South Carolina Coastal Conservation League v. U.S. Army Corps of Engineers

The federal district court for the District of South Carolina granted summary judgment to defendants on claims challenging the U.S. Army Corps of Engineers Clean Water Act Section 404 permit for a mixed-use residential and commercial development on the Cainhoy Peninsula near Charleston, South Carolina. Under the Clean Water Act, the court found that the Corps did not act arbitrarily and capriciously by determining that the project was the least environmentally damaging practicable alternative. The court also deferred to the Corps’ determination that the project would not lead to significant degradation of the waters of the United States and found that the Corps’ public interest review carefully considered the project’s benefits of housing, public services, and conservation “as compared to foreseeable detriments such as increased flooding.” Under the National Environmental Policy Act, the court found that “ample citations to the administrative record” reflected that the Corps considered impacts that the plaintiffs contended the defendants failed to consider, including impacts arising from climate change and sea level rise. The court also found that the plaintiffs had abandoned their Endangered Species Act and Administrative Procedure Act claims against the U.S. Fish and Wildlife Service.

In a challenge to a Clean Water Act permit authorizing the filling of wetlands for construction of a mixed-use development, the federal district court for the District of South Carolina denied the plaintiffs’ motion for consideration of extra-record evidence. One of the documents the plaintiffs sought to submit was a report that they argued would provide missing data to supplement the environmental assessment’s (EA’s) analysis of flooding impacts and impacts from docks. The plaintiffs said the report included explanations of technical information in the EA about “what Base Flood Elevation requires for the site, the flaws in FEMA Flood Insurance Rate Maps, and how sea level rise will impact stormwater runoff on the site.” The court agreed with the defendants that the EA was “replete with discussion” of the project’s potential flooding impacts and that the extra-record report would not explain information not adequately explained in the record or show that the Corps failed to consider relevant evidence.

The federal district court for the District of South Carolina declined to block a developer from proceeding with plans for a multi-use project on a 9,076-acre property in the City of Charleston and Berkeley County. The court found that the plaintiffs did not show a substantial likelihood of success on their claims that the U.S. Army Corps of Engineers acted arbitrarily and capriciously by failing to prepare an environmental impact statement (EIS) in connection with its issuance of a Clean Water Act permit for the development and by relying on a biological opinion and incidental take statement prepared by the U.S. Fish and Wildlife Service. The plaintiffs’ arguments included that there were numerous potential significant effects that would result from the project, including “placement of 45% of housing acreage within the 100-year floodplain while Charleston already struggles with rising seas.” The court said the environmental assessment had provided “considerable discussion” of the project’s impacts on land and surrounding communities and found that the plaintiffs did not show “clear entitlement” to relief on their claim that the failure to prepare an EIS was arbitrary and capricious.

The federal district court for the District of South Carolina ruled that environmental groups could assert claims against both the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act’s citizen suit provision to challenge a permit to fill wetlands for a mixed-use development. The plaintiffs’ arguments under the Clean Water Act included that the permit allowed for significant degradation of wetlands that would make residents more vulnerable to flooding and that unnecessary placement of development in locations vulnerable to future sea level rise, flooding, and storm surge would have significant adverse economic effects. The plaintiffs also asserted NEPA and Endangered Species Act claims, which were not the subject of this motion.