Septic Tank Lawsuit

ELECTRONICALLY FILED - 2022 Nov 10 10:23 AM - CHARLESTON - COMMON PLEAS - CASE#2022CP1005192
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

)
COUNTY OF CHARLESTON ) NINTH JUDICIAL CIRCUIT
South Carolina Coastal Conservation )

League and Charleston Waterkeeper, )
) Case No. 2022-CP-10-_____
Plaintiffs, )
)
vs. ) SUMMONS
)
South Carolina Department of Health and )
Environmental Control, )
)
Defendant. )
_____________________________________ )
TO: THE ABOVE-NAMED DEFENDANT
YOU ARE HEREBY SUMMONED AND REQUIRED to answer the Complaint in the
above-entitled action, a copy of which is herewith served upon you (and which has been filed with
the Office of the Clerk of Court), and to serve a copy of your Answer upon the above-named
parties within thirty (30) days after the date of such service, exclusive of the day of service; and if
you fail to answer the said Complaint within such time, the relief demanded in the Complaint will
be rendered against you by default.
S.C. ENVIRONMENTAL LAW PROJECT
s/ Emily M. Nellermoe __
Emily M. Nellermoe (SC Bar No. 102330)
Leslie Lenhardt (SC Bar No. 15858)
510 Live Oak Drive
Mt. Pleasant, SC 29464
Tel: (843) 527-0078
[email protected]
[email protected]
Counsel for Plaintiffs

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
)
COUNTY OF CHARLESTON ) NINTH JUDICIAL CIRCUIT
South Carolina Coastal Conservation )

