By Matt Tomsic
mtomsic@scbzinews.com
Published May 17, 2012

A 2007 law did not transfer powers from the S.C. Department of Health and Environmental Control to the Savannah River Maritime Commission, and DHEC acted within its powers last year, when it issued a permit for a Savannah River deepening project, according to a court filing.

Related coverage DHEC welcomes state Supreme Court action in permit case Environmental groups petition top court over DHEC permit decision

In early April, the state Supreme Court agreed to hear a case brought by the Savannah Riverkeeper, the Coastal Conservation League, the S.C. Wildlife Federation, the Conservation Voters of South Carolina and the Savannah River Maritime Commission. Lawyers from the Southern Environmental Law Center are representing the group, which is arguing DHEC acted outside of its authority last year when it issued permits for a Savannah River deepening project.

DHEC filed its response to the lawsuit Wednesday.

In the filing, DHEC argues the 2007 law creating the Savannah River Maritime Commission did not grant the commission regulatory or permitting powers and did not take those powers from DHEC.

The 2007 law was created for another port project — the Jasper Ocean Terminal — on the Savannah River and does not mention the Savannah Harbor Expansion Project. If state legislators wanted to transfer permitting power from DHEC to the maritime commission, they would have used more explicit language, attorneys argue.

“It would be most peculiar for the General Assembly to choose general, non-specific language to make such a specific grant and transfer of powers to the commission … particularly in reference to a project that is nowhere even mentioned in the act,” according to the filing.

The maritime commission has not tried to implement a permitting program until early May, DHEC argues, when it approved a proposed decision to limit the Savannah Harbor Expansion Project to a depth of 45 feet, two feet shorter than an Army Corps of Engineers Savannah District recommendation.

“Since 2007, (the Savannah River Maritime Commission) never made any effort to exercise authority over navigable waters construction permits … until last week when it issued a proposed decision on a navigable waters permit for (the Savannah Harbor Expansion Project),” according to the filing.

The state agency also argues it had authority to negotiate with Georgia for the water quality permit, and those negotiations were not essential to DHEC’s decision to grant the permit in November.

“If the negotiation itself was invalid, however, the negotiations would not invalidate the resulting agency decision,” attorneys wrote. “DHEC could therefore have issued the certification unilaterally, on the same conditions, without their consent.”

The filing is the latest legal action in a case that began after Nov. 15, 2011, when DHEC issued a water quality permit to Georgia for the harbor expansion project, which will deepen the Savannah River to 47 feet to allow better access to Georgia Ports Authority terminals.

Before granting the permit, DHEC and Georgia officials reached a deal: Georgia agreed to maintain more than 600 acres of marsh in South Carolina and to pay for maintaining dissolved oxygen levels in the Savannah River for 50 years.