A permit has been issued for Bay Point Island. An environmental group is trying to stop it

A septic permit issued to Bay Point Island LLC, a developer planning to build a single-family home on fragile Bay Point Island, is being contested by an attorney representing a fishing association.

The Gullah Geechee Fishing Association says the state violated the Freedom of Information Act by not providing notice when the permit was filed, thus preventing it from filing an appeal on time.

A spokesperson for the Department of Health and Environmental Control, which authorized the permit, had no comment on the accusation and said it does not comment on pending litigation.

According to the S.C. Environmental Law Project, installation of a septic system on such a dynamic and low-lying island, with predominantly sandy soil, poses a risk of contamination to surrounding waters and to marine life.

The fishing association is trying to protect its members, whose businesses and livelihoods depend on healthy seafood populations in Port Royal Sound, where Bay Point Island is located.

The island itself also has significant natural resources and assets, according to the appeal. It is recognized as an Audubon Important Bird Area — between 5,000 and 8,000 shorebirds take residence on Bay Point Island four months out of the year — and it is a loggerhead sea turtle nesting habitat. It’s also one of the last undeveloped barrier islands in South Carolina.

Prior attempts to develop projects there, including a resort, were met with overwhelming opposition and led the Beaufort County zoning board to reject a zoning permit in September 2020.

The appeal says DHEC violated the Freedom of Information Act by not notifying the S.C. Environmental Law Project when the permit was issued after its attorney filed two FOIA requests.

The first was filed on July 19 for land disturbance permits on Bay Point Island, likely submitted by Bay Point Island LLC, the FOIA request said. The second, more specific request was filed on Aug. 31 and asked for applications for permits or permits issued by DHEC for septic tanks, land disturbance permits or coastal zone consistency review for specific properties.

Both times DHEC responded that it had no information or files related to those requests.

Leslie Lenhardt, lawyer for the law project representing the fishing association, said they did not hear about the septic tank permit until November, when the association received an email from Beaufort County.

The Gullah Geechee are descendants of enslaved central and west Africans who were brought to North Carolina, South Carolina, Florida and Georgia in the 18th century. According to the National Park Service, because their enslavement was on isolated coastal plantations, sea and barrier islands, the Gullah Geechee were able to preserve their African traditions, including their language, Gullah, which is not spoken anywhere else in the world.

Lenhardt said the bottom line is the coastal policies that take into account the pristine, fragile nature of Bay Point Island weren’t considered.

“A septic tank on an island of that nature and sensitivity is ill advised, and it shouldn’t be approved,” Lenhardt said.

DHEC said it received an application for a permit to construct an onsite wastewater system for 98 Bay Point Island Drive on Aug. 31, 2021, which is the same day the environmental project filed its second request for information.

“After a thorough evaluation and after confirming that the permit application complies with all regulatory requirements, DHEC issued the permit on September 23, 2021,” the agency said.

Last week DHEC received notice that the S.C. Environmental Law Project is filing a request for a hearing to challenge the permit decision.

Under normal circumstances, with permits that are placed on public notice, there are 15 days from the date the decision is made to file an appeal, she said. This would’ve made Oct. 8 the final day to appeal. However, because DHEC did not notify the law project about the application, it missed that deadline and didn’t file the appeal until last week.

Because septic tank permits are not placed on public notice, filing a FOIA request is the only way to find out if they have been issued, Lenhardt said.

The law project also said DHEC failed to conduct the required Coastal Zone Consistency review for the application.

Lenhardt said the rules conflict about when the Coastal Zone Consistency review is mandated. The coastal management program document states that septic permits are exempt from Coastal Zone Consistency reviews. However, the South Carolina Coastal Zone Management Act says all state and federal permit applications for activities within the eight-county coastal zones — including Beaufort, Colleton and Charleston counties — must be reviewed.

“It is particularly important to have a Coastal Zone Consistency review for an island like Bay Point, but it’s required for the whole county,” Lenhardt said. “The program policy does not trump the statute, and they should be required” to do the Coastal Zone Consistency review.

Lenhardt said depending on what motions and rulings are made in the case, it could be much later in the year before the law project gets a hearing.

“It’s a clunky, slow process,” she said.