League and Charleston Waterkeeper, )
) Case No. 2022-CP-10-_____
Plaintiffs, )
) COMPLAINT FOR DECLARATORY
vs. ) JUDGMENT
) (Non-Jury)
South Carolina Department of Health and )
Environmental Control, )
)
Defendant. )
_____________________________________ )
Plaintiffs South Carolina Coastal Conservation League and Charleston Waterkeeper, by
and through undersigned counsel, respectfully move this Court pursuant to S.C. Code Section 15-
53-10, et seq. for a declaratory judgment in this matter. In support of this Complaint, Plaintiffs
submit the following:
NATURE OF THE CASE
1. This is a civil suit brought against Defendant Department of Health and
Environmental Control (“DHEC” or “the Department”) pursuant to the Uniform Declaratory
Judgments Act, S.C. Code Section 15-53-10, et seq. Plaintiffs seek declaratory and injunctive
relief and other relief the Court deems appropriate to remedy Defendant’s failure to properly
review individual on-site wastewater systems (also known as septic tanks or septic systems) for
consistency with the state’s Coastal Management Program, and Defendant’s additional failure to
publicly notice septic applications and permits.
2. Defendant’s failures place the public’s health at risk and expose our state’s
waterways, marshes, beaches, and fisheries to significant, documented harms that can be traced to
untreated sewage from malfunctioning, ill-maintained, and/or ill-placed septic systems.
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JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over this action and may issue declaratory
and/or injunctive relief pursuant to the Uniform Declaratory Judgments Act, S.C. Code Section
15-53-10, et seq.
4. This Court has personal jurisdiction over the parties because Plaintiffs are
organizations based in Charleston, South Carolina. Defendant is a state agency with regulatory
authority over activities occurring in the eight coastal counties, including Charleston County.
5. Venue is proper in this Court because Defendant has regulatory authority over the
coastal zone, including Charleston County, and its Office of Ocean and Coastal Management
(“OCRM”), which conducts reviews for Coastal Zone Consistency Certification in accordance
with the State’s Coastal Management Program, is located in Charleston County.
PARTIES
6. Plaintiff South Carolina Coastal Conservation League (“the League”) is a non-
profit 501(c)(3) membership corporation organized and existing under the laws of the State of
South Carolina, and headquartered in Charleston, South Carolina. The League has over 4,000
members residing in South Carolina, and works to protect coastal landscapes, abundant wildlife,
clean water, and quality of life for South Carolina’s citizens and its members through various forms
of advocacy and education. The League and its members have a strong interest in advocating for
protection of the environment and preserving the state’s coastal resources for their use and
enjoyment.
7. Plaintiff Charleston Waterkeeper (“Waterkeeper”) is a non-profit 501(c)(3)
organization headquartered in Charleston, South Carolina, founded to protect and restore
Charleston’s waterways. Waterkeeper has a strong interest in advocating for environmental
protections that promote clean rivers, creeks, and beaches within the County. Waterkeeper
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encourages community members, its volunteers, and its donors to participate in public advocacy
on issues that affect water quality, wildlife, and the health of public trust waterways. Waterkeeper
also regularly conducts water quality testing of the County’s waterways and reports its findings to
the public.
8. Plaintiff organizations and their members have significant, particularized, and
concrete interests in the application of the South Carolina Coastal Tidelands and Wetlands Act,
which is designed to protect sensitive coastal resources. The League routinely seeks to prevent or
reduce endangerment to human health and the natural environment resulting from activities within
the eight coastal counties. See, e.g., S.C. Coastal Conserv. League v. S.C. Dep’t Health & Envtl.
Control, 434 S.C. 1 (2021); Kiawah Dev. Partners v. S.C. Dep’t Health & Envtl. Control, 411 S.C.
16 (2014); Spectre v. S.C. Dep’t Health & Envtl. Control, 386 S.C. 357 (2010). Waterkeeper
similarly seeks to prevent and reduce such harms, specifically in Charleston County. See, e.g.,
Charleston Waterkeeper v. Frontier Logistics, 488 F.Supp.3d 240 (D.S.C. 2020).
9. Plaintiffs’ members live near, recreate on, fish from, and regularly use the coastal
waters in South Carolina, and specifically the waters and wetlands in and around Bulls Bay in
Awendaw, Cape Romain National Wildlife Refuge, James Island Creek, Shem Creek and
numerous other waterbodies that have been or will be impacted by the use of septic systems. These
members intend to live on, recreate on, fish from, and use these water resources in the future.
These individuals use and enjoy our state’s coastal waters for purposes of commerce, recreation,
conservation, education, and aesthetic enjoyment, including but not limited to shellfish harvesting,
fishing, boating, birdwatching, and sightseeing. Further, these individuals have been and will
continue to be harmed by pollution into waterways caused by septic systems, adversely impacting
their ability to make such uses.
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10. Malfunctioning septic systems harm Plaintiffs’ members in part because septic
discharges contain untreated human waste, pathogens, and other pollutants that are known to
present public health risks and endanger both human and environmental health. If Defendant
continues to permit septic systems without regard to the water table, soil characteristics,
geography, or water quality classifications and designations, especially in high densities,
Plaintiffs’ members are persons for whom aesthetic and recreational values of the area have been
and will continue to be lessened.
11. Defendant is failing to carry out its legally-mandated duties in failing to apply the
plain language requirements of the Coastal Tidelands and Wetlands Act, S.C. Code Section 48-
39-10, et seq., by failing to assess whether installations of septic tanks in the coastal zone comply
with the state’s Coastal Management Program. Therefore, Plaintiff organizations and their
members seek to remedy these agency omissions with this action.
12. Defendant is a state agency created by statute and administered under the
supervision and control of the South Carolina Board of Health and Environmental Control. See
S.C. Code Ann. § 44-1-20. DHEC’s Office of Ocean and Coastal Resource Management
administers the state’s Coastal Management Program and has broad management authority over
activities within the eight-county coastal zone.1 DHEC also administers the state’s septic tank
permitting program. S.C. Reg. 61-56.
LEGAL BACKGROUND
Coastal Tidelands and Wetlands Act & the Coastal Management Program
13. In 1972, finding an “urgent need to protect and to give high priority to natural
systems in the coastal zone,” the United States Congress promulgated the Coastal Zone
1
The “coastal zone” is comprised of Charleston, Beaufort, Berkeley, Colleton, Dorchester, Georgetown,
Horry, and Jasper counties.
4
Management Act, 16 U.S.C. Section 1451, et seq., declaring a national policy “to preserve, protect,
develop, and where possible, to restore and enhance, the resources of the Nation’s coastal zone for
this and succeeding generations.” Thereafter, South Carolina promulgated the Coastal Tidelands
and Wetlands Act (“the Act”), in 1977. S.C. Code Ann. § 48-39-10, et seq.
14. In promulgating the Act, the General Assembly found that “increasing and
competing demands upon the lands and waters of our coastal zone occasioned by population
growth and economic development . . . have resulted in the decline or loss of living marine
