Pollution Control Act Amendments
Our Position: oppose
Bill Number: H.4654
Sponsor: Rep. Nelson Hardwick, R-Horry
Legislative Session: 11/12
The Sierra Club opposes H.4654 in its current form. H.4654 must be amended to retain an effective Pollution Control Act. Background: Since 2001, when the US Supreme Court issued a decision that the Corps of Engineers no longer had jurisdiction over isolated wetlands, the regulation of these wetlands has been in some doubt. In the summer of 2011 the SC Supreme Court issued an opinion in Georgetown County League of Women Voters vs. Smith Land Co. that stated basically stated two important points:
• DHEC has jurisdiction over isolated wetlands.
• Citizens have the right to sue under the Pollution Control Act when they are injured by environmental pollution.
H.4654 would repeal both of those rights. In doing so it would also dissolve a couple of important law suits. A huge example being a citizen suit against the US Corps of Engineers, which has gotten a water quality certification from DHEC, but no permits to pollute SC waters or wetlands. And, we are assured that they don’t plan to apply for SC pollution permits unless forced by federal courts. The proposed amendment would :
• Retain citizens right to sue when directly injured by environmental pollution, and
• Give DHEC jurisdiction of isolated wetlands—exempting up to ½ acre and allowing for permits for areas greater that ½ acre.
These amendments give greater clarity to isolated wetland protection and also, while protecting citizens private right of action, it protects individuals and businesses -large and small- from frivolous suits. Protection of isolated wetlands is necessary to protect groundwater, wetlands, water quality, wildlife habitat and provide flood control, filtration and storage. These valuable resources are key to attracting people and businesses to South Carolina and vital for public health.
We urge you to oppose weakening the historic Pollution Control Act to lessen the state’s oversight of its waters or to take away the right of a citizen to protect his or her property from pollution. Rather than vote to weaken the PCA or restrain citizens’ rights, DHEC should be directed to do its job and adopt a fair and protective permitting program to ensure predictability and clarity for all stakeholders.
Contact members of the House. Contact information found at: http://www.scstatehouse.gov/member.php?chamber=H
QUESTION: Why do we need a provision allowing citizens to bring enforcement action? ANSWER: The citizens’ suit provision is a conservative principle that allows private parties and persons to protect their property from toxics and flooding and adverse impacts as a result of pollution. This is particularly important, given the failure of DHEC to protect citizens from pollution.
QUESTION: Can any “Joe Blow” bring a citizens enforcement action? ANSWER: No. In order to bring an enforcement action under the S.C. Constitution, any party must prove that he or she has been harmed by the illegal discharge of pollutants or that the discharge is so severe and significant that there is a public need to remedy the pollution. Any citizen or group must present evidence to prove that they meet these standards, which acts as a bar to frivolous suits. In addition, SC has in place the Frivolous Civil Proceedings Sanction Act to prevent any unwarranted or unsubstantiated lawsuits.
QUESTION: Will this case open the door for a flurry of lawsuits? ANSWER: NO. The citizens’ suit provision in the Pollution Control Act has been in place for over 30 years and has only been used three times It’s important to note that the Pollution Control Act does not allow for damages or for recovery of costs or fees for the prevailing party.
QUESTION: Will this case prevent a farmer from filling in a road rut or mudhole? ANSWER: NO, since those kinds of man-made wet features should not meet the definition of waters of the state. As for actual wetlands, DHEC should provide reasoned exemptions and exceptions just like the federal program does for normal farming and forestry.
QUESTION: Does protection of wetlands harm economic growth? ANSWER: No. In fact, South Carolina enjoyed tremendous growth throughout the nineties and beyond, until U.S. Supreme Court decisions in 2001 called into question federal controls over Carolina Bays and other similar wetlands. The fact is, DHEC had regulated these wetlands for years, and a new regulatory program would ensure more predictability and clarity, which are key for development.