Creek v. S.C. Dep't of Health & Envtl. Control
| Decision Date | 05 December 2022 |
| Docket Number | 21-ALJ-07-0433-CC |
| Parties | Friends of Gadsden Creek, Petitioner, v. South Carolina Department of Health and Environmental Control and WestEdge Foundation, Inc., Respondents. |
| Court | South Carolina Administrative Law Court Decisions |
APPEARANCES:
For the Petitioner: Benjamin D. Cunningham, Esq., and Lauren Megill Milton, Esq.
For Respondent DHEC: Bradley D. Churdar, Esq., and Bennett W Smith, Esq.
For Respondent WestEdge: Mary D. Shahid, Esq., and Michael S Traynham, Esq.
This matter comes before the South Carolina Administrative Law Court (the ALC or the Court) pursuant to a request for contested case filed by Friends of Gadsden Creek (Petitioner) pursuant to section 1-23-600(A) of the South Carolina Code (Supp. 2021) and section 44-1-60 of the South Carolina Code (2018). Petitioner challenges the decision of the South Carolina Department of Health and Environmental Control (DHEC or Department) to issue WestEdge Foundation, Inc. (WestEdge) a critical area permit, a Coastal Zone Consistency Certification (CZCC), and a Section 401 Water Quality Certification (collectively, the "Permit"). The Permit, which was issued on July 12, 2021, authorized WestEdge to fill in 3.9 acres of critical area on the west side of the Charleston peninsula. Petitioner requested a final review conference with the Department's Board which the Board denied, rendering the staff decision the final agency decision. Petitioner then filed a request for contested case hearing with this Court on October 18, 2021. The Court conducted a hearing in this matter from June 6-10, 2022.
Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of persuasion and the credibility of the witnesses, I make the following findings of fact by a preponderance of the evidence:
Geomorphological and Cultural History of the Gadsden Creek Area
Gadsden Creek was a tidal creek located on the westside of the Charleston peninsula that fed into the Ashley River. However it, like the rest of the Charleston peninsula, has undergone extensive alteration in the last hundred years. For example, almost fifty percent of the Charleston peninsula has been drained or filled to "reclaim" habitable land, and Gadsden Creek is part of that story of land reclamation. This "reclamation" consisted of filling in natural marshes and other low-lying areas with whatever material was available to create more dry land. At first, the fill consisted primarily of more natural materials-dirt, building materials, offal, trash. Later, postindustrialization, land was also reclaimed using modern landfill waste that is much more hazardous. Historically, reclaimed areas frequently flood, and this has been an on-going problem on the Charleston peninsula despite redevelopment that has tried to mitigate flooding.
The westside of the Charleston peninsula where Gadsden Creek was historically located previously consisted of about one hundred acres of salt marsh with Gadsden Creek flowing through it. The creek had a natural sinuous shape. In the 1850s, the westside became incorporated and, around that time, the City of Charleston implemented a city-wide water management and drainage system for which Gadsden Creek served as a drainage outfall. The creek remained relatively intact at this time and was utilized by the local, primarily African American community. The area was used for wharves, recreational fishing, public bathing, recreational boating, and baptisms, among other things.
However, the nature of the area began to change in 1941 when the Gadsden Green public housing community was completed. At this time, the creek remained intact and older residents of the Gadsden Creek community recall fishing and crabbing in the creek. In 1965, more public housing was added through eminent domain. Single-family wood-framed homes were removed to make room for public housing. Shortly thereafter, from the 1950s to the 1970s, the City of Charleston began to use Gadsden Creek and its surrounding salt marsh as a landfill. As the landfill expanded, the creek became more and more altered by the landfill. The creek ultimately ceased to exist in its natural state and was replaced by a channelized drainage ditch that was established along the periphery of the landfill to provide stormwater drainage to the area when the landfill was closed in the 1970s.[1] Upon its closing, a cap was placed on top of the landfill material, a cap that does not meet current environmental standards.
