United States District Court, D. South Carolina, Florence Division
Coastal Conservation League and South Carolina Wildlife Federation, Plaintiffs,
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.
ORDER DENYING PRELIMINARY INJUNCTION
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE
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. See ECF No. 46. Having
carefully 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.
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 is prepared. 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.
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).
“NEPA is a procedural statute; it does not force an
agency to reach substantive, environment-friendly outcomes.
Rather, NEPA simply requires that the agency take a
‘hard look' at environmental impacts before taking
major actions.” 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.
November 26, 2013, Horry County submitted a Section 404
permit application 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.
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. AR at 623-40, 1431-33. The June 2013
contract contains certain conditions (which will be discussed
in detail below) for the protection and preservation of
wildlife affected by construction of the road. See,
e.g., AR at 627-30.
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,
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 project alternatives.
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”). 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, 786-816, 820-88, 919-46,
947-1084, 1379-98, 1407-20.
15, 2016, the Corps issued an EA and FONSI concluding that
the proposed road construction project did not constitute a
major federal action significantly affecting the quality of
the human environment, and therefore, did not require
preparation of an EIS. AR at 1358-1490. In the EA, the Corps
described the road construction project, noted the comments
and responses received, discussed and addressed those
comments and responses, analyzed the potential environmental
impacts of the project, assessed potential alternatives, and
approved Horry County's revised compensatory mitigation
plan. Id.; see generally 40 C.F.R. §
1501.4 (setting forth the requirements of an environmental
assessment). The 133-page EA certified the proposed site for
discharge of dredged or fill material complied with the
section 404(b)(1) guidelines of the CWA (“the 404(b)(1)
Guidelines”). EA at 129. On July 22, 2016, the Corps
sent Horry County a signed Section 404 permit authorizing
impacts to 24.19 acres of freshwater wetlands. AR at
1496-1543. The Section 404 permit included conditions
requiring Horry County to adhere to the mitigation plan and
the 2013 contract with the SCDNR. AR at 1500. Plaintiffs
filed this lawsuit on September 1, 2016,  and filed the instant
motion for a preliminary injunction on September 14,
2016. ECF Nos. 1 & 6.
Rule of Civil Procedure 65 establishes the procedure for
federal courts to grant preliminary injunctions. See
Fed. R. Civ. P. 65. Because of the extraordinary nature of
injunctive relief, the United States Supreme Court has
admonished that preliminary injunctions “may only be
awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter, 555 U.S. at 22.
plaintiff seeking a preliminary injunction must establish all
four of the following criteria: (1) that the plaintiff is
likely to succeed on the merits, (2) that the plaintiff is
likely to suffer irreparable harm in the absence of
preliminary injunctive relief, (3) that the balance of
equities tips in the plaintiff's favor, and (4) that the
injunction is in the public interest. League of Women
Voters of N. Carolina v. N. Carolina, 769 F.3d 224, 236
(4th Cir. 2014) (citing Winter, 555 U.S. at 20). A
plaintiff must make a clear showing that it is
likely to succeed on the merits of its claim.
Winter, 555 U.S. at 20-22. Likewise, a plaintiff
must make a clear showing that it is likely to be
irreparably harmed absent injunctive relief. Id.
Only then may the court consider whether the balance of
equities tips in the plaintiff's favor. Real Truth
About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d
342, 346-47 (4th Cir. 2009), vacated on other
grounds, 559 U.S. 1089 (2010), reissued in
part, 607 F.3d 355 (4th Cir. 2010), overruling
Blackwelder Furniture Co. of Statesville v. Seilig Mfg.
Co., 550 F.2d 189 (4th Cir. 1977). Finally, the court
must pay particular regard to the public consequences of
employing the extraordinary relief of injunction.
Id. at 347.
present several related arguments in support of their motion
for a preliminary injunction. See Pls.' Mem.
[ECF No. 6-1] at 5-6. They challenge the Corps' failure
to prepare an EIS for the project, which Plaintiffs allege
was a “‘major Federal action significantly
affecting the quality of the human environment'”
within the meaning of NEPA and its implementing regulations.
Id. at 5 (quoting 42 U.S.C. § 4332(C)).
Additionally, Plaintiffs challenge the sufficiency of the EA
that was prepared, asserting the EA is inadequate and fails
to meet the NEPA requirement of taking a “hard
look” at an action's environmental impact.
Id. at 5, 12-22. Plaintiffs claim that the Corps
failed to conduct an independent investigation into the
purpose and need of the project, the environmental impacts of
the project, and the existence of practicable alternatives;
and that the Corps failed to support its conclusions with
scientific studies and data as required by NEPA. Id.
at 5-6, 13. Finally, Plaintiffs allege the Federal Defendants
failed to comply with NEPA and failed to properly assess this
project under section 404(b) of the CWA, and that these
alleged failures, conclusions, and decisions were arbitrary,
capricious, and an abuse of discretion in violation of the
APA. Id. at 6, 22-31. Plaintiffs maintain the Corps
should not have issued the Section 404 permit at all because
the project fails to meet the regulatory hurdles required for
authorizing the filling of wetlands and for evaluating the
existence of practicable alternatives. Id.
