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Environmental Law Program

Fall 2006 Student Environmental Law Scholarship

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Fall 2006 Environmental Law of South Carolina Papers

Paul W. Bradley, Development of Small Marsh Islands: A Comparative Analysis of Georgia's and South Carolina's Laws and Regulations
Small marsh islands are unique ecosystems that provide habitats and recreational enjoyment for many different species of plants and animals as well as mankind. This paper compares the statutes and regulations of Georgia and South Carolina that govern the access and development of marsh islands as well as the importance of protecting them. Both states have adopted regulations and statutes to help balance the importance of protecting marsh islands and the demand to develop them.
Anthony Charles, The Opportunities Presented by Organic Farming in South Carolina and How They Outweigh the Challenges
This paper provides readers with an in-depth analysis of the organic movement and current shift in ideology towards promoting local and sustainable agriculture. It looks at some of the history of legislation that the current organic standards have grown out of as well as the current conflict between organic advocates and the pesticide industry. The paper suggests that because of our diverse landscape, ecosystem and agricultural heritage, coupled with our resilient and talented citizens, South Carolina has the opportunity to become an innovative leader in the realm of agriculture. Becoming a state that strongly focuses on organic agriculture will aid in decreasing the stress and strain on our soil and natural resources while promoting economic growth and public health. The challenges to organic farming in South Carolina, most of which are bureaucratic in nature, are being addressed by state leaders and the Carolina Farm Stewardship Association (CFSA). The CFSA is actively implementing plans to solve these problems through community involvement, education, outreach and political action. South Carolina stands to benefit from the emphasis organic agriculture places on the environment, personal health, as well as economics.
Valerie Cochran, The Ramsar Convention on Wetlands of International Importance: Putting the Convention to Work in South Carolina
This paper details the creation of the Convention on Wetlands on Wetlands of International Importance from its inception to its signing in Ramsar, Iran in 1971. Numerous aspects of the treaty in its present form are discussed and their importance investigated. It then moves into a detailed description of the process of preparing a nomination form in the United States based on first-hand experience. Finally, there is an identification and assessment of several wetland sites in South Carolina that are possible Ramsar nomination sites. Each site is detailed and its strengths and weaknesses with respect to the Ramsar nomination criteria are evaluated.
Brandon Cooper, Total Maximum Daily Loads v. Nonpoint Source Pollution & The South Carolina Administrative Procedures Act
A Total Maximum Daily Load (TMDL) program has recently been enacted in South Carolina pursuant to the Clean Water Act. The program addresses waters which fail to meet state standards for water quality. This paper discusses two significant challenges to the program's success. First, the program seeks to reduce nonpoint source pollution, a task which has traditionally proved quite difficult. TMDLs provide no new enforceable means to regulate such pollution, and thus their ability to succeed in reducing nonpoint source pollution is dubious. Second, TMDLs for waters impaired by point sources and TMDLs used as a basis for conditions in MS4 permits are probably invalid. All South Carolina agencies must promulgate legislative regulations according to the South Carolina Administrative Procedures Act. TMDLs were not promulgated as regulations under the South Carolina Administrative Procedures Act, and when such are used to modify NPDES permits, then they have a direct effect on the rights of individuals which is the hallmark of a legislative regulation. Therefore, such might be deemed invalid and cannot be used to modify NPDES permits.
