The South Carolina Supreme Court has ruled that the state’s Department of Health and Environmental Control (DHEC) lacked authority to approve a Clean Water Act (CWA) section 401 water-quality certification for a project to deepen the Savannah River. Savannah Riverkeeper v. S.C. DHEC, No. 27182 (S.C. 11/2/12). The certification was required before the U.S. Army Corps of Engineers (Corps) could issue a dredge-and-fill permit under CWA section 404 for a project that involved efforts to deepen the river’s navigation channel to facilitate access to the Port of Savannah by oceangoing vessels.
At issue was whether it was appropriate for DHEC to negotiate with the Corps, because a separate agency, the Savannah River Maritime Commission (Commission), has statutory authority “to represent this State in all matters pertaining to the navigability, depth, dredging, wastewater and sludge disposal, and related collateral issues in regard to the use of the Savannah River as a waterway for ocean-going container or commerce vessels.” When DHEC initially considered the water-quality certification, the Commission objected, and DHEC proposed denying the Corps’ request for certification. Subsequent negotiations with the Corps resulted in DHEC issuing the water-quality certification, and the South Carolina Supreme Court found that these actions “effectively granted the permit.”
In a split decision, the court ruled that the statute’s plain language establishing the Commission gave it authority and responsibility to represent the state in connection with the permit. Thus, the court determined that only the Commission could act in connection with the proposed Corps permit, which the court found was “for purposes of navigation by ocean-going commerce and container vessels,” as provided in the statute. The court further held that DHEC had acted outside its authority in negotiating a resolution with the Corps and declined to defer the DHEC’s decision. The majority further held that the Commission’s conditional staff denial of the water-quality certification had become the state’s final action and that future activity “must be directed to the Commission.” A dissenting justice argued that the matter should be decided by a state administrative court.