The current iteration of the creek flows along a drainage easement owned and created by the City of Charleston. It was initially a manmade drainage feature, and it has been moved multiple times since its initial construction; however, portions of the creek have since naturalized and have diverted from the manmade channel. Therefore, the historic waterbody known as Gadsden Creek no longer exists. In fact, calling the current waterbody a "creek" is a misnomer because the word "creek" suggests a natural occurring stream and the current water body is more aptly described as a naturalized drainage feature. See Creek, MERRIAM-WEBSTER'S ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/industrial (last visited October 31, 2022) (defining creek as "a natural stream of water normally smaller than and often tributary to a river"). Nevertheless, for the purpose of easily referencing it in this Order, I will continue to refer to the current drainage feature as Gadsden Creek.
Presently, the creek originates at the corner of Fishburne Street and Hagood Avenue, which is the lowest lying area in the vicinity and is prone to frequent flooding, causing access issues and endangering the public. The creek then flows south, paralleling Hagood Avenue to approximately the corner of Hagood Avenue and Allway Street. Across from the creek on the other side of Hagood Avenue is the Gadsden Green public housing community, which also includes a part of the Charleston Development Academy, a local elementary school. Slightly south of Allway Street, the creek veers west in a dogleg towards the Ashley River. In the area where the creek doglegs toward the river, the creek has migrated from the "ditched channel" and carved a new path, and the space between has become marsh. The creeks then flows through a large culvert under Lockwood Drive before draining into the Ashley River (the Gadsden Creek outfall). On the west side of Lockwood Drive next to the outfall lies Brittlebank Park, a greenspace on the banks of the Ashley River.
All parties agree that a variety of flora and fauna can be found in the re-naturalized creek. For example, the creek is home to sea ox eye, marsh elder, spartina, marsh grass, great blue herons, egrets, redwings, and there is evidence of raccoons and turtles. Generally, the presence of these types of flora and fauna are indicative of a functioning salt marsh ecosystem. Nonetheless, signs of its previous channelized bed remain. Old timber piles from a previous bulkhead are still visible lining parts of the creek bed. The bulkhead was intended to prevent the creek from having contact with the landfill but has since eroded. As a result, the creek runs over the landfill, at least in part.
Friends of Gadsden Creek (FOGC) is a non-profit organization that was incorporated in South Carolina on August 20, 2021. It grew out of an effort to educate individuals about Gadsden Creek and preserve its existence. To achieve its mission, FOGC primarily engages in two types of programming: educational creek walks and creek clean-up efforts.
On educational creek walks, an FOGC member leads members of the community on a walk by and through the creek while discussing its ecological role along with its cultural history. Creek clean-ups are conducted bi-annually, and members clean up trash and otherwise engage in stewardship of the creek. To FOGC members, Gadsden Creek is an important outdoor classroom and links the community's cultural history.
FOGC members use the creek in a variety of ways. For instance, Tamika Gadsden visits Gadsden Creek once or twice a month and facilitates creek walks and Mutual Aid events. John Flowers, who has lived in the Gadsden Green community for the last fifteen years, walks by the creek six to seven times a week and enjoys watching the tide change and observing the wildlife. Dr. Mary Coster takes children from the local secondary schools to the creek to educate them about eco-literacy, African American history, geology, and human geography. Audrey Lisbon, an FOGC member, testified that when she grew up, her family would swim, fish, and crab in the creek, and continued to do so for a while after the City of Charleston began dumping in the landfill. She now sees the creek as a tool for flood prevention.
Salt marsh vegetation like the vegetation found in Gadsden's Creek provides a natural filter for pollutants because it can render harmful substances inert or process them into less harmful substances. As a result, a tidal creek like Gadsden Creek would ordinarily be a natural and valuable way to filter pollutants out of contaminated storm water and flood waters before the water drains into the Ashley River. However, Gadsden Creek, which is subject to the daily undulations of the tide, flows, at least in part, over a landfill, and the landfill cap has eroded in places within the creek bed. Importantly, unlike modern landfills, landfills of this age did not have liners to collect leachate[2] and prevent it from entering the groundwater of the surrounding area. As a result, the erosion of the cap has...
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