Wetlands protection inches forward precariously
By Andy Brack
SC Statehouse Report

OCT. 19, 2003 - - Spurred to action by conservationists, state officials are developing regulations to shield isolated freshwater wetlands stripped of protection by a January 2001 U.S. Supreme Court decision.

But the action could be just a prelude to a long fight in the General Assembly.

"All parties have basically agreed that this is needed, but, of course, the devil is in the details," said Chris Brooks, deputy commissioner of the state Department of Health and Environmental Control.

When the Supreme Court ruled 5-4 that isolated wetlands were no longer protected by the federal Clean Water Act, it essentially made it easier for people to develop thousands of acres of South Carolina's fragile, ecologically-important wetlands that often are not directly connected to ground-level streams or lakes.

These wetlands - - things like Carolina bays and bogs - - function as seasonal wet areas with fluctuating water tables. They are crucial natural sponges that provide water filtration, storage and recharge functions to the state's water supply.

Since the Court's decision, there has been a lot of confusion about how to deal with isolated freshwater wetlands. States have been waiting for the federal government to set guidelines, which haven't yet come. So states are finding they need to set standards for them to keep water clean and to protect sensitive areas.



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Earlier this month in response to a lawsuit threatened by conservation groups, the state DHEC board voted to have state regulators develop proposed regulations to return the protection of freshwater wetlands to the process of what was going on here before the Supreme Court decision. Those regulations likely will be presented to state lawmakers in January.

"Industry really has no right to scream about this because we were under these regulations for 30 years - - and development didn't stop," said Nancy Vinson of the S.C. Coastal Conservation League. "We see it as very important and very reasonable to restore what was lost."

She and others emphasized proposed regulations would not cause developers to jump through more hurdles than they did before the Court decision. Instead, they would return to a status quo in which there was certainty in the process - - not the threat of lawsuits and other interruptions.

DHEC's proposed regulations likely will require developers to apply and receive water quality permits before freshwater wetlands could be filled in for development. Brooks said the average permitting process time would take about 90 days.

In general, it's easier for regulations to get passed by the General Assembly than it is to get free-standing legislation approved. When DHEC submits regulations, lawmakers can approve, reject or ask the agency to modify them. With regulations, lawmakers don't make amendments or modifications.

But what may happen with a controversial issue such as protecting freshwater wetlands is the tougher process involving legislation. Some pro-development forces prefer using legislation as the vehicle on freshwater wetlands because they would have a voice in the process at committee meetings, mark-ups and more. They would be able to lobby for what they wanted and wouldn't have regulations thrust upon them. In other words, they'd potentially be able to weaken the permitting process through politics if legislation were used instead of regulations.

Some are optimistic that lawmakers will at least consider doing something to protect freshwater wetlands after almost three years of inaction. A legislative attempt to do something two years ago failed.

Others aren't quite as optimistic. A vote this month by the Council on Coastal Futures indicated developers would push hard for a legislative solution. In that vote, the council - - a balanced group of development and conservation interests looking at a long-term plan for the coast - - voted unanimously for the state to "to develop statewide comprehensive legislation that codifies historical freshwater wetland management standard operating procedures including wetland master planning, aesthetics, and education."

Translated: That means they want political legislation, not agency regulations, to take care of the issue.

With the state budget and economy still in a mess, a legislative attempt has much less of a chance of approval next year. And that would keep freshwater wetlands still at great risk.

A frightening possibility

This week's cartoon by our Bill McLemore:


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