Coastal Conservation League v. U.S. Army Corps of Eng'rs
| Decision Date | 18 November 2016 |
| Docket Number | Civil Action No.: 4:16-cv-03008-RBH |
| Court | U.S. District Court — District of South Carolina |
| Parties | Coastal Conservation League and South Carolina Wildlife Federation, Plaintiffs, v. United States Army Corps of Engineers, Charleston District; Lt. General Todd T. Semonite, in his official capacity as Chief of Engineers, U.S. Army Corps of Engineers; Lt. Colonel Matthew Luzzatto, in his official capacity as District Engineer, U.S. Army Corps of Engineers, Charleston District; United States Environmental Protection Agency; Gina McCarty, in her official capacity as Administrator of the U.S. Environmental Protection Agency; Heather McTeer Toney, in her official capacity as Regional Administrator, Region IV, U.S. Environmental Protection Agency; and Horry County, Defendants. |
This case concerns the construction of a road known as International Drive in Horry County, South Carolina. Two public interest environmental organizations—the Coastal Conservation League and the South Carolina Wildlife Federation (collectively, "Plaintiffs")—filed this action challenging a permit issued by the United States Army Corps of Engineers ("the Corps") and seeking to enjoin further construction work being done by Horry County at the site. The matter is presently before the Court on Plaintiffs' Motion for Preliminary Injunction. See Pls.' Motion, ECF No. 6. The Court held a hearing on October 28, 2016, and took the motion under advisement.1 See ECF No. 46. Havingcarefully reviewed Plaintiffs' motion, the parties' briefs and arguments, and the entire record, the Court denies Plaintiffs' motion. In so ruling, the Court makes the following findings of fact and conclusions of law.
Plaintiffs have filed this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 through 706; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 through 4370h; and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 through 1387. See Complaint, ECF No. 1. Plaintiffs challenge actions by the Corps authorizing impacts to approximately twenty-four acres of wetlands and waters of the United States in connection with the construction of International Drive in Horry County, South Carolina. Specifically, Plaintiffs challenge various agency actions taken by the Corps, including: (1) the preparation of an environmental assessment ("EA") and the issuance of a finding of no significant impact ("FONSI") pursuant to NEPA, as well as the Corps' alleged failure to prepare a more detailed environmental impact statement ("EIS"); and (2) the issuance of a permit pursuant to Section 404 of the CWA ("the Section 404 permit"). See Compl. at 1-2. Plaintiffs name as defendants the Corps, individual Corps engineers, the Environmental Protection Agency ("EPA") for its CWA oversight role, individual CWA administrators, and Horry County, the permit holder. Id. at 1. Plaintiffs seek a declaratory ruling that the Corps and EPA defendants (collectively, "the Federal Defendants") violated NEPA by failing to prepare an EIS and violated the CWA in issuing the Section 404 permit, and an injunction to prevent Horry County from working on the road until an EIS isprepared. Id. at 25-26. The Corps issued the permit, which authorizes the widening, realignment, and paving of a 5.6 mile portion of the existing dirt road known as International Drive. Plaintiffs have filed the instant motion for a preliminary injunction requesting that the Court enjoin any further construction activities on International Drive. See ECF No. 6.
The APA permits judicial review of claims challenging federal agency actions under the CWA and NEPA. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (citing 5 U.S.C. § 702). NEPA requires federal agencies such as the Corps to analyze the environmental impact of their proposals so that the consequences of the action can be studied before the action is implemented and potential negative environmental impacts can be avoided. See Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371 (1989). Nat'l Audubon Soc'y v. Dep't of Navy, 422 F.3d 174, 184 (4th Cir. 2005). NEPA requires federal agencies "to the fullest extent possible" to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "An agency is not required to prepare a full EIS if it determines—based on a shorter environmental assessment (EA)—that the proposed action will not have a significant impact on the environment." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 16 (2008) (citing 40 C.F.R. §§ 1508.9(a), 1508.13). Under section 404 of the CWA, Horry County must obtain a permit from the Corps before it may fill wetlands in order to construct the roadbed for International Drive. See 33 U.S.C. § 1344.
