Valdosta Daily Times

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November 3, 2012

High court says DHEC violated law

CHARLESTON, S.C. — The state Department of Health and Environmental Control violated state law in approving a water quality permit for the $650 million deepening of the Savannah River shipping channel, the South Carolina Supreme Court ruled Friday.

The justices agreed with environmental groups that had sued, arguing that the South Carolina Maritime Commission, not the environmental agency, has the authority to decide matters involving the river. The required state certification under the federal Clean Water Act has been the subject of a year of political debate in South Carolina.

The U.S. Army Corps of Engineers announced last week its final approval for the deepening, a priority for Georgia for 16 years. They want it to enable larger containerships to call at its port when the Panama Canal expansion is complete.

The project would deepen the channel from its current 42 feet to 47 feet.

The justices wrote that the plain language of state law gives the Maritime Commission “the responsibility and exclusive authority to represent South Carolina in all matters pertaining to or collaterally related to dredging in the Savannah River.”

But the corps has now asked Congress for an exemption from having to get any South Carolina water quality certification. It says the exemption would prevent what it calls inappropriate delays with the project.

Last year, the DHEC board granted the needed water quality certification, reversing a decision by its own staff, which had said the dredging would harm endangered sturgeon in the river and fragile wetlands on the South Carolina shore.

The board approval came after Georgia Gov. Nathan Deal visited South Carolina to discuss the issue with S.C. Gov. Nikki Haley, who appoints board members. Haley said Deal made a reasonable request and she did not pressure anyone for a specific outcome.

The environmental groups then sued. State lawmakers later passed a law retroactively suspending DHEC’s ability to make dredging decisions concerning the river. While Haley vetoed it, she was overridden with the votes of all but one state lawmaker.

Justice John Kittredge dissented from the high court opinion, although he said he did not necessarily disagree with the holding that DHEC violated the law. But he said the ruling may have unintended consequences.

He noted that, under federal law, if a state doesn’t act on a water quality certification within a year, the requirement is waived. He wondered what would be the effect of declaring DHEC’s actions illegal.

“I am concerned the court’s decision may ultimately have the regrettable effect of silencing South Carolina’s voice in this matter of great public importance,” he wrote.   

DHEC Director Catherine Templeton commented that the agency did not object to the issue being considered by the high court “so this matter could be resolved on behalf of the state as a whole, and devoid of political pressure.  We are very pleased that the Court has rendered a decision, and we will abide by it.”

Attorney Blan Holman, representing the plaintiffs, said the court agreed with the environmental groups that DHEC overstepped its authority.

“This decision upholds the rule of law and ensures that the severe damage that this project will visit on South Carolina will be objectively reviewed,” he said.

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