Suit to Protect Freshwater Wetlands Made Moot by Salinity

By Casey C. Sullivan, Esq. on June 19, 2015 | Last updated on March 21, 2019

The South Carolina Coastal Conservation League's lawsuit to prevent the loss of freshwater marshland on the banks of the Back and Savannah Rivers can't go ahead, the Fourth Circuit ruled today. When a developer sought to flood longstanding freshwater marshes with saltwater, the environmental group argued that doing so would remove important habitat and release contaminants.

Except, after the suit was filed, the developers found that the freshwater marshes were in fact already quite salty. Saltier than the ocean water which would flood them. That rendered the League's suit moot, the Fourth Circuit found, since the injury they claimed can no longer be redressed.

The Wetland Development

The League sued to protect 485 acres of wetland in a 700-acre private development which abuts tributaries of the Back River and Savannah River. About 30 percent of the development is tidal marshes, while the remaining 485 acres at issue are marshes separated from the tides by 150 year old embankments.

The owner of the wetlands, South Coast Mitigation Group, had planned to remove the embankments, flooding the marshland and creating a wetland conservation credit bank. Developers who destroy existing wetlands would be able to purchase offsets from the group.

In breaking the embankments, though, environmental advocates argued that the Group would release thousands of fill material, potentially full of contaminants from the highly polluted Savannah River. Under the Clean Water Act, discharges of pollution and fill material into "waters of the United States" require a permit from the U.S. Army Corps of Engineers. They were given such approval, despite the objections of federal and state conservation agencies.

To prevent potential contamination, the Conservation League sued. They argued that the Corp's fill permit should never have been issued, since the project does not "restore" wetlands, but converts freshwater wetlands to saltwater wetlands.

New Salinity Measurements

While the case was starting, the marshland's owners took new salinity measurements and found that the freshwater wetlands had already reached a high level of salinity -- they were now saltwater wetlands. In fact, they were saltier than the Atlantic water that they would be flooded with. The owners moved to dismiss the League's complaint, arguing that it was moot, since the injury they seek to prevent had already occurred.

The League didn't challenge the conclusion that the wetlands had shifted, but argued that they could simply be restored to freshwater conditions. The Fourth Circuit, however, disagreed. Since the action the conservation League opposed would not make the water any more saline than it already is -- in fact, it will make it less so -- then stopping the change would not prevent the injury the League asserted. 

The injury is unredressable. Yes, the Mitigation Group could flood the marsh with saltwater, but the League wasn't suing over the presences of saltwater, they were suing over specific actions that they alleged would make the freshwater marsh a saltwater one.

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