COLUMBIA, SC (WMBF) – An Administrative Law Court judge will decide if construction on International Drive should be paused as the case continues through the legal system.
Attorneys for Horry County, the South Carolina Department of Health and Environmental Control and the South Carolina Environmental Law Project met in Columbia at the administrative law court Thursday for a hearing on a motion to stay.
The SCELP made the motion, saying construction needs to be stopped as they appeal to other courts because no remedies are available once the road is paved.
"Once paving commences, that effectively moots our case and leaves petitioners without any remedy," said Amy Armstrong, SCELP executive director.
Plus, she said courts have not ever ordered the removal of a project once it has been constructed under authorized permits.
"Obviously the road is constructed, the case is going to be moot," Armstrong said. "You won't have preserved the court's jurisdiction because they won't be able to grant any relief because the road will already be built."
Armstrong brought up the irreparable harm the construction can have on wetlands and wildlife in Lewis Ocean Bay Heritage Preserve. She said the need for the stay is urgent, so she asked the judge to issue a decision on the bench Thursday.
"I don't know what the extent of the work is, but there's some being done and we think it's very important to preserve the wildlife and the habitat, the wetlands, the water quality, everything that's going to be impacted by the project," she said.
However, Stan Barnett, who is representing Horry County, told the judge the longer the county does not have International Drive available for public use, the longer public safety is at risk.
"Any delay of that does create a harm to the county," he said.
Barnett added the county has an obligation to spend the money tied to the permit that was issued. He said permit holders can't just sit on the permit indefinitely.
"We're mandated by the citizens of Horry County," Horry County Council Chairman Mark Lazarus said. "They voted for this project. The money has been collected."
Lazarus said right-of-ways have been cleared and a single road bed is down. He added it will still be quite a while before asphalt and drainage is in place and the project still has to go out to bid.
Judge Ralph Anderson told the court the difference between the state and federal roles in the construction process are making him unsure about what his own decision on a stay would even mean for the construction going on now.
He said he feels he only has the authority to put a stay on his own decision that approved the state certifications and he's not sure if those directly led to the federal permits being issued.
Therefore, he said he does not know if a stay on those state certifications would stop construction.
"This is a novel issue," Anderson said. "It's one that doesn't occur very often. I want to think this through."
He did not give a ruling from the bench Thursday and will issue the decision at a later date.
Armstrong said she thinks the Administrative Law Court's decision on the state certifications directly affects construction.
"If the judge stayed his order, that would mean the county didn't have the state approvals that are required under state law," she said.
Armstrong said if he denies the stay, SCELP can request one from the South Carolina Court of Appeals but the group had to go to the Administrative Law Court first.
She also said the Administrative Law Court is under the executive branch so the South Carolina Court of Appeals will be the first opportunity for a judge under the judicial branch to review the case.
SCELP has also filed a federal lawsuit against Horry County, the U.S. Army Corps of Engineers and the Environmental Protection Agency, which asks for an injunction for the federal permits because the permitting process was not as thorough as SCELP maintains the law and scope of the project require.