South Carolina Supreme Court sides with developer in fight over Gadsden Creek

COLUMBIA, S.C. (WCBD)- The South Carolina Supreme Court on Wednesday sided with a Charleston-based developer in the fight over whether a portion of a historic tidal creek on the peninsula can be filled in.

The high court unanimously affirmed a 2022 administrative law court decision that upheld a permit granted by the now-defunct South Carolina Department of Environmental Control (DHEC) to the WestEdge Foundation, allowing commercial development of Gadsden Creek and surrounding wetlands.

The permit, issued on July 12, 2021, authorized WestEdge to fill in 3.9 acres of critical area on the west side of the Charleston peninsula.

Community group Friends of Gadsden Creek (FOGC) attempted to challenge the permit in court, arguing that the creek should be protected from development, citing concerns about flooding and loss of habitat and highlighting its role as a conservation and historical teaching tool.

WestEdge, meanwhile, argued that filling Gadsden Creek was necessary, partly because it runs over an old landfill, creating exposure to harmful contaminants in the water.

Further, attorneys argued during the June 19 Supreme Court hearing over how to interpret the state’s critical area and water quality regulations.

According to DHEC regulations , “Dredging and filling in wetland areas should be undertaken only if that activity is water-dependent and there are no feasible alternatives,” which FOGC argued is not true of WestEdge’s development plan.

The administrative law court disagreed with FOGC’s interpretation of the provision and concluded that DHEC properly approved the permit, a decision referenced in the Supreme Court’s unpublished opinion.

The court acknowledged it was “disturbed and disheartened by the loss of Gadsden Creek in its natural form” but ultimately sided with the lower court and WestEdge.

“…after painstakingly reviewing the evidence, we find the issues of stormwater runoff, a polluted urban creek, and tidal flooding have combined to create an extremely rare circumstance where it is in the public’s interest to approve the permit to fill in Gadsden Creek,” the opinion stated.

Still, the court maintained that its decision should not be used as a precedent for future permitting situations — a small win, according to an attorney for Friends of Gadsden Creek.

“We are disappointed by today’s ruling and we are surprised the Court did not choose to address the many issues we raised on appeal,” said Ben Cunningham. “The only small positive to take from the Order is that the Court was clear that the ruling does not have any precedential value so it cannot be used to justify the destruction of additional public trust resources throughout South Carolina.”

The WestEdge Foundation said in a Wednesday statement that it now plans to move forward with its proposed project, which includes spending millions of dollars to build shops, homes, and restaurants to support the Medical University of South Carolina and spur economic growth.

“WestEdge Foundation is pleased with the Supreme Court’s decision to uphold the S.C. DHEC permit, allowing our project to finally move forward and provide real flooding relief and protection from pollution in the Westside community,” said CEO Michael Maher. “We sincerely wish there was a way to clean and preserve what remains of Gadsden Creek, and WestEdge started out with that intention. But as engineers concluded and our state’s highest court has affirmed, the only feasible way to provide the community with long-term relief and protection from worsening flooding is to proceed with our plan to cap the landfill and install a new stormwater system.”

But, Friends of Gadsden Creek said the fight is far from over.

“Our dedication to stopping the WestEdge development has not wavered,” the group said. “We will continue to hold the City of Charleston accountable by demanding the restoration and revitalization of Gadsden Creek, and reparations for Gadsden Green.”

The group said it will continue to lobby the City of Charleston to find alternative financing and development plans for the site.

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