Leopard frogs, so named for the spots on their bodies, live in shallow freshwater wetlands during winter and breeding season. Leopard frogs are primarily nocturnal in nature and hide in grasses during the day.
A recent U.S. Supreme Court decision didn’t change the definition of a wetland, but it did try to define federal responsibility more clearly for regulating them. In its wake, the decision has created a power vacuum that could impact South Carolina, a state largely shaped by its mountain streams, Midlands rivers, and coastal marshes.
Sackett v. Environmental Protection Agency reduced the types of wetlands falling under the EPA’s jurisdiction through the Clean Water Act. Development proposals for non-jurisdictional wetlands could be subject to local zoning rules and/or state guidelines or no rules, depending on where they are.
“There is a significant concern that wetlands that may have been previously covered under the Clean Water Act may not be now,” says John Boyd, an attorney with Haynsworth Sinkler Boyd. The U.S. Geological Survey estimates nearly one-quarter of South Carolina is wetlands — about 4.6 million acres.
Only Florida and Louisiana have a higher percentage of land area composed of wetlands. The EPA defines wetlands as “areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.” Ninety percent of South Carolina’s wetlands are freshwater.
Freshwater forested wetlands are the most common in the Palmetto State, but Sandlappers know wetlands by many names: beaver ponds, bogs, bottomland hardwoods, Carolina bays, pocosins, salt marshes, savannahs, seeps, swamp forests, tidal flats, and wet pine flatwoods. They help contain flooding, prevent erosion, filter impurities, provide habitat for fish and wildlife, and serve as way stations for migrating birds. They also provide hours of recreation for residents and tourists alike.
“People move here because of how beautiful our state’s water resources are,” says Riley Egger, land, water, and wildlife program director with the Coastal Conservation League. “We have a unique habitat, so that’s why forthcoming protections are so important.”
While the S.C. Department of Health and Environmental Control has a general responsibility for water quality and has some specific jurisdiction to protect non-jurisdictional wetlands in the coastal zone, it has no mandate for a statewide, wetlands-specific permitting program. The S.C. Department of Natural Resources manages 20 wetlands areas across the state but is not a regulatory agency. It says South Carolina relies on a network of federal programs in conjunction with the Clean Water Act.
The 1972 Clean Water Act, which was an update and expansion of 1948’s Federal Water Pollution Control Act, made it unlawful to discharge dredged or fill material into wetlands and other waters of the United States without a permit issued by the U.S. Army Corps of Engineers. “Waters of the United States” primarily refers to navigable waters, such as a lake or river, but wetlands connected to those waters can also fall under EPA jurisdiction. Arguments over those connections is where the Supreme Court enters the story.
“It has been notoriously hard to quantify jurisdictional wetlands versus non-jurisdictional wetlands,” Riley says. Numerous court cases were filed in the decades following the Clean Water Act’s passage. Courts typically deferred to the Corps’ broad interpretation of jurisdictional wetlands.
Should a ditch with a drainpipe be included? Regulators thought so in Rapanos v. United States, a 2006 Supreme Court decision in which the justices overruled the Corps’ interpretation. But even that 5-4 ruling exposed the many ways of looking at wetlands.
Justice Antonin Scalia represented four of the five prevailing justices with an opinion that argued the Clean Water Act only covered waters that had a continuous surface connection, such as a stream or pond that drains into a river or lake. In the fifth vote, which was against the Corps, Justice Anthony Kennedy felt wetlands didn’t need a continuous surface connection but did need a “significant nexus,” meaning it impacted the quality of the nearby navigable water.
Justice John Paul Stevens represented the other four justices with a dissenting opinion that embraced precedent, writing, “by curtailing the Corps’ jurisdiction of more than 30 years, the plurality needlessly jeopardizes the quality of our waters.” In practice, Kennedy’s opinion prevailed. Meanwhile, economic infrastructure developed around wetlands regulation.
When a property owner or developer seeks a permit to fill a wetland, they do so under Section 404 of the Clean Water Act. The 2008 Mitigation Rule issued by the Corps and EPA sets forth guidelines for how a permit recipient will make environmental amends.
The permit recipient does so through “compensatory mitigation,” meaning they must establish, reestablish, restore, rehabilitate, preserve, or enhance some other wetlands, preferably nearby. Three ways can be used to accomplish compensatory mitigation: mitigation banks, fee-in-lieu programs, and permittee-responsible mitigation.
A prominent local example of permittee-responsible mitigation is the Scout Motors project in Blythewood, where construction temporarily paused while the startup automaker and the Corps hashed out a mitigation package. According to the Richland County Economic Development Office, the agreement protects 4,878 acres on the Congaree River and 143 acres at Shelton Island, which is on the Broad River in Fairfield County.
“A hierarchy is established for the kind of mitigation that is enacted,” says Ross Nelson, South Carolina district office manager for American Mitigation Co., which was recently acquired by Westervelt Ecological Services. “At the top is mitigation banking.”
With mitigation banking, an organization such as American Mitigation and/or investors purchase land with wetlands or obtain conservation easements from a landowner for a specific acreage of wetlands. The property is then preserved, enhanced, or restored, depending on need.
The bank then sells credits to Section 404 permit recipients needing to perform compensatory mitigation. The Corps has guidelines for how many credits a disturbed wetlands will cost the permittee.