resources, wildlife, nutrient-rich areas, [and] permanent and adverse changes to ecological
systems[.]” S.C. Code Ann. § 48-39-20. The General Assembly also found that the coastal zone
is “ecologically fragile and consequently extremely vulnerable to destruction by man’s alterations”
and that “[i]mportant ecological, cultural, natural, geological and scenic characteristics, industrial,
economic and historical values in the coastal zone are being irretrievably damaged or lost by ill-
planned development that threatens to destroy these values.” Id. Therefore, the General Assembly
declared that “the basic state policy in the implementation of [the Act] is to protect the quality of
the coastal environment and to promote the economic and social improvement of the coastal zone
and of all the people of the State.” S.C. Code Ann. § 48-39-30(A).
15. Defendant, by and through OCRM, is charged with the Act’s administration,
including the implementation and enforcement of a comprehensive coastal management program.
See S.C. Code Ann. § 48-39-80. To that end, the Department promulgated the Coastal Management
Program (“CMP”), which was approved by the General Assembly in 1979 and amended once in
1993. The CMP contains binding norms applicable to activities in the coastal zone and has been
upheld by the South Carolina Supreme Court as valid and enforceable. See, e.g., Spectre v. S.C.
Dep’t Health & Envtl. Control, 386 S.C. 357, 688 S.E.2d 844 (2010). In developing the CMP,
DHEC was directed to take into account “all lands and waters in the coastal zone,” which
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encompasses the eight coastal counties, including Charleston County. S.C. Code Ann. § 48-39-10.
16. The Act directed DHEC to create two distinct regulatory programs: (1) a permitting
program applicable to all uses and alterations of the coastal zone’s “critical areas”2 where OCRM
has direct permitting authority (S.C. Code Ann. § 48-39-130); and (2) a review and certification
program, applicable throughout all of the coastal zone, through which the Department is directed
to “[d]evelop a system whereby [OCRM] shall have the authority to review all state and federal
permit applications in the coastal zone, and to certify that these do not contravene the management
plan.” S.C. Code Ann. § 48-39-80(B)(11).
17. The CMP provides the following guidelines for evaluation of all projects in the
coastal zone:
(1) The extent to which the project will further the policies of the
South Carolina General Assembly which are mandated for
[OCRM] in implementation of its management program, these
being: (a) “to promote the economic and social improvement of
the citizens of this State . . . with due consideration for the
environment and within the framework of a coastal planning
program that is designed to protect the sensitive and fragile
areas from inappropriate development . . . ; (b) to protect and,
where possible, to restore or enhance the resources of the State’s
coastal zone for this and succeeding generations.”
(2) The extent to which the project will have adverse impacts on the
“critical areas” (beaches, primary ocean-front sand dunes,
coastal waters, tidelands).
(3) The extent to which the project will protect, maintain or improve
water quality, particularly in coastal aquatic areas of special
resource value, for example, spawning areas or productive
oyster beds.
...
(7) The possible long-range, cumulative effects of the project, when
reviewed in the context of other possible development and the
general character of the area.
(8) The extent and significance of negative impacts on Geographic
2
“Critical area” includes coastal waters, tidelands, beaches, and the beach/dune system. S.C. Code Ann. §
48-39-10(J).
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Areas of Particular Concern (GAPCs).
(9) The extent and significance of impact on the following aspects
of quality and quantity of these valuable coastal resources: (i)
unique natural areas – destruction of endangered wildlife or
vegetation or of significant marine species . . . , degradation
of existing water quality standards . . . . [and] (ii) public
recreational lands – . . . degradation of environmental quality in
these areas[.]
CMP III-14 (internal citations omitted, emphases added).
18. The CMP contemplates added layers of protection and review for projects located
in proximity to Geographic Areas of Particular Concern3 (“GAPCs”) for two reasons: (1) barrier
islands are designated Areas of Special Resource Significance4 (CMP III-7); and (2) wildlife
preserves, as “irreplaceable resources,” are considered to be GAPCs. See CMP IV-5.
19. Further, when “a project overlaps with, is adjacent to, or significantly affects a
GAPC, [OCRM] will carefully evaluate the project based on the criteria listed as the priority of
uses which specifically address each type of GAPC. A project would be prohibited if it would
permanently disrupt the uses of priority for the designated area. A project would be strongly
discouraged or the permit conditioned if the project would interrupt, disturb, or otherwise
significantly impact the priority uses of the designated area.” CMP IV-2. Further still, the CMP
provides that the “goals of the South Carolina coastal zone management program for preservation
and development of GAPCs are: To give the highest priority to the identified primary value of a
GAPC when considering the preservation or development to that area.” CMP IV-3.
20. The CMP document makes specific findings regarding septic systems:
“[i]ndividual systems such as wells and septic tanks are adequate where development is limited,
3
GAPCs are lands that provide unique importance as natural, aesthetic, recreational, scientific, or economic
resources in the coastal zone. See CMP IV-3.
4
Areas of Special Resource Significance are those areas that have been identified through resource and
inventory efforts as being unique and either environmentally fragile or economically significant to the
coastal area and the State. See CMP III-69.
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but can have major environmental impacts in densely populated areas. For example, a proliferation
of wells in some areas can seriously draw-down or drain the aquifer, reducing the groundwater
resources, and possibly resulting in saltwater intrusion.” CMP III-60. The document further finds:
“the major negative impact associated with sewage treatment systems is potential water quality
degradation from effluent discharge . . . . Septic tanks are only effective in treating sewage in areas
where soils are suitable for proper drainage, where they are spaced adequately and where
groundwater and surface water are sufficient distance away.” Id.
21. DHEC is charged with regulating septic tank permits throughout the state, and thus
septic tank permits are state permits.
22. Despite the findings discussed in the preceding paragraphs, and despite the General
Assembly’s clear mandate that DHEC “review all state and federal permit applications in the
coastal zone, and to certify that these do not contravene the [CMP]” (S.C. Code Ann. § 48-39-
80(B)(11) (emphasis added)), DHEC has entirely failed to undertake this review for typical
residential septic permits in low-lying and dynamic coastal areas. Consistency review is mandated
by statute and is intended to give weight to the unique value of natural resources on the coast, as
well as the unique natural forces at play on the coast. See S.C. Code Ann. § 48-39-80. This failure
violates the plain language of the statute.
23. The CMP contains a provision that “DHEC retains regulatory authority over septic
tanks with flow rate of 1500 gallons per day or greater (Section 44-1-40, S.C. Code of Laws).”
CMP III-62; see also CMP V-5. However, nothing in the statute authorizes such a limitation on
DHEC’s certification review. Nor can the CMP override the plain language of the statute. See,
e.g., Milliken v. S.C. Dep’t of Labor, 275 S.C. 264, 269 S.E.2d 765 (1980). “Although a regulation
