CHARLESTON, S.C. (WCBD)- A South Carolina judge sided with developers Monday in a dispute over a historic Downtown Charleston creek, paving the way for further development in the area.

The lawsuit, filed in October 2021, sought to prevent WestEdge from partially filling in and building on Gadsden Creek by challenging the permit granted by the Department of Health and Environmental Control (DHEC).

The DHEC permit authorized WestEdge to fill in 3.9 acres of the ‘critical area’ on the west side of the Charleston peninsula for a stormwater mitigation project.

“The project is in part to help control the tide and the influence of the tide. And then ultimately once the tide is controlled, and the new stormwater system is put in place, we can then cap the landfill that will permanently remove the exposure of contaminants that are currently risking the health, safety, and welfare of the public in the adjacent community, Gadsden Green and the West Side neighborhood,” said Michael Maher, the CEO WestEdge Foundation.

On behalf of the community-group Friends of Gadsden Creek, the South Carolina Environmental Law Project (SCELP) argued the creek should be protected citing concerns over flooding and loss of habitat, and highlighting its role as a conservation and historical teaching tool in the community.

WestEdge, on the other hand, contended that filling Gadsden Creek was necessary, in part, because it runs over an old landfill, creating potential exposure to harmful contaminants. DHEC agreed with that sentiment asserting “the landfill needs to be capped to protect the health, safety, and welfare of the public.”

“It’s pretty clear that the water quality issues, the growing tidal flood impacts going in and out of that neighborhood and then the ongoing stormwater flood issues, there is a public health hazard there and this action will solve all of those public health hazards permanently,” said Dale Morris, the Chief Resilience Officer for the City of Charleston.

Ultimately, the judge sided with WestEdge, finding evidence showed that the planned project would reduce flooding associated with stormwater and tidal events and resolve the issue of contamination, both of which are “public benefits.”

“This was a challenging case, and the Court does not lightly approve of the elimination of
critical area tidelands that are so integral to the health, welfare, and vibrancy of our natural
the ecosystem here in South Carolina,” the judge wrote. “However, this case presents a unique hurdle of a naturalized drainage ditch for a landfill that is now being contaminated by that landfill.”

Friends of Gadsden Creek and SELP expressed disappointment over the ruling saying they disagreed with the Court’s rationale.

“While we are glad the Court noted that Friends of Gadsden Creek has ‘some valid concerns’ regarding this proposed project, those concerns were not given sufficient weight by the Court in its reasoning,” Ben Cunningham, staff attorney at the South Carolina Environmental Law Project said. “Similarly, while we are glad the Court recognized ‘that Gadsden Creek, in its historic manifestation as a sinuous natural creek and marsh ecosystem was very important to the local community’ the Court did not properly consider how important Gadsden Creek remains to the local community today.”

The community group said it is exploring further legal options and pledged to continue fighting to protect the creek.

“The fight is far from over,” representatives from Friends of Gadsden Creek said. “This decision is just one step in a long process. Friends of Gadsden Creek is currently considering our legal options and, in the meantime, continuing with our activism efforts. Our dedication to the protection of Gadsden Creek and fight against environmental racism in Charleston has not wavered.”

WestEdge says it plans to spend millions of dollars to build shops, homes, and restaurants to support the Medical University of South Carolina and create economic development on the west side of the Charleston peninsula.

According to Maher, the permit will now go to the Army Corps of Engineers for approval.

Friends of Gadsden Creek released the following response to the DHEC ruling:

“The fight is far from over. Though we are disappointed and respectfully disagree with the ruling released Monday, December 5th, 2022, this decision is just one step in a long process. Friends of Gadsden Creek is currently considering our legal options and in the meantime, continue on with our activism efforts. Our dedication to the protection of Gadsden Creek and fight against environmental racism in Charleston has not wavered.”

The group when on to say, “In 1940, when homes in this area were threatened with “slum clearance”, John Harris and 39 other residents resisted Jim Crow power structures to sign a petition in protest. Inspired by the long-term resilience of the Gadsden Green community, we will continue in this fight until vital protections for Gadsden Creek and the surrounding community are secured.  Despite this ruling, we continue to hold the City of Charleston responsible for addressing the flooding and contamination that they themselves have caused. As the Court stated, “While it is possible from an engineering perspective to restore the creek, protect it from the landfill, and address some flooding issues to an extent, that possibility is not a feasible alternative when balanced against the economic viability of the Development.” We continue to urge the City to explore an economically viable alternative, rather than paving over the last vestige of this vital wetland.”