Friends of Gadsden Creek v. SCDHEC and WestEdge Foundation, Inc. ( 2024 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Friends of Gadsden Creek, Appellant,
v.
South Carolina Department of Health and Environmental
Control and WestEdge Foundation, Inc, Respondents.
Appellate Case No. 2023-000006
Appeal From Charleston County
Ralph King Anderson, III, Administrative Law Judge
Memorandum Opinion No. 2024-MO-022
Heard June 19, 2024 – Filed October 9, 2024
AFFIRMED
Benjamin David Cunningham and Lauren Megill Milton,
both of S.C. Environmental Law Project, of Pawleys
Island, for Appellant.
Mary Duncan Shahid, of Nexsen Pruet, LLC, of
Charleston; Kirsten Elena Small, of Maynard Nexsen,
PC, of Greenville; and Michael Smoak Traynham, of
Maynard Nexsen, of Columbia, for Respondent
WestEdge Foundation, Inc. Sara Volk Martinez and
Bennett W. Smith, both of South Carolina Department of
Environmental Services, of Columbia; and Bradley
David Churdar, of Charleston, for Respondent South
Carolina Department of Health and Environmental
Control.
PER CURIAM: The South Carolina Department of Health and Environmental
Control (DHEC) granted a permit for the WestEdge Foundation (WestEdge) to fill
in and build a mixed-use development on top of 3.9 acres of saltmarsh and creek
located on the west side of the City of Charleston. After a five-day contested case
hearing, the administrative law court (ALC) affirmed DHEC's grant of the permit,
finding that, while the saltmarsh and creek are critical tidal lands, they partially exist
over a landfill. The ALC concluded that tidal and stormwater flooding often
inundates the surrounding streets and neighborhoods with polluted water, and thus,
DHEC acted within its discretion in granting the permit. We affirm.
I.
"Under the public trust doctrine, the State holds presumptive title to tidal land below
the high water mark to be held in trust for the benefit of all people of South Carolina."
Estate of Tenney v. S.C. Dep't of Health & Envtl. Control, 393 S.C. 100, 106, 712
S.E.2d 395, 398 (2011). All citizens may use and enjoy tidelands, and no citizen has
an inherent right to alter these lands. Kiawah Dev. Partners, II v. S.C. Dep't of
Health & Env't Control, 411 S.C. 16, 29, 766 S.E.2d 707, 715 (2014). Accordingly,
the public's interest is "the lodestar" which guides any legal analysis evaluating a
proposal to alter tidelands. Id.; see also S.C. Coastal Conservation League v. S.C.
Dep't of Health & Env't Control, 434 S.C. 1, 10, 862 S.E.2d 72, 77 (2021).
"Recognizing that permitting alteration of the tidelands may be in the public's
interest in limited circumstances, the State enacted statutes and promulgated
regulations which generally prohibit alterations to the tidelands except when the
public interest requires otherwise." Kiawah Dev. Partners, II, 411 S.C. at 29, 766
S.E.2d at 715. These statutes and regulations include the Coastal Zone Management
Act (CMA); Chapter 30 of the South Carolina Code of Regulations; and the Coastal
Zone Management Program (CMP) administered by DHEC. Id. "As used within
[Chapter 30 of the South Carolina Code of Regulations], public interest refers to the
beneficial and adverse impacts and effects of a project upon members of the general
public, especially residents of South Carolina who are not the owners and/or
developers of the project." S.C. Code Ann. Regs. 30-1(D)(45) (Supp. 2023). "To
the extent that, in the opinion of [DHEC], the value of such public benefits is greater
than the public costs embodied in adverse environmental, economic and fiscal
effects, a proposed project may be credited with net public benefits." Id.Gadsden Creek and its accompanying saltmarsh are the channelized remnant of a
much larger tidal creek. Before the 1950s, Gadsden Creek naturally flowed through
100 acres of saltmarsh that began at the bank of the Ashley River and ended upland
at the Gadsden Green community. The winding creek and its marsh were an
important part of the community's economic and recreational life, with members of
the Gadsden Green community using the marsh to fish and crab. However, during
the 1950s, the City of Charleston decided to turn the saltmarsh into buildable land
using trash as fill. From the mid-1950s to l969, the City used the saltmarsh as a
landfill. At the time the marsh was being filled, there was no Clean Water Act and
many of the current engineering practices necessary to contain landfill contaminants
had yet to be in use. For example, today it is common (and required) to line the
bottom of a landfill with impacted clay and then collect any water that runs through
the trash into a drain for sanitization. This unique type of landfill pollutant (the dirty
water that runs through trash) is called leachate. It is undisputed the landfill the City
placed over the 100-acre saltmarsh was not properly lined.