“Most are around 10 to 12 credits per acre,” Ross says. American Mitigation operates eight banks. He says credits from Midlands-area banks cost anywhere from $10,000 to $20,000. “We look at the market rates for the credits and our internal costs for restoring the land.”
The overall regulatory goal is for no net loss of wetlands to occur when a permit is granted. Often, more wetlands are preserved or restored than disturbed.
“We understand economic development activity is going to occur in our state,” Ross says. “What we seek to do is strike a balance. It’s a delicate balance to try and strike, but it’s worthwhile.”
Backfilling land to prepare an Idaho home site was at the crux of Sackett. Regulators determined the site contained protected wetlands and the backfilling violated the Clean Water Act. The Sackett wetlands were classified as waters of the United States because they were across a road from a tributary that fed into a creek, which fed into a lake. A circuit court upheld a district court judgment in favor of the EPA.
The Supreme Court overturned the decision on a 9-0 vote. In its opinion, Justice Samuel Alito pointed out both the successes of the Clean Water Act as well as the up to that time murky definition of what constitutes waters of the United States.
“Does the term encompass any backyard that is soggy enough for some minimum period of time?” Alito asks. “Does it reach mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes? How about ditches, swimming pools, and puddles?” Ultimately, the opinion echoes Scalia’s in defining waters of the United States as traditionally navigable waters and concludes the Clean Water Act only extends to wetlands that are a relatively permanent body of water with a “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Champions of limited government see Sackett as a victory for property rights and an important rebuff of bureaucratic overreach. The Idaho Freedom Foundation points out Justice Alito called on Congress to rewrite the Clean Water Act to make the EPA’s and Corps’ jurisdiction clearer. The Competitive Enterprise Institute, which advocates for regulatory reform, calls the decision a “great day” for property rights and federalism.
“This opinion is a win for the environment as well. Over 50 years ago, Congress made it perfectly clear that states are supposed to play the lead role in addressing water pollution,” writes Daren Bakst, CEI deputy director. “The Court’s opinion helps to restore the will of Congress and what legislators thought was the best way to ensure we have clean water.”
Writing in The Heritage Foundation publication The Daily Signal, J. Kennerly Davis, Jr., a former Virginia deputy attorney general, called the decision an “important milestone.” He said it aligns the EPA’s regulatory authority with the text of the Clean Water Act, which is, “particularly important because it limits the EPA’s potential for overreach in the future.”
So, what about waters of South Carolina? While the state may not have an active, statewide permit program, DHEC has a state-mandated responsibility to regulate water quality under the South Carolina Pollution Control Act.
DHEC’s jurisdictional definition of waters is “lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the state and all other bodies of surface or underground water, natural or artificial, public or private, inland or coastal, fresh or salt, which are wholly or partially within or bordering the State or within its jurisdiction.” Justice Alito’s swimming pool is not included, but a lot of ground, or water, is covered nonetheless.
In an email response, a DHEC spokesperson pointed out the agency’s responsibilities for ensuring water quality under the Clean Water Act are to review impacts of proposed projects under the Corps’ jurisdiction and ensure activities associated with the projects meet state regulations. The DHEC spokesperson pointed out that wetlands that are no longer “waters of the United States” could now be “waters of South Carolina,” jurisdictionally speaking.
The Coastal Zone Management Act established a program that regulates impacts on coastal waters, tidelands, beaches, and beach dune systems in Beaufort, Berkeley, Charleston, Colleton, Dorchester, Georgetown, Horry, and Jasper counties. Currently, that program is also administered by DHEC, which will be split this year into the Department of Public Health and the Department of Environmental Services.
Often during a period following a decision such as Sackett, regulatory agencies study the ruling and come up with new verbiage. In the interim, regulators provide guidance about how future rules are shaping up so ongoing projects can continue.
“We’re in a period of uncertainty, which is never good,” says Bob Perry, a former DNR official and senior mitigation strategist with Water & Land Solutions, a North Carolina-based provider of mitigation services, including banking. He adds that some permittees may go ahead and purchase ample credits so as not to delay development schedules. “If someone is building a $100 million factory, even $100,000 of mitigation credits is a small investment.”
Josh Eagle, a University of South Carolina professor who teaches courses in environmental law, natural resources law, and ocean and coastal law, is worried some wetlands that now fall outside federal jurisdiction could become irreparably damaged. “The Wild West period between the elimination of federal jurisdiction and the possible adoption of new law to restore production is my key concern,” he says. “Some states have existing wetlands laws, so Sackett has less effect there.”
Narratives regarding development in and near wetlands are often portrayed as binary, pitting environmentalists seeking to protect all living creatures against industrialists seeking to crush nature under the bootheel of progress. “People want to see this as environment versus landowners,” Josh says. “It’s a more complicated political dynamic than you might imagine.”
Wealthy industrialists have been responsible for setting aside large swaths of Lowcountry land for protection. Hunting and fishing cuts across social classes and political affiliations, and those sportsmen and women rely on fertile habitat for their pursuits.
Meanwhile, the Palmetto State’s population increased by 650,000 between 2010 and 2022. Those newcomers all need to live and work somewhere — and also need clean water. Riley says conservation groups have already voiced a need for the state to ensure that regulations are in place to fill the Sackett void.
“This really gives the state an opportunity to provide clarity here, to take control over the wetlands we have here,” she says. “This is a real opportunity for the state to protect what makes South Carolina special.”