Christine Fritz, South Carolina and the Marine Mammal Park Industry
This paper examines the conflicting interest of state and federal law in protecting marine mammals in the marine mammal park industry. Under South Carolina law, it is illegal to exhibit marine mammals. Additionally, South Carolina law makes the capture, feeding, and harassment of dolphins and whales illegal. However, federal laws also deal with similar topics under both the Marine Mammal Protection Act, and the Animal Welfare Act. This paper addresses whether the federal laws preempt the state laws. Under the 1994 amended Marine Mammal Protection Act, the meaning of the word "takings" changed, resulting in a change in analysis of the issue, as outlined in the paper's examination of opinions sent by the National Oceanic and Atmospheric Association (NOAA) to the South Carolina Department of Natural Resources. The author believes that both the Marine Mammal Protection Act and the Animal Welfare Act do not preempt and invalidate the South Carolina prohibiting the exhibit of marine mammals. However, the author believes the state law relating to the taking of marine mammals would be preempted by a court and found unconstitutional as a violation of the Marine Mammal Protection Act. Next the paper examines the problems presented by the federal regulations of marine mammals. Finally, the author concludes that the South Carolina laws protecting marine mammals are necessary to protect the animals from such low federal standards, and the laws do not violate the spirit and purpose of the Marine Mammal Protection Act and the Animal Welfare Act.
Catherine Harrison, Surface Water Withdrawal Permitting in South Carolina: A Look at S. 1159 and the Need for Reform
Water is a precious and finite resource. If South Carolina does not take positive steps toward protecting it, the state could face a major water crisis. As explored in this paper, South Carolina currently does not have a surface water withdrawal permitting system in place. This means that water users can take surface waters without regulation; all they must do is report to the state how much they take. A new bill before the South Carolina General Assembly, S. 1159, proposes that anyone withdrawing more than three million gallons of surface water per month must have a permit from DHEC. This bill came about as a result of a number of factors which were affecting the state of water in South Carolina, including droughts, population growth and development, and industrial growth. The bill outlines a number of factors including the impact of withdrawals on fish and wildlife, public health and welfare, and minimum instream flows that must be taken into account before a permit is issued. The paper discusses several positive impacts that surface water withdrawal legislation would have on the state. Not only would a permitting system protect the environment by maintaining adequate instream flows in the state's rivers and streams and ensuring there is a plentiful water supply, but it would also help the state in its dealings with its neighboring states. Both Georgia and North Carolina have had surface water withdrawal permitting systems in place for years, and officials have indicated that successful negotiations between these two states will not take place unless South Carolina has a comparable permitting system in place. Thus the paper concludes that a permitting system for surface water withdrawals would be beneficial to the state's water system and therefore, the General Assembly should pass S. 1159, the surface water withdrawal legislation.
Virginia Hayes, Real Property Transactions: How Much Investigation into Past Environmental Contamination is Necessary in Order to Protect the New Purchaser from Clean-Up Liability Under CERCLA?
This paper explores the different requirements under CERCLA to protect the potential purchaser from clean-up liability under CERCLA. The paper looks at the newly implemented 2006 requirements for "all appropriate inquiry" and suggests that the new standards are a far higher burden for the prospective purchaser to abide by. It is further suggested that even after the potential purchaser conducts "all appropriate inquiry" through a Phase I Environmental Site Assessment and turns up no evidence of hazardous environmental contamination, the "innocent purchaser" might still conduct a Phase II Environmental Site Assessment to have full disclosure into any contamination in the water or soil. Finally, the "innocent purchaser" may want to enter a Non-Responsible Party Voluntary Clean-up Contract with DHEC in order to receive the extra governmental assurance that the prospective purchaser has properly conducted "all appropriate inquiry" and will not be responsible for hazardous exposure to third parties.
Brian E. Johnson, Drilling for Natural Gas Off South Carolina's Coast: Legal and Policy Issues
For more than two decades, there has been a moratorium prohibiting offshore leasing for the purposes natural gas and oil exploration and drilling in the outer Continental Shelf, with limited exceptions. However, as discussed in this paper, both the United States House of Representatives and the Senate introduced legislation that would repeal the current moratoria to allow offshore drilling, including areas off the coast of South Carolina. The Senate passed the Gulf of Mexico Energy Security Act of 2006 which would expand current leasing only in the Gulf of Mexico, while the House settled on the Deep Ocean Energy Resources Act that would repeal the prohibition to allow for leasing and development off of all coastal states. This paper examines the current moratoria and the legislation introduced to alter the existing law. Next, this paper discusses the policy issues that must be considered when determining whether to explore off the South Carolina coast, including economic incentives, environmental concerns, and energy dependency. Further, it explores the legal issues that may arise from the proposed action. In conclusion, this paper finds that the potential environmental and economic consequences weigh against issuing natural gas leases off the coast of South Carolina.