has the force of law, it must fall when it alters or adds to a statute.” S.C. Coastal Conserv. League
v. S.C. Dep’t Health & Envtl. Control, 390 S.C. 418, 429, 702 S.E.2d 246, 252 (2010).
8
FACTUAL BACKGROUND
Septic System Risks and Harms
24. It is well-documented that septic systems can and do impact local drinking water
wells, groundwater, surface water bodies, and coastal waters, especially when installed in sensitive
environmental areas, at sites with inappropriate soils or high groundwater tables, when sited in
high densities, and when sited on small lots with small drainfields.
25. Septic systems can be a significant source of environmental pollution, particularly
in rural areas. According to Defendant’s own Nonpoint Source Management Plan, nonpoint
sources of pollution, such as septic systems, are “continuously recognized as the nation’s largest
cause of surface water quality impairments.”5
26. The risks inherent to malfunctioning septic systems abound. According to the
Environmental Protection Agency (“EPA”), the “most serious documented problems [with septic
systems] involve contamination of surface waters and ground water with disease-causing
pathogens [bacteria and viruses] and nitrates.”6 Even if a septic system is functioning properly,
soil filtration alone cannot remove all contaminants (e.g., medicines, cleaning products, and other
harmful chemicals) and can discharge wastewater with pollutant concentrations exceeding
established water quality standards. In coastal regions, contamination of shellfish beds and
beaches by pathogens is a concern, as coastal waters are more sensitive to nitrogen contamination
from failing septic systems. “Other problems [with septic systems] include excessive nitrogen
discharges to sensitive coastal waters and phosphorous pollution of inland surface waters, which
5
S.C. Dep’t Health & Envtl. Control, SOUTH CAROLINA NONPOINT SOURCE MANAGEMENT PLAN 2020-
2024, (2019), available at
https://dc.statelibrary.sc.gov/bitstream/handle/10827/32190/DHEC_Nonpoint_Source_Management_Plan
_2020-2024_2019.pdf (last visited Oct. 28, 2022).
6
U.S. Envtl. Protection Agency, Septic System Impacts on Water Sources, available at
https://www.epa.gov/septic/septic-system-impacts-water-sources (last visited Oct. 28, 2022).
9
increases algal growth and lowers dissolved oxygen levels” causing large-scale kills of fish and
other aquatic organisms and creating regional “dead zones.”7
27. These risks are compounded for ill-placed septic installations within the coastal
zone. Sandy soils commonly found in coastal areas drain rapidly, meaning that pollutants are able
to reach groundwater before they are absorbed;8 likewise, waterlogged soils allow untreated waste
to flow laterally to ground and surface waters.9 Because effective wastewater treatment from
septic is dependent upon adequate depths of unsaturated soil beneath the drainfield, groundwater
tables characteristic of low-lying coastal areas are often too shallow to support proper waste
treatment.10 Precipitation from seasonal variances, annual rainfall, storm events, and sea level rise
raise water tables even higher, increasing the risk that poorly treated sewage will pollute nearby
waterbodies.
28. Plaintiff Waterkeeper’s testing data shows that high levels of bacteria often make
Charleston County waterways like Shem Creek, James Island Creek, and Filbin Creek unsafe for
recreational activity and/or shellfish harvesting for human consumption due to high levels of fecal
bacteria that indicate the presence of pathogens like tuberculosis, staph, cholera, and e. coli.
29. Septic systems placed in proximity to coastal waters have been identified as a
source of the above-referenced bacteria and pathogens in coastal waterways in numerous scientific
7
Id.
8
For example, within the James Island Creek Watershed, approximately 72.2% of the soil is considered to
have moderate to severe limitations for septic system drainfields due to high water tables and percolation
rates. Terracon, et al., WATERSHED MGMT. PLAN – JAMES ISLAND CREEK (May 25, 2021), available at
https://www.jamesislandsc.us/Data/Sites/1/media/pdf-files/james-island-creek---watershed-management-
plan-final.pdf (last visited Nov. 1, 2022) (citing USDA, Soil Survey- Charleston County, South Carolina
(1971)).
9
See, e.g., Michael A. Mallin, Septic Systems in the Coastal Environment: Multiple Water Quality
Problems in Many Areas, MONITORING WATER QUALITY (2013), available at
https://uncw.edu/cms/aelab/reports%20and%20publications/2013/mallin%20chapter%204%20septic%20
system%20problems.pdf (last visited Oct. 28, 2022).
10
Id. see also Miami-Dade Cnty. Dep’t of Regulatory & Econ. Res., et al., Septic Systems Vulnerable to
Sea Level Rise (2018), available at https://www.miamidade.gov/green/library/vulnerability-septic-systems-
sea-level-rise.pdf (last visited Oct. 28, 2022).
10
studies. For example, a study of Cape Hatteras National Seashore, a large public nature park in
North Carolina, found fecal concentrations in water samples were “significantly correlated” to
nearby community water usage, “indicating that increased septic tank usage led to increased
pollutant concentrations in area waterways.”11 In Charleston, a recent study of the routinely-
impaired waters of the James Island Creek Watershed examined the correlation between two
clusters of septic systems—an estimated 181 densely-placed septic tanks near the Simpson Creek
tributary, and another cluster of approximately 27 septic tanks adjacent to James Island Creek—
and water quality data from two sampling locations, collected by Plaintiff Waterkeeper over the
course of eight years (2013-2020).12 That study and associated Watershed Management Plan
concluded that septic systems had a high likelihood of being a major source of Enterococci13 in
the waters of James Island Creek.
30. The exact number of failing septic systems in South Carolina is unknown because,
after installation, South Carolina law does not require property owners to have existing systems
inspected or maintained. However, the EPA estimates that as many as twenty percent of septic
tanks are likely malfunctioning to some degree;14 according to DHEC, ten to thirty percent of
septic systems fail to work properly in an average year.15
31. Currently, OCRM’s coastal expertise and knowledge is completely excluded from
11
Michael A. Mallin & Matthew R. McIver, Pollutant impacts to Cape Hatteras National Seashore from
urban runoff and septic leachate, Marine Pollution Bulletin 64, 1356-1366 (2012).
12
Terracon, et al., WATERSHED MGMT. PLAN – JAMES ISLAND CREEK at 25-26 (May 25, 2021), available
at https://www.jamesislandsc.us/Data/Sites/1/media/pdf-files/james-island-creek---watershed-
management-plan-final.pdf (last visited Nov. 1, 2022).
13
Enterococci are bacteria that indicate the presence of fecal matter in water.
14
U.S. Envtl. Protection Agency, Stormwater Best Management Practice: Preventing Stormwater
Contamination from Septic Failure (2021), available at
https://www.epa.gov/system/files/documents/2021-11/bmp-preventing-stormwater-contamination-from-
septic-system-failure.pdf (last visited Oct. 28, 2022).
15
S.C. Dep’t Health & Envtl. Control, SOUTH CAROLINA NONPOINT SOURCE MANAGEMENT PLAN 2020-
2024, (2019), available at
https://dc.statelibrary.sc.gov/bitstream/handle/10827/32190/DHEC_Nonpoint_Source_Management_Plan
_2020-2024_2019.pdf (last visited Oct. 28, 2022).
11
septic tank application review and permit issuance, as permitting is delegated to a completely
separate agency division (On-Site Waste Water, or “OSWW,” a program under the umbrella of
the Bureau of Environmental Health Services, or “BEHM”). This, compounded by the
Department’s failure to undertake Coastal Zone Consistency review and its related failure to
consider the appropriateness and the impacts of coastal forces and geologic conditions on
individual septic systems in the coastal zone, is arbitrary, capricious, and in error.
Bulls Bay Watershed &

