Corps should not skirt permits to speed project

info@islandpacket.comNovember 9, 2012 

Many points are up for debate about dredging the Savannah River, but one point should not be: South Carolina should have a say in the project given its potential impact on our natural resources.

That say comes in the form of the water quality certification the U.S. Army Corps of Engineers wants to circumnavigate in the interest of starting as soon as possible the work to deepen the river from 42 feet to 47 feet for more than 30 miles.

It also could come in a permit under the state's Pollution Control Act. The corps plans to dump dredge spoil, potentially contaminated with toxic materials, on the site of the proposed deep-water port in Jasper County.

The S.C. Supreme Court has now made clear who should speak for South Carolina on dredging in the lower Savannah River -- the state's Savannah River Maritime Commission.

The court ruled in no uncertain terms that the Department of Health and Environmental Control had no right to negotiate terms for a water quality permit with Georgia and corps officials. That job belongs to the commission, as laid out in the 2007 law creating the commission.

DHEC staff a year ago had turned down the corps' water quality certification, citing in part potential damage to endangered wildlife and critical wetlands. But Gov. Nikki Haley asked the DHEC board she appointed to reconsider the staff decision. Staff and Georgia officials negotiated a settlement in a matter of hours, and the DHEC board promptly approved it.

An egregious aspect of the Haley-prompted negotiations was that key state agencies that provide valuable input for such permits were shut out.

The permit conditions included money to inject oxygen into the Savannah River where the dredging occurs. Georgia also agreed to transfer as much as 1,690 acres of salt marsh to the state South Carolina as compensation for freshwater wetlands that will be affected.

That offers no help for the Savannah Wildlife Refuge, a tidally influenced freshwater wetland system that already has suffered from previous dredging projects.

Environmental groups and the Maritime Commission, which had opposed the water quality permit, challenged DHEC's right to negotiate the agreement, leading to the Supreme Court decision.

That ruling also states that the staff decision to deny the water quality permit is the agency's "decision of record." That means the corps has no water quality permit, which it needs to start construction.

A very troubling aspect of recent developments in this legal morass is the corps' move to get around the water quality certification required under the federal Clean Water Act. In a letter dated Oct. 26, just a week before the state Supreme Court's decision, the corps asks Congress for an exemption to avoid "inappropriate delays" due to legal challenges.

If Congress authorizes the project or appropriates funding, the corps contends in the letter, that amounts to an exemption. The corps hopes to get funding for the $652 million project in the next budget year and start work by mid-2013. Georgia is to pay 30 percent of the cost.

Fortunately, a federal lawsuit over whether the corps needs a permit under South Carolina's Pollution Control Act has put a stop to that at least for now. The federal judge overseeing the case has ordered the parties into mediation and told the corps to keep him apprised of any communication with Congress.

Haley's intervention, the last-minute negotiations and the DHEC board's approval of the water quality permit all amount to inappropriate maneuvering in a project with serious environmental consequences. So, too, is the corps' request for an exemption.

The project should be weighed on its merits and approved or denied based on that. Any permit conditions should be negotiated carefully with as much input as possible.

The legal challenges that can come up are a necessary component of the checks and balances in the process; they are not "inappropriate delays."

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