Will Klauber, South Carolina Wetlands: A Brief History, Summary of Recent Change, and a Prognostication of what is to come
Wetlands are valuable resources which exist in many different shapes and sizes throughout South Carolina that are regulated through the 1972 Clean Water Act. In this document the author gives the reader an introduction to these jurisdictional wetlands. A major focus of recent changes in the way in which jurisdictional wetlands are perceived is on two recent Supreme Court Cases and their affects on the definition of federal jurisdictional wetlands. Also presented are responses to these recent cases by various government branches and agencies to address these recent decisions with regards to the preservation of Carolina Bays and other isolated wetlands throughout South Carolina. A short suggestion is proposed by which especially valuable isolated wetlands such as Carolina Bays may be argued to satisfy the definition of waters of the U.S. through their potential to generate interstate commerce. The author briefly addresses efforts being taken throughout the state to preserve wetlands for various different purposes from flood relief in Upstate South Carolina to environmentally conscious development in the rapidly growing Lowcountry of South Carolina. Finally the author offers a prognostication of what may come of current nonjurisdictional isolated wetlands.
Liz Lonardo, Global Warming: Its Affects On South Carolina And What The State Can Do To Prevent Further Destruction
Climate change is an issue of such importance is must be addressed on an international, federally, and state level. This paper discusses how South Carolina is being affected by climate change, what the state can do about the affects of climate change, along with the consequences of continuing to ignore global warming. All sectors of South Carolina are being affected by climate change, with coastal areas, agriculture, human health, ecosystem, forest, and water resources being just a few examples. South Carolina needs to address these issues, but first the state needs to understand exactly how it is being impacted. North Carolina has established a legislative Global Warming Committee, whose purpose is to understand what climate change is doing to the state and what they can do about it. Another legislative bill, the Pavley Law, was passed by California, which addressed car emissions. The paper focus on how progressing in a manner similar to these two bills here in this state could help South Carolina prevent further destruction of the environment from global warming.
Nathaniel Mark, Brownfields: Remediate, Recycle, Reuse; and How to be Protected from Liability when doing so
Remediate. Recycle. Reuse. In recent years there have been developments to encourage the remediation and redevelopment of brownfields across the United States. These brownfields are usually abandoned properties that are potentially contaminated and could cause the owner to be liable under Comprehensive Environmental Compensation and Liability Act (CERCLA). In the past developers were reluctant to redevelop brownfields due to the high environmental liability risk involved. Today there are numerous tools that both encourage redevelopment of these properties and protect the owner from environmental liabilities. The paper examines the current tools available to developers to protect themselves and how one goes about implementing them into every day use.
Bradford Owensby, Savannah River Site and the New Approach for High-Level Waste Disposal: Is Reclassification a Solution or a Cop-out
The United States has accumulated over 70,000 metric tons of nuclear waste. Much of this waste is generated from Nuclear Weapons production. In South Carolina, the Savannah River Site (SRS) produced weapons grade plutonium for fifty years, an activity that has generated over 38 million gallons of high-level radioactive waste that is stored in tanks at two locations at the Savannah River Site. Because the waste will be radioactive and pose significant risks to both the general population and the environment, long term geologic storage in a secure location is considered the only viable approach to disposal. Despite the concerns of scientists, citizens groups, and years of policy development, the current government has broken from previous wisdom and chosen to reclassify high-level wastes that cannot be currently be extracted and treated based on current technology. This decision will leave high-level waste on site at the Savannah River Site and will pose a significant risk to South Carolina. This paper argues that short sighted attempts to cut costs and create compliant tank space for current and future operations at Savannah River Site has resulted in a revisionist approach to nuclear waste disposal through Section 3116 of the National Defense Authorization Act. By allowing a reclassification of high level wastes, the Department of Energy has been allowed to undue decades of policy in derogation of the Nuclear Waste Policy Act. The author thus argues that Congress should remove language from §3116 that allows for reclassification of high level waste at Savannah River Site. To do otherwise not only sets a dangerous precedent, but poses a significant risk that remain in South Carolina for thousands of years.
