By Correy E. Stephenson
The issues of stormwater runoff, a polluted urban creek and tidal flooding combined to create an extremely rare circumstance where it was in the public’s interest to approve a permit to fill in a creek and build a mixed-use development in Charleston, the South Carolina Supreme Court has ruled in a nonprecedential opinion.
Before the 1950s, Gadsden Creek — located on the west side of the city of Charleston — naturally flowed through 100 acres of salt marsh that began at the bank of the Ashley River and ended upland at the Gadsden Green community.
From the mid-1950s to 1969, the city used the salt marsh as a landfill. Without the Clean Water Act in place at the time, the landfill was not properly lined.
In the early 1970s, the city capped the landfill with soil and rerouted stormwater through the landfill throughout the 1980s.
Over time, most of the capped landfill was developed, becoming the WestEdge Project neighborhood. In addition, nature reclaimed the stormwater ditch, turning it into a creek. Known as Gadsden Creek, it is currently 3.9 acres of functioning saltmarsh ecosystem, frequented by wildlife, including herons, crabs, trout, sheepshead and raccoons.
The creek also is polluted.
WestEdge applied to the Department of Health and Environmental Control (DHEC) for a permit to partially dredge the landfill under Gadsden Creek to install stormwater pipes, as well as to cap the creek to eliminate flooding and create buildable land for a mixed-use development.
As part of DHEC’s consideration of the permit, WestEdge gathered samples of leachate during low tide and had them analyzed for contaminants, which were discovered to have high levels of mercury, lead and other toxins.
WestEdge maintained it would not be feasible to keep or restore Gadsden Creek because, even if it could mitigate flooding, the leachate-contaminated water problem could not be solved without re-capping the landfill by filling in the creek.
DHEC granted WestEdge’s permit application.
Friends of Gadsden Creek requested a contested case hearing. In addition to testimony on the history of Gadsden Creek, it was heard from community members in support of keeping the creek and competing experts about the feasibility of restoring the creek.
The administrative law court (ALC) then affirmed DHEC’s grant of WestEdge’s permit.
Friends of Gadsden Creek appealed, and the parties jointly certified a motion to the state’s highest court.
In a unanimous opinion with no precedential value, the Supreme Court affirmed.
“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 multifaced problem on the west side of the Charleston peninsula,” the per curiam court wrote.
The court was “greatly disturbed and disheartened” by the loss of Gadsden Creek in its natural form during the 1950s and ’60s, an “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 ecosystem,” the court said. “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.
“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 the case are without precedent, the court added, and the decision should not be used or interpreted as precedent for any other context or permitting situation.
Mary D. Shahid of Nexsen Pruet in Charleston, who represented WestEdge, was “thrilled” with the court’s decision.
“I commend the court for acknowledging that the other side fought a hard fight and understanding where they were coming from, and it did the environmental community a favor by making this an unpublished ruling,” she said.
In a statement, Benjamin D. Cunningham of the S.C. Environmental Law Project, who represented the Friends of Gadsden Creek, said his client was disappointed by the ruling.
“The only small positive to take from the order is that the Court was clear that the ruling does not have any precedential value so it cannot be used to justify the destruction of additional public trust resources throughout South Carolina.”
The case is Friends of Gadsden Creek v. South Carolina Department of Health and Environmental Control, No. 2023-000006.