Plaintiffs assert a preliminary injunction is warranted
because they have a likelihood of succeeding on the merits,
they will suffer irreparable harm without an injunction, the
balance of the equities tips in their favor, and an
injunction is in the public interest. Id. at 12-42.
See also Pls.' Reply [ECF No. 44].
response, the Federal Defendants maintain Plaintiffs have
failed to carry their burden of showing that a preliminary
injunction should be granted. See Fed. Defs.'
Mem. [ECF No. 37] at 1. They argue Plaintiffs cannot meet
their burden of demonstrating a likelihood of success on the
merits because the Corps fully complied with NEPA, the CWA,
and all applicable regulations, and because Plaintiffs cannot
demonstrate the Corps acted arbitrarily or capriciously or
abused its discretion under the APA. Id. at 1,
11-31. The Federal Defendants assert the Corps' 133-page
EA analyzed the proposed permit in compliance with NEPA and
section 404(b)(1) of the CWA. Id. They contend the
Corps thoroughly considered the relevant environmental
impacts, including the project's impacts on wetlands,
wildlife, and the LOBHP, explained its conclusions, and
reasonably determined the project was not likely to have
significant impacts on the environment. Id. at 1-2,
11-18. Moreover, the Federal Defendants assert Plaintiffs
cannot demonstrate an irreparable and imminent injury, the
balance of equities favors the Corps, and an injunction is
not in the public interest. Id. at 2, 31-36.
response, Horry County concurs with the Federal
Defendants' arguments regarding the lack of
Plaintiffs' likelihood of success on the merits.
See Horry Cty.'s Mem. [ECF No. 41] at 11. The
County further maintains that allowing the project to be
completed will not likely result in irreparable harm.
Id. at 11-17. Additionally, the County asserts the
equities tip in its favor because it will suffer both
financial (e.g. construction costs and delays) and
non-monetary (e.g. public safety risks and traffic
congestion) harm if completion of the road is enjoined.
Id. at 17-19. Last, the County argues construction
of International Drive is in the public interest of its
citizens, who are funding the road and need it for various
purposes such as evacuation, emergency services, and traffic
congestion relief. Id. at 17, 19-21.
Administrative Procedures Act
NEPA and CWA claims are subject to judicial review under the
APA. Aracoma Coal, 556 F.3d at 189 (citing 5 U.S.C.
§ 706). The APA provides that a reviewing court is bound
to “hold unlawful and set aside agency action”
for certain specified reasons, including whenever the
challenged act is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A); see Ohio Valley Envtl. Coal.,
Inc. v. United States Army Corps of Engineers, 828 F.3d
316, 321 (4th Cir. 2016). “Review under this standard
is highly deferential, with a presumption in favor of finding
the agency action valid.” Aracoma Coal, 556
F.3d at 192. The Court's “inquiry must be searching
and careful, but the ultimate standard of review is a narrow
one. Deference is due where the agency has examined the
relevant data and provided an explanation of its decision
that includes a rational connection between the facts found
and the choice made.” Ohio Valley, 828 F.3d at
321 (internal quotation marks and citations omitted).
agency decision is arbitrary and capricious “if the
agency relied on factors that Congress has not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Hughes
River Watershed Conservancy v. Johnson, 165
F.3d 283, 287-88 (4th Cir. 1999).
In determining whether agency action was arbitrary or
capricious, the court must consider whether the agency
considered the relevant factors and whether a clear error of
judgment was made. Although this inquiry into the facts is to
be searching and careful, the ultimate standard of review is
a narrow one. The court is not empowered to substitute
its judgment for that of the agency. Deference is due where
the agency has examined the relevant data and provided an
explanation of its decision that includes a rational
connection between the facts found and the choice made.
The arbitrary and capricious standard is not meant to reduce
judicial review to a rubber-stamp of agency action. While the
standard of review is narrow, the court must nonetheless
engage in a searching and careful inquiry of the record. But,
this scrutiny of the record is meant primarily to educate the
court so that it can understand enough about the problem
confronting the agency to comprehend the meaning of the
evidence relied upon and the evidence discarded; the
questions addressed by the agency and those bypassed; the
choices open to the agency and those made.
Aracoma Coal, 556 F.3d at 192-93 (emphasis added)
(internal quotation marks and citations omitted).
in reviewing an agency decision under the APA, a district
court's “review is to be based on the full
administrative record that was before the [agency head] at
the time he made his decision.” Citizens to Pres.
Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971);
see Fishermen's Dock Co-op., Inc. v.
Brown, 75 F.3d 164, 167-68 (4th Cir. 1996).
