By Matt Tomsic
Published June 5, 2012
State Supreme Court justices peppered attorneys today with questions about the authority of the S.C. Department of Health and Environmental Control to issue permits for a river deepening project without consulting the Savannah River Maritime Commission.
S.C. Supreme Court Chief Justice Jean Toal
The justices questioned each attorney minutes into their arguments, and an attorney for DHEC received several questions about his arguments.
Chief Justice Jean Toal questioned DHEC attorney John Harleston about the 2007 law that created the Savannah River Maritime Commission. Toal noted the law gave the commission power to represent the state in negotiations over the Savannah River, but DHEC didn’t allow the commission to participate in the negotiations that led to the agreement announced last November, when DHEC granted Georgia officials a permit for the river deepening project.
“This thing here says the Savannah River Maritime Commission is established to represent this state in all matters regarding that,” Toal said.
But the statute, Harleston responded, does not give the commission authority for permitting.
Negotiating and entering into agreements is another issue besides permitting, Toal said.
“And there you jumped the (trestles) at that,” she said. “You decided to turn it into a negotiating deal.”
Toal then questioned Harleston about DHEC’s review process and whether the decision withstood the process required by state agencies. The process requires a state agency to find facts and make conclusions based on law.
“You decided to scrap that process and went into a negotiating process,” Toal said.
Harleston disagreed, arguing DHEC had already reviewed the project and agency staff met with the Georgia Ports Authority and Army Corps of Engineers to discuss the reasons staff denied the initial permit earlier last year. He also argued state law did not require the Savannah River Maritime Commission to be part of those discussions.
Toal then asked Harleston about DHEC’s authority to negotiate the agreement, and Harleston argued that DHEC has the power to issue and decide permits.
State law gives the maritime commission authority to represent the state in negotiations, but “represent” does not give the commission authority for permitting decisions, Harleston said.
He finished his argument with a request for the court to rule that DHEC did not act outside of its authority in November when it issued the permit, also called a 401 water quality certification.
“The way to save this decision is to avoid a ruling that deprives the department retroactively of its authority to decide the 401 certification,” he said.
Frank Holleman, an attorney representing the Southern Environmental Law Center, argued that DHEC did violate South Carolina law by issuing the permit, which threatens the Savannah River.
“The legal violations are fairly simple and straightforward,” Holleman said.
Holleman asked the court to give three rulings: DHEC acted, it acted illegally with its November board decision and, in general, DHEC acted unlawfully when it issued a Construction and Navigable Waters permit as part of its 401 certification.
Matt Bogan, an attorney for the Savannah River Maritime Commission, followed Holleman and asked the court to affirm the 2007 state law establishing the Savannah River Maritime Commission and to rule that the Navigable Waters Permit is part of the 401 Water Quality Certification.
The groups will now wait for the court to issue its ruling, and the justices do not have a deadline to rule on the matter. Meanwhile, another case challenging the permit is before an administrative law court, which will meet later this month to hear arguments about the discovery process.
Reach Matt Tomsic at 843-849-3144.