While the landfill was active, however, the City constructed a ditch lined with riprap
around the south and west perimeter of the landfill to direct stormwater runoff into
the Ashley River. In the early 1970s, the City capped the landfill with soil, leaving
the lined ditch as a stormwater catchment. The Army Corps of Engineers issued an
"after the fact" Rivers and Harbors Act permit for the landfill, which required the
City to maintain the soil cap and stormwater catchment. Later in the 1970s, the City
rerouted the stormwater catchment from the perimeter of the landfill to run through
the landfill. It was rerouted again through the landfill in the 1980s. In the 1990s,
the City expanded the culvert at Lockwood Avenue to allow more storm water to
drain into the Ashley River, which in turn allowed more tidal water into the creek.
Over time, most of the capped landfill was developed, becoming the current
WestEdge Project neighborhood. However, also over time, nature reclaimed the
stormwater ditch, turning it into a creek—as tidal waters washed away the
channelized liner and formed a marsh at Hagood Avenue where the creek turns. The
creek, which never lost the name Gadsden Creek (even when it was a lined ditch), is
now 3.9 acres of functioning saltmarsh ecosystem—frequented by wildlife,
including herons, crabs, trout, sheepshead, and racoons.
The creek is also polluted. Because tidal waters have eroded both the liner of the
channelized creek and the landfill cap, leachate collects in puddles at low tide.
Though diluted at hightide, the leachate is distributed into the Ashley River with the
outgoing tide and into the surrounding area when exceptionally high tides cause the
creek to overflow onto the streets, even up to Gadsden Creek residences.
WestEdge, a collaboration of the Medical University of South Carolina (MUSC)
Foundation and the City of Charleston, applied to DHEC for a permit to partially
dredge the landfill under Gadsden Creek to install stormwater pipes, as well as to
cap Gadsden Creek to eliminate flooding and create buildable land for mixed-use
development. The project proposal included the retention of a portion of Gadsden
Creek as a nature-viewing water feature, but this remnant would not be tidally
influenced. Because the application required elimination of 3.9 acres of tidally-
influenced wetlands, WestEdge included a mitigation plan, consisting of WestEdge's
purchase and restoration of 20 acres of tidelands at Kings Grant, a former golf course
located fourteen miles upstream from WestEdge and constructed "within tidally
influenced wetlands abutting the Ashley River."
In reviewing the application, DHEC requested more information from WestEdge
about alternative on-site design proposals that would not require the elimination of
Gadsden Creek. In response, WestEdge gathered samples of leachate during low
tide and had them analyzed for contaminants. It was discovered the leachate
contained high levels of mercury, lead, and other toxins. WestEdge maintained it
would not be feasible to keep or restore Gadsden Creek because, even if were
technologically possible to mitigate flooding, the problem of the leachate
contaminated water could not be solved without re-capping the landfill—i.e. filling
in the creek. In support of this position, WestEdge explained that, during an earlier
Charleston infrastructure project—the Spring-Fishburne Drainage Project—the City
had suggested restoring tidelands within the WestEdge Project neighborhood as its
mitigation plan. Ultimately, the Army Corps of Engineers greenlit the
Spring-Fishburne Drainage Project but rejected the mitigation plan, stating that as a
special condition of its final permit:
That permittee understands and agrees that excavation of
uplands to create a tidal marsh adjacent to Brittlebank Park
is not authorized. The potential negative impacts
associated with excavating a portion of a former landfill
and restoring tidal flow to this area far outweighs the
potential environmental benefits of the proposed
mitigation activities.