Cape Romain National Wildlife Refuge
32. Cape Romain National Wildlife Refuge (“Cape Romain” or “the Refuge”) is a large
wildlife preserve located in Charleston County and managed by the U.S. Fish and Wildlife Service
(“FWS”). The Refuge extends for twenty-two miles along the coast and encompasses 66,306 acres
of barrier islands and salt marsh, with elevations ranging from zero to four feet above sea level.
Of the Refuge’s 63,300 acres, 29,000 acres have been designated as a Class 1 Wilderness Area16
since 1975.
33. The Refuge is designated critical habitat for the federally listed Piping plover and
its beaches are the site of the largest nesting population of the threatened Loggerhead sea turtle
outside the state of Florida.17
34. Cape Romain is almost entirely surrounded by water: its borders are formed by the
Intracoastal Waterway (“ICW”) to the west/north, Price Inlet and tributary to the south, Cape
Romain Harbor and its tributaries to the north, and the Atlantic Ocean to the east. According to
FWS, the Refuge is “seventy-five percent estuary with the seemingly endless emergent salt
marshes that are dominated by smooth cordgrass and interwoven with winding tidal creeks,
16
Class 1 Wilderness Areas are designated pursuant to the Clean Air Act, 42 U.S.C. 7401, et seq., and
impose heightened air quality and visibility protections for national wilderness areas larger than 5,000 acres.
17
U.S. Fish & Wildlife Serv., Cape Romain National Wildlife Refuge, https://www.fws.gov/refuge/cape-
romain (last visited Oct. 28, 2022).
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shallow bays, shell rake islands and salt flats. These estuarine wetlands are significant nursery
habitats. The incoming tide carries juvenile fish, crabs, shrimp and other invertebrates. Combining
the ocean’s nourishment with the nutrient-laden fresh waters of small rivers makes the estuary one
of the most productive environments on earth.”
35. Cape Romain lies within the Bulls Bay Watershed of the Santee River Basin. This
watershed, specifically Bulls Bay, has a documented history of fecal coliform bacteria impairment
due in part to malfunctioning septic systems. In 2002, DHEC added Shellfish Harvesting Area 7
to the Clean Water Act - Section 303(d) list of impaired waters for fecal coliform bacteria. To
restore the water quality of this area, local and state governments began to implement best
management practices and septic repairs. As part of the seven-year, nearly one-million-dollar
project, sixty-two septic systems were completely replaced. By 2014, Shellfish Harvesting Area
7 was delisted and reopened for shellfish harvesting.
36. Today, the waters in and around the Refuge have been designated as Outstanding
Resource Waters (“ORW”)—the highest water quality designation in the state—defined as waters
which constitute an outstanding recreational or ecological resource. S.C. Reg. 61-68. Specifically,
Bulls Bay, Cape Romain Harbor, Price Inlet, and their tributaries are all designated ORW. S.C.
Reg. 61-69. The entirety of Sewee Bay is designated Shellfish Harvesting Waters (“SFH”), defined
as tidal waters protected for shellfish harvesting and suitable for recreation, crabbing, fishing, and
for the survival and propagation of a balanced indigenous aquatic community of marine fauna and
flora. S.C. Reg. 61-68 and 69.
37. Additionally, the Refuge qualifies as both a GAPC and an Area of Special Resource
Significance; therefore, under the CMP, permit applications for projects adjacent to or that will
significantly affect the Refuge are subject to the additional requirements discussed infra (¶¶ 17-
19).
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Proposed Developments in Awendaw
38. South Carolina’s coastal areas are experiencing increased development pressures,
particularly outside of areas with established utility services. In these areas, conventional septic
tank systems are often chosen for household wastewater treatment because of the lack of sewer
service, in addition to the low initial development costs and the ease of obtaining septic installation
permits.
39. Plaintiffs are informed and aware of at least two pending projects in Charleston
County that would utilize a significant number of individual septic tanks as part of high-density
residential development proposals within and adjacent to sensitive coastal areas. Both projects are
residential subdivisions within the Town of Awendaw, and both are situated in close proximity to
the Congressionally-authorized boundaries of the Cape Romain National Wildlife Refuge.
Further, both project sites and Cape Romain lie within the Bulls Bay Watershed of the Santee
River Basin, indicating that waters, rainfall, snowmelt, sediments, and pollutants from inland
locations are eventually channeled to geographically grouped outflow points such as reservoirs,
bays, and the ocean, namely the waters in and around the Refuge.
40. Upon information and belief, White Family Partnership, LP, (“WFP”) is a limited
partnership organization doing business in Charleston County. WFP is the owner of four parcels
of land located in Awendaw, corresponding with TMS Numbers 644-00-00-023, 644-00-00-025,
644-00-00-026, and 644-00-00-030. Together, these parcels comprise 233.45 acres, and are
referred to collectively as “White Tract.”
41. The White Tract property is situated east of Highway 17 near the intersection of
Seewee Road and Bulls Island Road in Awendaw, South Carolina. See Exhibit A. Upon
information and belief, this property primarily consists of forested uplands and freshwater
wetlands, and is surrounded by public roadways and forested land, including forested land owned
14
by the federal government (Francis Marion National Forest). The easternmost boundary of the
property consists almost entirely of wetlands, and a portion of the easternmost tract extends to the
waters of the ICW and Sewee Bay, which are currently classified as SFH. The property lies within
one mile of Cape Romain National Wildlife Refuge and is part of the Bulls Bay Watershed.
42. Upon information and belief, on April 18, 2022, following a public hearing, the
Town’s Planning Commission voted to approve the White Tract subdivision preliminary plat,
green-lighting the development of 204 single-family homes at an overall gross density of one unit
per acre. The individual proposed lots range in size from 14,167 square feet (approximately 0.325
acres) to 40,705 square feet (approximately 0.934 acres). See Exhibits B and C.
43. Upon information and belief, all of the proposed lots within White Tract are to be
served by individual septic systems. See Exhibits B and C.
44. The Plaintiffs submitted a Freedom of Information Act (“FOIA”) request to DHEC
to determine whether any septic tank permit applications had been submitted for the White Tract
development. On October 11, 2022, DHEC notified Plaintiffs that no such applications have been
submitted to or received by the Department.
45. Upon information and belief, DHEC does not intend to issue public notices for any
septic tank permit applications for the White Tract.
46. Upon information and belief, DHEC does not intend to conduct a review of any
septic tank permits on the White Tract, or anywhere else in the coastal zone, for consistency with
the CMP.
47. Upon information and belief, Wapataw, LLC (“Wapataw”) is a limited liability
company and the owner of one parcel of land located on Doar Road in Awendaw, corresponding
with TMS Number 681-00-00-028. This parcel comprises 184 acres, and is commonly referred to
as the “Doar Tract.”
15
48. The Doar Tract is situated east of Highway 17 near the intersection of Seewee Road
and Doar Road in Awendaw, South Carolina. See Exhibit D. Upon information and belief, Doar
Tract is 46% wetland (approximately eighty-five acres of wetlands and ninety-nine acres of
highland). See Exhibit D at 2. Upon information and belief, this property lies within 1.5 miles of
the ICW and Cape Romain, and is part of the Bulls Bay Watershed.
49. On December 17, 2018, the Town’s Planning Commission approved a major
residential subdivision, also known as “Romain Bay Preserve,” on the Doar Tract. Wapataw’s
Planned Development (“PD”) document proposed two different design possibilities: (1) “Scenario
One” which called for 249 residential units (gross density of approximately 1.5 units per acre);
and (2) “Scenario Two” which called for 188 residential units (gross density of approximately 2.0
units per acre). Under either scenario, Wapataw’s PD contemplated “individual or central septic
systems for sanitary sewer, subject to DHEC approval for septic systems.” Exhibit D.
50. Upon information and belief, Wapataw submitted a subdivision application to the
Town, specifically regarding the first of several phases of the Romain Bay Preserve project (“Phase
One”). Phase One encompassed eighty-five new parcels, three roads, and associated water
infrastructure and service. Id.
51. On May 16, 2022, following a public hearing, the Town’s Planning Commission
approved the Romain Bay Preserve preliminary plat as to Phase One only. In its Memorandum on
Conditions for Approval, the Town provided that “all proposed lots will be served with onsite
septic systems.” See Exhibit E at 2, n.7.
52. Upon information and belief, Defendant issued eighty-five individual permits for
on-site wastewater systems to Romain Bay Preserve on or about August 4, 2022. DHEC did not
issue public notices for any of these septic tank applications, nor did they publicly notice the permit
decisions themselves. The Plaintiffs learned of these permits through a FOIA request, which was
16
submitted on September 12, 2022, and fulfilled on October 11, 2022, well past the fifteen-day
window for challenging such decisions.18
53. Upon information and belief, DHEC failed to review the septic tank permit
applications for consistency with the CMP.
PUBLIC NOTICE AND DUE PROCESS
54. Currently, the Department does not place applications for individual septic tanks
on public notice, nor does it publicly notice issued permits for the same.
55. The failure to provide public notice for applications or permits creates a system
whereby affected persons and the public at large are unable to engage in decision-making processes
that implicate their rights. In particular, those rights include recreational uses in and on public
trust resources, such as boating, swimming, fishing, and harvesting shellfish, in addition to impacts
on their health and well-being and their property values. In short, affected persons are kept
completely in the dark about the state’s permitting of septic systems in ecologically sensitive
coastal areas that have the potential to harm the quality of their communities and surrounding
environment.
56. Administrative agencies such as DHEC are required to meet minimum standards of
due process. Stono River Env't Prot. Ass'n v. S.C. Dep’t Health & Envtl. Control, 305 S.C. 90, 93-
94 (1991) (citing S.C. Const. Art. 1, § 3; Smith & Smith, Inc. v. S.C. Public Service Comm’n, 271
S.C. 405 (1978)). The South Carolina Constitution provides that “[n]o person shall be finally
bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights
except on due notice and an opportunity be heard . . . and he shall have in all such instances the
right to judicial review.” S.C. Const., Art. 1, § 22 (emphasis added); see also Kurschner v. City of
18
See S.C. Code Ann. § 44-1-60(E)(2) (“The staff decision becomes the final agency decision fifteen
calendar days after notice of the staff decision has been mailed to the applicant, unless a written request for
final review . . . is filed with the department by the applicant, permittee, licensee, or affected person.).
17
Camden Plan. Comm’n, 376 S.C. 165, 171 (2008) (“Procedural due process imposes constraints
on governmental decisions which deprive individuals of liberty or property interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment of the United States
Constitution.”). “Due process does not require a trial-type hearing in every conceivable case of
government impairment of a private interest. Rather, due process is flexible and calls for such
procedural protections as the particular situation demands.” Kurschner, 376 S.C. at 171-72
(internal citations omitted); see also Stono River, supra (citing Morrissey v. Brewer, 408 U.S. 471,
481 (1972)).
57. The General Assembly codified the same when it enacted S.C. Code Section 44-1-
60(B), which provides: “To the maximum extent possible, the department shall use a uniform
system of public notice of permit applications, opportunity for public comment and public
hearings.” The purpose of this act “is intended to provide a uniform procedure for contested cases
and appeals from administrative agencies.” S.C. Coastal Conserv. League v. S.C. Dep’t Health &
Envtl. Control, 390 S.C. 418, 429 (2010) (quoting Act No. 387 § 53).
58. To prevail on a claim of denial of due process in an administrative proceeding, there
must be a showing of substantial prejudice. See, e.g., Palmetto Alliance, Inc. v. S.C. Public Serv.
Comm’n, 282 S.C. 430, 435 (1984). Here, lack of public notice substantially prejudices Plaintiffs
in that they receive no notice of an agency decision, and thereby lack the means to timely challenge
that decision.
59. With a fifteen-day clock to challenge the issuance of the permit, affected persons
must be aware that an application has been submitted and that DHEC has made a permitting
decision. Currently, the only option the public has to obtain such information and challenge it is
to request septic information under FOIA, placing an impossible burden on affected persons to
time a FOIA request concurrently with a septic permit application and/or permit issuance. If a
18
FOIA request is made too soon, no information will be available for the Department to disclose.
If a FOIA request is made too late, the fifteen-day clock will likely have run by the time the request
is fulfilled, precluding an affected person from challenging DHEC staff’s decision to issue said
permits. Even assuming a FOIA request is perfectly timed, the Department has forty days to
respond to a FOIA request, again presenting a substantial likelihood that a permit will have been
issued and the fifteen-day clock expired.
60. Because DHEC does not provide any public notice of septic tank permit
applications or its decisions to grant such permits, the public and any affected persons are
foreclosed from a meaningful opportunity to be heard and subsequent judicial review.
61. Plaintiffs are aware of a recent instance in which the failure to publicly notice
permit applications and agency decisions has caused prejudicial effects. In particular, the
Gullah/Geechee Fishing Association (“the Association”) has been objecting to a luxury resort
proposed for Bay Point Island in Port Royal Sound in Beaufort County. In 2020, Governor Henry
McMaster, Senator George E. “Chip” Campsen, and Representative Shannon Erickson joined in
support of the Association and submitted letters to the Beaufort County Zoning Board of Appeals
advocating for the protection of this cultural and natural resource and against the proposed
development. Yet, despite monitoring DHEC activities and submitting a FOIA request regarding
any septic tank permit applications, the Association did not learn of DHEC’s decision to issue a
septic tank until after the fifteen-day appeal window had passed. Even though the Association
appealed within fifteen days of learning of the permit issuance, which occurred without a coastal
zone consistency certification, the Administrative Law Court dismissed their appeal as untimely.
Gullah/Geechee Fishing Assoc. v. S.C. Dep’t Health & Envtl. Control, 22-ALJ-07-0008-CC,
Order Granting Resp’t Bay Point’s Mot. to Dismiss (July 15, 2022). See Exhibit F.
19
62. The South Carolina Constitution, as well as multiple statutes promulgated by the
General Assembly, envision a system of government whereby administrative agencies provide
public notice of decisions and allow public input to promote transparency and public participation
in the decision-making process. When legislative intent is subverted by an agency’s failure to
follow plainly stated processes and procedures, citizens are denied the rights conferred on them by
the legislature and the Constitution. Such a result should not be permitted to stand, and the affected
members of the public (i.e., Plaintiffs) should not be further prejudiced as a result.
FOR A FIRST CAUSE OF ACTION

