What's at Stake
Wetlands are highly productive ecosystems, defined as areas covered or saturated with enough water to support plants that thrive in wet soils. Since colonial times, South Carolina has lost about one-third of its original wetland acreage. Wetlands deliver a number of valuable services: they reduce flooding damage, store water in times of drought, provide habitat to many species and recharge and filter groundwater supplies. Water quality is also improved when wetlands, commonly referred to as "nature's kidneys," trap nutrients and sediments.
The federal Clean Water Act's Section 404 permitting program has slowed wetlands loss in the past several decades, but federal protections are diminishing today in response to court decisions that have muddied the waters as to which wetlands are protected by federal law. DHEC once estimated that these at-risk wetlands accounted for about 300,000 acres or about nine percent of all the state's wetlands—but the total acreage of unprotected wetlands could now be much higher. Of particular concern are wetlands not adjacent to large navigable rivers, including Carolina Bays, seepage pocosins and pond cypress swamps. Those occurring in the midlands and upstate are much less common and are therefore far less "replaceable."
Challenges
Many states have used state regulations to replace lost federal protections. The General Assembly has considered the wetlands issue several times in recent years, but a consensus bill was not enacted. South Carolina finds itself in something of a stalemate because of existing state law, which conservationists, DHEC and the only court to examine the issue construe to protect all wetlands. Others disagree but run the risk of violating state law if they disregard existing state protections.
Both developers and the conservation community understand the need for clear state rules that pick up where federal regulations leave off. Because continued debate on a federal level leaves crucial ecosystems at risk and those seeking permits without direction, all will benefit from a state law that fills in the gap without overlapping.
Next Steps
The General Assembly needs to continue its work on a bill that truly protects those wetlands left unprotected after recent federal court decisions. The state also needs to gather and analyze data with respect to impacts on wetlands and other ecosystems due to development and other related activities.
Decision-makers need an accounting of the wetlands acreage impacted in South Carolina over the past five to ten years, how many permits were denied, how much mitigation was required for impacts by class of wetlands, and the extent to which mitigation projects successfully and enforceably replaced lost wetlands functions. Scientific reports have shown, for example, that mitigation projects nationally tend to fail at replacing functions and often are not enforced. If mitigation is continued as a means of enabling permits, its effectiveness needs to be quantified and demonstrated.
For more information:
Jimmy Chandler, SC Environmental Law Project, 843-527-0078
Blan Holman, Southern Environmental Law Center, 843-720-5270
Kim Dianna Connolly, USC Law, 803–777-6880
Fast Facts
Federal protections over wetlands oscillate due to court decisions driven by legal theories rather than the science that shows that even the most remote wetlands are valuable for preventing floods, reducing drought and cleaning water.
Isolated wetlands are widely recognized as some of the most productive natural resources in SC and are especially important wood duck nesting habitats.
SC's isolated wetlands store an estimated 45 billion gallons of water—enough to inundate Columbia to a depth of 20 feet.