Georgetown County League of Women Voters v. Smith Land Co.

713 S.E.2d 287, 393 S.C. 350, 41 Envtl. L. Rep. (Envtl. Law Inst.) 20258, 2011 S.C. LEXIS 226

• Court: Supreme Court of South Carolina
• Decided: July 11, 2011
• Docket: 27006
• Status: Published

Opinions

Justice PLEICONES.

This is an appeal from an order dismissing appellant’s (League’s) declaratory judgment action seeking a declaration that respondent had unlawfully filled wetlands and an injunction requiring it to restore those wetlands. Finding that the circuit court erred in holding that: (1) the South Carolina Department of Health and Environmental Control (DHEC) lacks jurisdiction to regulate these wetlands; (2) respondent did not violate the South Carolina Pollution Control Act (Act);¹ and (3) the Act does not create a private cause of action, we reverse.

Respondent owns a .332 acre lot in Pawleys Island, .19 acres of which are isolated wetlands often referred to as Carolina Bays. Before developing the lot, respondent notified both the Army Corps of Engineers and DHEC of its plans. While the Corps cautioned respondent to notify DHEC before performing the work and respondent did so, it received no response from DHEC. Respondent then filled the wetlands.

The League then filed this suit seeking a declaratory judgment and related equitable relief. After a hearing, the circuit court held that DHEC does not have jurisdiction over isolated wetlands, that respondent complied with all requirements before filling the wetlands, and that the League cannot maintain this private suit under the Act. The League appeals.

ISSUES

1) Did the circuit court err in finding DHEC did not have jurisdiction over the isolated wetlands on respondent’s lot?

2) Did the circuit court err in holding that respondent met all the legal prerequisites for filling the wetlands?

3) Did the circuit court err in finding the League could not maintain a private cause of action under the Act?

ANALYSIS

I. • DHEC Jurisdiction

The circuit court held that the isolated wetlands located on respondent’s lot were without the jurisdiction of both the Army Corps of Engineers and DHEC, relying upon Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). As we explained in Spectre, LLC v. S.C. Dep’t of Health and Enviro. Cntrl., 386 S.C. 357, 688 S.E.2d 844 (2010), Solid Waste holds that the Corps may not regulate isolated wetlands, but has no impact on DHEC’s ability, as a state agency, to do so. While Spectre decided DHEC’s continuing authority under the coastal management program developed pursuant to the statutory mandate found in the Coastal Zone Management Act, this Act specifically defines the waters subject to its regulation by DHEC to include isolated wetlands. See S.C.Code Ann. § 48-1-10(2) (2008).

We find the circuit court erred in holding DHEC lacked jurisdiction over the isolated wetlands located on respondent’s Pawleys Island lot.

II. Compliance

The circuit court also held that respondent “complied with all of its legal obligations prior to filling the isolated wetlands” located on its lot. The League argues, and we agree, that respondent was required to obtain a DHEC permit under S.C.Code Ann. § 48-l-90(a) (2008) before it could lawfully fill the wetlands by discharging “orange sand” into these wetlands. See § 48-1-10(6) (definition of fill substances requiring a DHEC permit includes sand).

We reverse the circuit court’s order finding that respondent complied with all legal requirements for filling the wetlands as it is uncontroverted that it did so without obtaining a permit from DHEC as required by the Act.

III. Private Cause of Action

The circuit court dismissed the League’s complaint, finding that there is no private right of action under the Act, and thus the League lacked standing. We reverse.

“In determining whether a statute creates a private cause of action, the main factor is legislative intent[.]” Doe v. Marion, 373 S.C. 390, 396, 645 S.E.2d 245, 248 (2007). Legislative intent to grant or withhold a private right of action for a violation of the statute is determined primarily from the language of the statute. Id.

The Act provides that “causes of action resulting from the violation of the prohibitions contained in this chapter inure to ... any person or persons damaged as the result of any such violation.” § 48-1-250. The word “inure” is defined, in part, as “to become legally effective” and “accrue.” Merriam-Webster’s Third New Int’l Dictionary 1188 (2002). The League alleges that its members have been harmed by respondent’s unlawful filling of the wetlands in that the filling has destroyed bird and wildlife habitats, impacting the members’ ability to enjoy their recreational and aesthetic interests, and that they have therefore been damaged within the meaning of the Act. We agree that the League had alleged damages sufficient to allow it to maintain this suit pursuant to § 48-1-250.²

The circuit court found there was no private cause of action based upon S.C.Code Ann. § 48-1-220: “Prosecutions for the violation of a final determination or order shall be instituted only by [DHEC] or as otherwise provided for in this chapter.” Here, there is neither a final determination nor an order. Moreover, this suit cannot be characterized as a “prosecution.” Section 48-1-220 is irrelevant.

We find the Act provides for a private cause of action in § 48-1-250,³ and reverse the circuit court’s order finding no such suit can be maintained by the League under the Act.

CONCLUSION

The circuit court’s order is

REVERSED.

TOAL, C.J., and BEATTY, J., concur. HEARN, J., concurring in part and dissenting in part, in a separate opinion, in which KITTREDGE, J., concurs.

1 . S.C.Code Ann. § 48-1-10 et seq. (2008 and Supp.2010).

2 . The dissent addresses the League’s individual and associational standing to maintain this suit. This issue was neither raised nor ruled upon below, nor do the parties mention it in their briefs. There is no standing issue before the Court other than that encompassed in the ruling that the Act does not create a private cause of action. Cf., South Carolina Dep't of Transp. v. Horry County, 391 S.C. 76, 705 S.E.2d 21 (2011) (issues must be raised and ruled upon to be preserved for appellate review).

3 . The dissent would find there is no private cause of action under the Act based upon § 48-l-90(b). Leaving aside for the moment the fact that the circuit court order rests exclusively and erroneously on § 48 — 1— 220, it is the true that § 90(b) grants the State a cause of action for violations of § 48-l-90(a). That cause of action, however, is for damages for harm to "fish, shellfish, aquatic animals, wildlife or plant life.” Section 90(b) allows other governmental agencies to bring actions for damages caused by a violation of § 90(a), but does not purport to limit a private party's right to seek remedies other than damages, such as the declaratory and injunctive relief sought by the League here. Therefore, the right to maintain this private cause of action is found in § 48-1-250, and is not limited by anything in § 48-1-220, as was held by the circuit court, or in § 48 — 1—90(b), as is posited by the dissent.