On November 26, 2013, Horry County submitted a Section 404 permit application2 to the Charleston District of the Corps requesting authorization to impact approximately twenty-four acres of freshwater wetlands as part of a proposed project to realign, widen, and pave a 5.6 mile portion of International Drive. Administrative Record ("AR") at 119-286. Horry County's stated overall purpose for the road is to relieve current and anticipated traffic congestion and provide a secondary evacuation route. AR at 122.
In its present state, International Drive is a mostly unimproved dirt road approximately twenty to twenty-five feet wide. AR at 243. The proposed road construction consists of widening, paving, and realigning the existing unimproved portion of International Drive and making it a four-lane road. AR at 1360. The project site is approximately seven miles southeast of Conway and is bordered by S.C. Highway 90 to the north, private forested lands to the west, River Oaks Drive to the south, and the Lewis Ocean Bay Heritage Preserve ("LOBHP") to the east. AR at 243, 1502-04. Earlier, in June 2013, Horry County and the South Carolina Department of Natural Resources ("SCDNR") entered into a contract whereby the SCDNR conveyed Horry County a right-of-way easement for highway purposes over certain lands located within the LOBHP, an approximately 10,000 acre state heritage preserve held in public trust by the SCDNR that contains Carolina bays and forested uplands and wetlands inhabited by a variety of wildlife including the black bear, Venus flytrap, and federally endangered red-cockaded woodpecker.3 AR at 623-40, 1431-33. The June 2013 contract contains certain conditions (which willbe discussed in detail below) for the protection and preservation of wildlife affected by construction of the road. See, e.g., AR at 627-30.
On December 11, 2013, the Corps issued a public notice advertising Horry County's permit application. AR at 374-89. The EPA notified the Corps on January 15, 2014, that it would not be commenting on the public notice. AR 415-16. Other federal and state agencies, including the United States Fish and Wildlife Service ("USFWS"), the National Marine Fisheries Service ("NMFS"), and the SCDNR, as well as Plaintiffs and other public entities, submitted numerous comments on Horry County's application during various stages of the Corps' review of the application. See, e.g., AR at 401-02, 410, 413-14, 417-26, 486-88, 498-500, 520-22, 681-703, 783-84, 889-90, 1142-48, 1150-53, 1276-77, 1364-76, 1398-1407, 1420-28. Through their comments, the agencies and the public expressed a variety of concerns including: habitat fragmentation of flora and fauna such as the black bear, red-cockaded woodpecker, and Venus flytrap, the lack of wildlife underpasses, traffic collisions between motorists and black bears, hydrologic effects, cumulative/secondary impacts and future development (particularly the existence of curb cuts), road size and speed limit (two lanes with a thirty-five-mile-per-hour speed limit versus four lanes with a forty-five-mile-per-hour speed limit), alternatives, and mitigation (including mitigation calculations and the location of the mitigation site). AR at 401-02, 414, 417-26, 486-88, 498-500, 681-703, 783-84, 1142-48, 1150-53.
During the application process, the Corps conducted site visits, inspected the wetlands, held meetings with the County, and requested the County to submit additional information addressing the comments received from the agencies and the public. See, e.g., AR at 504-08, 704-82, 785, 1358-59, 1376, 1434-35. Through these requests, the Corps sought, inter alia, additional information regarding mitigation, avoidance and minimization of potential impacts to United States waters, and projectalternatives. Id. One issue of particular concern was Horry County's proposed compensatory mitigation plan advertised in the public notice, which called for "the enhancement and restoration of 93.4 acres of wetlands adjacent to the South Prong of Sterritt Swamp located in central Horry County just west of the proposed project and . . . proposed to generate 310.8 wetland mitigation credits." See AR at 128, 160-237, 374-75. After meeting with the Corps, Horry County withdrew this initial mitigation plan and submitted a revised mitigation plan that required the County to "enhance 121.54 acres of mature forested wetlands and interior drainageways associated with Conch Creek, Bass Lake, and the Pee Dee River to provide compensatory mitigation for the proposed improvements to International Drive" (collectively referred to as "Bass Lake Tract III").4 AR at 536, 606-22. Besides providing the revised mitigation plan to the Corps, Horry County also provided detailed responses to the other concerns raised in the agencies' and the public's comments. See, e.g., AR at 523-674,...
To continue reading
Request your trial