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Spectre v. South Carolina Dep't of Health & Envtl. Control

Citation: 40 ELR 20043
No. No. 26764, (S.C., 02/01/2010)

The South Carolina Supreme Court reversed an administrative law court (ALC) decision to find that the South Carolina Department of Health and Environmental Control (DHEC) properly exercised its authority under the CZMA in denying a stormwater permit for a developer to fill in isolated freshwater wetlands. DHEC denied the permit because it was inconsistent with various provisions of the state coastal management plan (CMP). Upon appeal to the ALC, the ALC issued the permit on the grounds that the CMP, by its own terms, did not apply to the development site and was not enforceable. The court disagreed. The language of the CMP sets forth broad jurisdiction over the coastal zone, which includes the site. The CMP therefore applies even though the site is not linked to a downstream system of coastal rivers and creeks and is not subject to the jurisdiction of the U.S. Army Corps of Engineers. As to the enforceability of the CMP, the language of S.C. Code Ann. §48-39-80 supports the view that the General Assembly meant the CMP policies themselves to be enforceable in the consistency review of state and federal permits. Had the General Assembly intended to require DHEC to promulgate separate regulations, it could have so specified. Moreover, because the CMP was promulgated in accordance with the more rigorous requirements of S.C. Code Ann. §48-39-90, it is valid and enforceable. It need not be promulgated in accordance with the state APA.