(Declaratory Judgment – Coastal Zone Consistency Review)
63. Plaintiffs re-allege and incorporate the allegations of the preceding paragraphs as if
fully contained herein.
64. Section 48-39-80(B)(11) of the S.C. Code requires the Defendant to “review all
state and federal permit applications in the coastal zone, and to certify that these do not contravene
the [CMP]” (emphasis added).
65. DHEC is the state agency charged with reviewing septic tank permit applications,
and septic tank permits are state permits.
66. DHEC does not and has never reviewed septic tank permit applications for
consistency with the Coastal Management Program.
67. DHEC has violated S.C. Code Section 48-39-80(B)(11) by failing to review septic
tank permit applications for consistency with the Coastal Management Program.
68. DHEC’s failure to comply with the Coastal Tidelands and Wetlands Act also
indicates a failure to comply with the federal Coastal Zone Management Act.
69. Plaintiffs seek a declaration from this Court that DHEC-OCRM is required to
review all septic system applications in the coastal zone for consistency with the Coastal
Management Program pursuant to S.C. Code Section 48-39-80(B)(11).

20
70. A concrete issue exists in this case, Plaintiffs have asserted legal rights, and DHEC
is denying an affirmative legal duty; as such, a justiciable controversy exists in this matter, and
Plaintiffs are entitled to a declaratory judgment as a matter of law.
FOR A SECOND CAUSE OF ACTION

