Gadsden Creek legal battle goes before SC Supreme Court
SPARTANBURG, S.C. (WCBD) – A years-long legal battle surrounding the future of the historic Gadsden Creek was taken up by South Carolina’s highest court Wednesday morning.
“We’re not analyzing whether Gadsden Creek factually flows north or south or is six or eight feet deep. We’re analyzing subject matter that has been delegated to the Department of Health and Environmental Control by statute that requires expert analysis,” said Justice John Cannon Few during questioning.
The dispute stems from an October 2021 lawsuit filed by the South Carolina Environmental Law Project on behalf of the group, Friends of Gadsden Creek. The group attempted to challenge a permit issued by DHEC which would allow WestEdge Foundation to partially fill in and build on nearly four acres of wetlands at Gadsden Creek for development.
An appeal was filed after the SC administrative law court judge sided with the developer in 2022. That move led to Wednesday’s court hearing where the Justices heard arguments from all parties involved before they decide if they will affirm the permit.
“The larger Gadsden Creek, the historic sinuous, natural tidal feature was over 100 acres. All of that was filled in and most of the development in that portion of the Charleston Peninsula is now sitting on top of a landfill,” said Michael Traynham, the attorney for WestEdge Foundation.
Traynham told the Justices, the four-acre area is actually a manmade ditch through a landfill. He said the historic tidal creek was filled by the City of Charleston years ago which in turn has led to exposure to harmful chemicals and flooding.
He also argued against the appellant’s interpretation of the DHEC regulation, 30-12, which addresses Special Project Standards for Tidelands and Coastal Waters. DHEC’s attorney, Brad Churdar, backed the sentiment.
“I believe that the ALC correctly found that 30-12 G controls over the program document, and I’d ask you to please affirm that,” Churdar said to the Supreme Court.
Attorney Ben Cunningham had the opportunity to reply on behalf of SCELP who contended the ALC did not properly apply the critical area and water quality regulations.
“These aren’t pristine wetlands, but wetlands rarely are pristine. And then if you’re going to get into classification of ‘these are more deserving of preservation than others,’ one; that’s not what DHEC has done. Its critical area. Critical area is critical area is critical area. This isn’t a second-class critical area,” Cunningham said in court.
Justice John Kittredge said the five justices would discuss the case together on Wednesday before a decision is written. He predicted that could take a few months.
