

“(Mining) may be handled in other ways in other counties. I would tell you they just haven’t been sued yet,” Pearce told The Sun News in October. “And it’s coming. And I might be the one who brings it to them, if so I’ll do it.”

After Tuesday’s meeting, Gardner, the council chairman who represents all of Horry County, said council passed the ordinance to bring local laws in accordance with state laws, and that he hadn’t heard that more lawsuits were imminent if council didn’t act.

“I don’t think anyone said specifically if you don’t pass this you’ll end up in court,” he said. “But I think people were talking about trying to avoid going to court, trying to pass an ordinance that’s legal, and pass an ordinance that doesn’t get us in trouble. That’s for all ordinances we want to do that.”

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