WestEdge asserted based on this previous rejection of a proposal to restore tidelands
in the WestEdge Project neighborhood, restoration of Gadsden Creek was not
feasible. DHEC was satisfied with this response and granted WestEdge's permit
application. Friends of Gadsden Creek requested a final review conference of the
permit, which was denied, and then a contested case hearing with the ALC, which
was granted. After hearing testimony regarding the history of Gadsden Creek,
testimony from community members who support keeping the creek, and testimony
from competing experts about the feasibility of restoring the creek, the ALC
affirmed DHEC's grant of WestEdge's permit, concluding:
This was a challenging case, and the Court does not lightly
approve of the elimination of critical area tidelands that
are so integral to the health, welfare, and vibrancy of our
natural ecosystem here in South Carolina. However, this
case presents a unique hurdle of a naturalized drainage
ditch for a landfill that is now being contaminated by that
landfill. Based upon the above, I conclude [Friends of
Gadsden Creek] failed to show by a preponderance of the
evidence that the Department erred in granting WestEdge
the Permit.
Friends of Gadsden Creek appealed the ALC's order, and the parties filed a joint
motion to certify the appeal to this Court. This Court granted the motion to certify.
II.
"[T]he standard of proof in a contested case is by a preponderance of the evidence."
S.C. Code Ann. § 1-23-600(A)(5) (Supp. 2023). "The party asserting the affirmative
issue in an adjudicatory administrative proceeding has the burden . . . to prove
convincingly that the agency's decision is unsupported by the evidence. Sierra Club
v. S.C. Dep't of Health & Env't Control, 426 S.C. 236, 257, 826 S.E.2d 595, 607
(2019) (quoting Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 226,
467 S.E.2d 913, 917 (1996)). However, this does not relieve the permit applicant
from its overarching burden to satisfy the requirements necessary for approval of its
permit application. Id. at 258–59, 826 S.E.2d at 607.
In an appeal from an ALC decision, this Court confines its analysis of an ALC
decision to whether it is affected by an error of law or is "clearly erroneous in view
of the reliable, probative, and substantial evidence on the whole record." S.C. Code
Ann. § 1-23-610(B) (Supp. 2023). "In determining whether the ALC's decision was
supported by substantial evidence, the Court need only find, looking at the entire
record on appeal, evidence from which reasonable minds could reach the same
conclusion as the ALC." Kiawah Dev. Partners, II, 411 S.C. at 28, 766 S.E.2d at
715.
This case demonstrates that previous generations' lack of awareness regarding the
effects of using trash to create buildable land—coupled with nature's resilience and
the reality that Charleston is experiencing more tidal flooding than ever before—has
created a multifaceted problem on the west side of the Charleston peninsula.
We are greatly disturbed and disheartened by the loss of Gadsden Creek in its natural
form during the 1950s and 60s. This was injustice for the community that loved the
marsh and for all of South Carolina. We are also aware that, although not pristine,
the current Gadsden Creek and its accompanying saltmarsh is a functioning tidal
eco-system. However, we hold the evidence submitted at the contested case hearing
substantially supports the ALC's conclusion that DHEC properly granted
WestEdge's permit application. See Murphy v. S.C. Dep't of Health & Env't Control,
396 S.C. 633, 645, 723 S.E.2d 191, 198 (2012) (holding "even assuming the [permit
applicant] bore a burden . . . substantial evidence supports the conclusion that this
burden was overcome"). We acknowledge the well-presented case by Friends of
Gadsden Creek. However, after painstakingly reviewing the evidence, we find the
issues of stormwater runoff, a polluted urban creek, and tidal flooding have
combined to create an extremely rare circumstance where it is in the public's interest
to approve the permit to fill in Gadsden Creek. The facts of this case are without
precedent, and our decision shall not be used or interpreted as precedent for any
other context or permitting situation.
Accordingly, the ALC's decision to uphold DHEC's grant of WestEdge's permit
application is
AFFIRMED.
KITTREDGE, C.J., FEW, JAMES, HILL and VERDIN, JJ., concur.