Kristin Pawlowski, Eyes on the Prize: A New Approach to South Carolina's Voluntary Cleanup Program
In response to the Small Business Liability Relief and Brownfields Revitalization Act (Public Law 107-118; H.R. 2869) South Carolina restructured its Voluntary Cleanup Program (VCP), incorporating brownfields remediation as a primary component. Although the brownfields program has rendered some success, the program provides market incentives that have not been fully utilized; an oddity for a brownfields program which is typically driven by market incentives which the state offers to offset liability risks and cleanup costs associated with redevelopment. Although on paper South Carolina appears to offer appealing market incentives, the fact that they have not been used demonstrates that South Carolina's market incentives are not structured to be of value to potential purchasers. The inaccessibility of the offered market incentives to potential developers is directly affecting the success of the VCP; and, South Carolina would stand to further statewide brownfields remediation within its borders by identifying, addressing and resolving theses inefficiencies.
Matthew E. Pecoy, Sitting on the Dock of the Bay: South Carolina's Need for a General Submerged Land Lease Program
This paper analyzes South Carolina's current dock permitting program and the negative environmental impacts associated with dock construction in order to illustrate the need for a submerged land lease program for docks. The paper begins by tracing the development of the public trust doctrine in both the United States and in South Carolina, and then the current dock permitting program and regulatory environment in South Carolina is assessed. The paper then illustrates the shortcomings of the current permitting program and reveals the negative environmental impacts of dock construction. The paper concludes by suggesting a model for a submerged land lease program and recommending appropriate uses of the revenue generated by it.
Guy Quinn, No Net Loss of Wetlands Functions
The Federal government's no net loss goal requires the attainment of no net loss of the nations' wetlands base in terms of acreage and functions. However, claims that the no net loss goal has been achieved and surpassed, leading to recent net gains in, take into account only the acreage component of the no net loss goal. This is evident in the practices of regulators and the regulated community involved in the issuance of Section 404 permits, which authorize the filling of wetlands in exchange for mitigation by way of restoration, creation, preservation or enhancement of other wetlands in other locations. Since 2000, reports by the Government Accountability Office, National Academy of Sciences and others have echoed the finding that the Section 404 permitting process is not helping toward the national goal of no net loss of the nation's wetland functions. As a result, the National Wetland Mitigation Action Plan (MAP), was initiated by multiple government agencies to improve the process. The MAP process, however, has been on hold for two years as a result of proposed rulemaking by the EPA and Corps of Engineers that also deals with the shortcomings of the Section 404 permitting process. The hydrogeomorphic (HGM) method is the best known method in existence for assessing wetland functions. Therefore, HGM is discussed, with an eye toward the possibilities for its widespread implementation, and the subsequent advance toward no net loss of wetland functions that such implementation would entail. The paper concludes that wetland functional assessments are needed to guarantee the end of losses of the nation's wetland base in terms of both acreage and function.
Anna Scott, Nanotechnology: How Should the Government Respond to the Benefits and Risks Involved?
Over the past few decades, science has seen many new advances, and the world has adapted and grown with them. The human genome project and cloning are just a few such advances. Molecular nanotechnology is quickly becoming one of these new technologies that will revolutionize science and the way the world works. This paper first examines what exactly nanotechnology is, why it holds such potential to recreate many current products, and the potential it holds for creating new technology. Then it addresses how nanotechnology can help the environment and other pressing societal issues in the status quo and what problems it poses to our world, especially the environment, throughout its lifecycle. Finally, the paper analyzes what the government has already done to promote the development of nanotechnology, the precautions it take to prevent the many dangers involved with development of nanotechnology, as well as what other regulations the government should establish to promote positive development on the international, national and statewide level. Ideally, Congress should work on the international level to coordinate development and regulation of nanotechnology, but it should also create regulations on the national level. On the state level, South Carolina has existing agencies that may be able to regulate nanotechnology, but it should begin to restructure its agencies to deal with the environmental problems that may threaten the state.