(Declaratory Judgment – Public Notice)
72. The Due Process Clause of the S.C. Constitution provides that “[n]o person shall
be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting
private rights except on due notice and an opportunity be heard.”
73. DHEC does not provide notice of any kind regarding septic tank permit
applications, and as a result DHEC deprives the public of an opportunity to be heard and for
judicial review.
74. The Plaintiffs are substantially prejudiced because they receive no notice, have no
opportunity to be heard and have no ability to obtain judicial review.
75. Plaintiffs seek a declaration from this Court that DHEC must provide for public
notice of all onsite wastewater system applications, regardless of volume, so that members of the
public and affected parties have notice and an opportunity to be heard.
76. Plaintiffs re-assert that a concrete issue exists in this case, Plaintiffs have asserted
legal rights, and DHEC is denying an affirmative legal duty; as such, a justiciable controversy
exists in this matter, and Plaintiffs are entitled to a declaratory judgment as a matter of law.
FOR A THIRD CAUSE OF ACTION

(Temporary and Permanent Injunction)
21
78. Plaintiffs ask the Court to enjoin the Defendant from issuing any septic tank permits
in the coastal zone unless and until the agency has certified that such permit is consistent with the
Coastal Management Program.
79. A temporary injunction is an appropriate remedy at law if the plaintiff shows the
following: (1) it would suffer irreparable harm if the injunction is not granted; (2) it will likely
succeed on the merits of the litigation; and (3) there is an inadequate remedy at law. See, e.g.,
Scratch Golf Co. v. Dunes West Residential Golf Props. Inc., 361 S.C. 117, 122 (2004).
80. Similarly, a permanent injunction is an appropriate remedy at law if the plaintiff
will suffer irreparable harm without such relief, the plaintiff lacks an adequate remedy at law for
the defendant’s wrongdoing, and equity favors the granting of such relief.
81. Here, Plaintiffs will suffer irreparable harm if an injunction is not granted.
Continued permitting of septic systems in the coastal zone without regard for the special
considerations outlined in the CMP and without review by the special expertise of OCRM staff
will likely allow hundreds, if not thousands, of septic units to be installed in sensitive or
inappropriate coastal areas, exposing Plaintiffs, the public at large, and the natural environment to
unnecessary and heightened risks of water quality degradation and hazards to human health.
82. Plaintiffs are likely to succeed on the merits of this action based on the plain
language of the Coastal Tidelands and Wetlands Act, which requires that all state and federal
permits to be reviewed for consistency with the CMP.
83. In the absence of an injunction, there is no adequate remedy at law available to
Plaintiffs. Challenging onsite wastewater permits individually is effectively impossible given that
Defendant refuses to provide notice to the public of septic system applications or permits.
84. Until such time as the Court permanently decides the issues set forth herein, no
material harm will result to Defendant if it is temporarily enjoined from approving septic tank
22
permits without conducting coastal zone consistency certification review.
85. Enjoining the Defendant from approving septic tank permits in sensitive coastal
areas without regard to the special requirements mandated by the General Assemby would best
serve the public interest.
86. As a result of the foregoing, Plaintiffs are entitled to the award of a temporary and
permanent injunction for the relief sought herein.
WHEREFORE, having fully set forth the allegations against Defendant, Plaintiffs seek
an Order of this Court granting the following relief:
(1) Declaring that the Department of Health and Environmental Control must review all
onsite wastewater system applications in the coastal zone for consistency with the
Coastal Management Program;
(2) Declaring that the Department of Health and Environmental Control must provide for
public notice of septic tank permit applications and agency decisions on those permit
applications;
(3) Enjoining the Department of Health and Environmental Control from issuing any septic
tank permits within the eight coastal counties without undertaking the requisite review
for consistency with the Coastal Management Program; and
(4) Granting Plaintiffs such other and further relief as this Court deems just and proper.
Signature page to follow.
23
Respectfully submitted,
s/ Emily M. Nellermoe
Emily M. Nellermoe (SC Bar No. 102330)
Leslie Lenhardt (SC Bar No. 15858)
S.C. ENVIRONMENTAL LAW PROJECT
510 Live Oak Drive
Mt. Pleasant, SC 29464
Tel: (843) 527-0078
[email protected]
[email protected]
Counsel for Plaintiffs
November 10, 2022

