Richland County Sheriff Leon Lott made the decision Monday.
The photo showed Phelps smoking from a marijuana pipe at a University of South Carolina party in November when he visited the school.
Phelps has called his judgment bad and said he would learn from his mistake.
He was suspended by USA Swimming for three months in the wake of the photo, and Kellogg Co. said it would not renew its endorsement deal with one of the world's most acclaimed athletes.
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