BLUFFTON — Almost two years ago, the U.S. Supreme Court stripped federal safeguards from many of the nation’s wetlands, leaving some South Carolina bogs, ponds and swamps vulnerable to development.
In the regulation vacuum, some states have moved to protect their newly susceptible environments. But patchwork protection from state lawmakers in Columbia have left counties, cities and towns on the frontline in South Carolina to preserve much of the 7.5 million acres of wetlands.
Bluffton is the first local government in the Palmetto State to pass a wetlands protection ordinance in response to the high court decision. Developers will now need to receive a permit from town staff to carry out projects that disturb wetlands, and local officials will have new ability to penalize scofflaws.
“We care about the environment and we have to protect the very things that are so instrumental in the natural protection process,” Mayor Larry Toomer said. Later adding, “You have to have these protections in place before somebody puts in for a building permit or a development permit.”
Many geographical features classify as wetlands, among them tidal marshes, oxbow lakes and vernal pools. These areas become habitats for wildlife, fish, plants and trees, which can help absorb pollution. During storms, they can take in rising waters to prevent flooding that damages homes and risks lives.
Development over wetlands is charted by the Clean Water Act, the 1972 federal landmark legislation that created the framework for regulating pollution in American waterways. A 2023 Supreme Court decision narrowed the definition of a wetland receiving federal protection.
In 2007, Idaho couple Michael and Chantell Sackett began to backfill their wetland property so they could build a home. Their property was near a ditch, which connected to a creek that fed a lake, causing the EPA to demand the couple reverse course or pay fines exceeding $40,000 per day. Their lawsuit would span 16 years.
On one issue, all justices sided with the couple and reversed an appellate court ruling against them. On another, writing for a 5-4 majority, Justice Samuel A. Alito changed the definition of federally regulated wetlands.
Under the previous definition, wetlands that affect the physical, chemical or biological integrity of navigable waterways (like rivers or lakes) would receive protection. After the narrow Supreme Court decision, the federal government would only have Clean Water Act jurisdiction over wetlands that have a "continuous surface connection" with other such water features. According to a rough estimate, 37 percent of South Carolina’s wetlands lost federal purview. Isolated wetlands were left vulnerable.
Shortly after the ruling, Bluffton municipal staff began hearing from developers who wanted to know how the town would address the regulatory deficit. They didn’t know, said Bill Baugher, director of the Watershed Management Division.
“We didn’t have a plan,” Baugher said, noting that Bluffton had relied on the EPA and Army Corps of Engineers to regulate development over its wetlands. “But now that was no longer the case, we had a lot of vulnerable areas we wanted to make sure stayed in their current state.”
The town lost 513 acres of wetlands from 2001 to 2021, according to the S.C. Department of Natural Resources. If all contained together, that would nearly cover Old Town Bluffton. Local officials wanted control over their slowly vanishing natural resource that is a large part of making the town what it is — a waterfront community along the May River just before the bridge to Hilton Head Island.
Until the 1990s, Bluffton had been a quaint town of about 750 people. Over the past quarter century, it has ballooned from its former one-square-mile footprint to more than 50-times that size and now with 35,000 residents — and more growth coming.
South Carolina protections over the newly vulnerable wetlands are limited. Developers or builders that may discharge into Clean Water Act-protected waters must first receive a permit from the state before requesting permission from the federal government. For South Carolina’s eight coastal counties, the Department of Environmental Services reviews state and federal permit applications for consistency with its coastal management program. Towns like Bluffton, which performs its own stormwater permitting, leave projects over isolated wetlands without a state or federal review.
“There is still a question about the extent of the state's authority because it is an indirect authority that is ultimately derived from the Clean Water Act,” said Jessie White, south coast office director of the Coastal Conservation League. “The town is trying to exercise more direct local control that goes above and beyond what the state may or may not do.”
After the Sackett decision, lawmakers in Colorado passed legislation to protect its wetlands and streams. Other states also responded by introducing laws, according to the Environmental Law Institute. The S.C. Office of Resilience recommended the state regulators protect their isolated wetlands. But without action in Columbia, such responsibility is left to local governments.
Soon, Bluffton staff began collaborating with the South Carolina Environmental Law Project, which had drafted a model for local governments seeking to protect their wetlands.
“You’re trying to make something that is least burdensome but also gives much-needed protection for wetlands that have been exposed under this federal court decision and others,” said Amy Armstrong, executive director of the legal organization.
The development ordinance Bluffton passed March 11 was an interim measure. The town is waiting for a report from a contractor that will inventory its wetlands, allowing for officials to pass a more precise measure.
SCELP is lobbying lawmakers to push for statewide protection, but they expect their effort will gain more traction once a long-anticipated report on the state’s watershed from the Office of Resilience becomes public.
The federal government, however, is plowing ahead.
A memo from the Environmental Protection Agency on March 12 rescinded guidance from the Biden Administration on how to interpret the “continuous surface connection” requirement and announced the agency will start collecting public comment on how to interpret the ambiguously worded Sackett decision, said Adam Gold, manager of climate resilient coasts and watersheds science at the Environmental Defense Fund. Uncertainty about what the Clean Water Act now protects is causing confusion among environmentalists, developers, and landowners.
“There's no clear, stable benchmark for what's protected, and that's hopefully something we can improve with stronger federal protections in the future,” Gold said. “But in the meantime, filling the gap at the state and local level is the best we can do.”
Other jurisdictions in South Carolina may follow Bluffton’s lead. Georgetown County’s comprehensive plan includes passing a wetland protection ordinance.
Until then, wetlands around the state will be left vulnerable to developers seeking to capitalize on the South Carolina boom — and lawmakers scrambling to keep up.
Toby Cox contributed to this report.
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