Joseph Smith, Tragedy of the Commons on the Wild and Scenic Chattooga River
For over thirty years the United States Forest Service has managed the Wild and Scenic Chattooga River corridor. The Wild and Scenic Rivers Act of 1974 entrusted this duty to the USFS coinciding with the River's inclusion as one of the first areas included in the Act. The paper begins with background, detailing the fifty-seven miles of the Chattooga corridor, stretching from North Carolina to part of the South Carolina-Georgia border benefit that from the Act's protection. The area offers an array of outdoor recreational opportunities including hiking, bird watching, trout fishing, and whitewater paddling. Not only can one enjoy these activities, the river corridor possesses other wilderness values in its untrammeled scenery and undeveloped landscape. Over the years, the Chattooga has gained national, if not world wide, recognition due to the famous movie "Deliverance" being shot on it. Also, with the exponential increase in the popularity of outdoor recreation, the commercial rafting enterprise on the lower two sections has allowed thousands to experience the River's wonders. However, out of the fifty-seven miles protected under the WSRA, the first twenty-one miles known as the "Headwaters" has experienced management practices inconsistent with the governing wilderness laws. As explored in this paper, the designated "wilderness" section of the river receives the most heightened level of protection from the managing agencies, however the USFS in the Sumter National Forest has unjustifiably chosen to exclude private whitewater paddling from this area. This ban, lacking adequate justification, has and continues to endure to the detriment of the whitewater community. This work seeks to evaluate the factual, philosophical, and political reasons as to why the USFS has acted in such a manner and point out their in adherence to both law and policy.
Duncan Teed, South Carolina Shrimping, An Exploration
The South Carolina shrimping industry was almost wiped out earlier this decade and is still in a precarious position. This paper explores the question of whether South Carolina should allow the continued shrimping of its waters and what is being done to protect the environment? The paper concludes that the actions and initiatives undertaken by the South Carolina Shrimp Task Force in conjunction with Clemson, the South Carolina Shrimper's Association, and the SSA seem to be having a positive affect on the industry.
Ryan W. Trail, Protecting The ACE Basin: Balancing Land Protection and Economic Development
The ACE Basin surrounds the confluence of the Ashepoo, Combahee, and the Edisto Rivers between Charleston and Beaufort counties. This paper begins by exploring the background of the ACE Basin, the 350,000 acre region which makes up one of the largest undeveloped estuaries on the East Coast. Traditionally, residents of the Basin made their livings from farming. As the coastal areas of South Carolina became developed, this traditional land use grew less and less effective as a means of sustaining the local economies of the rural Colleton County towns of Walterboro, Cottageville, and Edisto Beach. Fearing increased pressures from developers, local and state leaders, conservation organizations and citizens combined efforts to help ensure the ACE Basin remain the diverse habitat it has been for centuries. The paper thus continues by exploring the fact that by granting conservation easements to government agencies and conservation organizations, landowners permanently protected much of the land in the region from development. Further strides were made by government purchases of land in the Basin for public use (Wildlife Management Areas and State Parks). To date, over 160,000 acres of land in the ACE Basin has been permanently protected against development. The paper concludes that further steps should now be taken (through mitigation banking and increased air and water quality standards) to restore damaged wetlands and ensure their safety and sustainability for the future.
Jamie Walters, The Conservation Voters of South Carolina: Structure, Impact, Future
The Conservation Voters of South Carolina (CVSC) strives to advance environmental protectionist ideas through several different methods. As this paper explores, it is a complex organization that has been able to impact the politics of South Carolina in some very important ways. The organizations helps focus environmental lobbying efforts. The CVSC has worked hard to bring together conservation organizations and promote political candidates who have a conservation agenda.