Charleston, South Carolina
24

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ELECTRONICALLY FILED - 2022 Nov 10 10:23 AM - CHARLESTON - COMMON PLEAS - CASE#2022CP1005192

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

South Carolina Coastal Conservation )

TO: THE ABOVE-NAMED DEFENDANT

S.C. ENVIRONMENTAL LAW PROJECT

Counsel for Plaintiffs

South Carolina Coastal Conservation )

Plaintiffs South Carolina Coastal Conservation League and Charleston Waterkeeper, by

submit the following:

NATURE OF THE CASE

1. This is a civil suit brought against Defendant Department of Health and

Environmental Control (“DHEC” or “the Department”) pursuant to the Uniform Declaratory

publicly notice septic applications and permits.

untreated sewage from malfunctioning, ill-maintained, and/or ill-placed septic systems.

with the State’s Coastal Management Program, is located in Charleston County.

6. Plaintiff South Carolina Coastal Conservation League (“the League”) is a non-

7. Plaintiff Charleston Waterkeeper (“Waterkeeper”) is a non-profit 501(c)(3)

organization headquartered in Charleston, South Carolina, founded to protect and restore

Charleston’s waterways. Waterkeeper has a strong interest in advocating for environmental

8. Plaintiff organizations and their members have significant, particularized, and

Charleston Waterkeeper v. Frontier Logistics, 488 F.Supp.3d 240 (D.S.C. 2020).

their ability to make such uses.

geography, or water quality classifications and designations, especially in high densities,

and will continue to be lessened.

members seek to remedy these agency omissions with this action.

permitting program. S.C. Reg. 61-56.

is “ecologically fragile and consequently extremely vulnerable to destruction by man’s alterations”

including the implementation and enforcement of a comprehensive coastal management program.

plan.” S.C. Code Ann. § 48-39-80(B)(11).

CMP III-14 (internal citations omitted, emphases added).

preserves, as “irreplaceable resources,” are considered to be GAPCs. See CMP IV-5.

groundwater and surface water are sufficient distance away.” Id.

septic tank permits are state permits.

violates the plain language of the statute.

Septic System Risks and Harms

25. Septic systems can be a significant source of environmental pollution, particularly

cause of surface water quality impairments.”5

other aquatic organisms and creating regional “dead zones.”7

pollutant concentrations in area waterways.”11 In Charleston, a recent study of the routinely-

the waters of James Island Creek.

septic systems fail to work properly in an average year.15

the Bureau of Environmental Health Services, or “BEHM”). This, compounded by the

Bulls Bay Watershed &

outside the state of Florida.17

of the most productive environments on earth.”

7 was delisted and reopened for shellfish harvesting.

flora. S.C. Reg. 61-68 and 69.

the Congressionally-authorized boundaries of the Cape Romain National Wildlife Refuge.

of land located in Awendaw, corresponding with TMS Numbers 644-00-00-023, 644-00-00-025,

referred to collectively as “White Tract.”

served by individual septic systems. See Exhibits B and C.

submitted to or received by the Department.

septic tank permit applications for the White Tract.

as the “Doar Tract.”

infrastructure and service. Id.

septic systems.” See Exhibit E at 2, n.7.

window for challenging such decisions.18

applications for consistency with the CMP.

PUBLIC NOTICE AND DUE PROCESS