National Environmental Policy Act
“sets forth a regulatory scheme for major federal
actions that may significantly affect the natural
environment.” Nat'l Audubon, 422 F.3d at
184. It “promote[s] efforts which will prevent or
eliminate damage to the environment and biosphere and
stimulate the health and welfare of man.” 42 U.S.C.
§ 4321. “NEPA's environmental-review
requirements are procedural, not substantive. Thus,
‘even agency action with adverse environmental effects
can be NEPA-compliant so long as the agency has considered
those effects and determined that competing policy values
outweigh those costs.'” Ohio Valley, 828
F.3d at 320 (quoting Aracoma Coal, 556 F.3d at 191).
NEPA's procedural mandates “ensure that an agency
planning a major federal action obtains and considers the
necessary information concerning any significant
environmental impacts that the action may cause, ” and
“[t]hey also guarantee that the public has access to
the relevant information about the proposed action so that it
can participate in the decisionmaking process.”
Webster v. U.S. Dep't of Agric., 685 F.3d 411,
417 (4th Cir. 2012).
reviewing an agency's efforts to comply with NEPA, a
court must perform a two-step analysis. Hodges v.
Abraham, 300 F.3d 432, 445 (4th Cir. 2002). First, the
court must determine whether the agency took a “hard
look” at a proposed project's environmental impacts
before acting. Id. “A ‘hard look' is
necessarily contextual, ” and a court “must take
a holistic view of what the agency has done to assess
environmental impact.” Nat'l Audubon, 422
F.3d at 186 (“[C]ourts may not ‘flyspeck' an
agency's environmental analysis, looking for any
deficiency, no matter how minor.”). “[A]n agency
takes a sufficient ‘hard look' when it obtains
opinions from its own experts, obtains opinions from experts
outside the agency, gives careful scientific scrutiny and
responds to all legitimate concerns that are raised.”
Hughes River, 165 F.3d at 288. While an agency
should consider other agencies' comments, it need not
defer to them when it disagrees and is entitled to rely on
the view of its own experts. Id. “As long as
the adverse environmental effects of a proposed action are
sufficiently identified and evaluated, an agency is vested
with discretion to determine under NEPA that other values
outweigh the environmental costs.” Id.
if the court is satisfied that the agency took the required
“hard look, ” it must then consider whether the
agency's conclusions are arbitrary or capricious.
Hodges, 300 F.3d at 445. Thus, in conducting a NEPA
inquiry, the Court must “make a searching and careful
inquiry into the facts and review whether the decision [of
the agency at the time it was made] was based on
consideration of the relevant factors and whether there has
been a clear error of judgment.” Id.
(alteration in original). “If the agency has followed
the proper procedures, and if there is a rational basis for
its decision, [the Court] will not disturb its
created the Council of Environmental Quality
(“CEQ”) within the Executive Office of the
President, granting it authority to issue regulations
effectuating NEPA. See 40 C.F.R. § 1500 et
seq. (CEQ regulations). CEQ regulations are mandatory
for all federal agencies, carry the force of law, and are
entitled to substantial deference. See Marsh v. Oregon
Nat. Res. Council, 490 U.S. 360, 372 (1989); Andrus
v. Sierra Club, 442 U.S. 347, 358 (1979). In addition to
the CEQ regulations, agencies are bound by whatever
regulations they promulgate under NEPA. See, e.g.,
33 C.F.R. § 230 et seq. (the Corps'
regulations for implementation of the procedural provisions
requires a federal agency to prepare an EIS before
undertaking “major Federal actions significantly
affecting the quality of the human environment.” 42
U.S.C. § 4332(C). To comply, an agency must first
decide whether a contemplated project qualifies as a
“major Federal action significantly affecting the
quality of the human environment.” See Id. CEQ
regulations instruct the agency to consider both the
“context” and “intensity” of the
action to determine if its environmental effects will be
“significant.” 40 C.F.R. § 1508.27(a)-(b).
determine whether an action will have a significant
environmental impact and thus require an EIS, an agency first
decides whether the action is one that normally does require
an EIS, or is categorically excluded from requiring an EIS.
40 C.F.R. § 1501.4(a). If the agency cannot readily
determine whether an action will significantly affect the
environment, then it must prepare an EA that discusses the
proposed action, alternatives, and the environmental impacts
of the proposed action and its alternatives. 40 C.F.R.
§§ 1501.4, 1508.9. An EA is a “concise public
document” that “provide[s] sufficient evidence
and analysis for determining whether to prepare an [EIS] or a
[FONSI].” 40 C.F.R. § 1508.9(a). The EA must
“include brief discussions of the need for the
proposal, of alternatives as required by section 102(2)(E),
of the environmental impacts of the proposed action and
alternatives, and a listing of agencies and persons
consulted.” 40 C.F.R. § 1508.9(b). If the EA
reveals that the project will have a significant effect on
the quality of the human environment, then the Corps must
prepare a detailed, written EIS. See 42 U.S.C §
4332(2)(C). If the Corps determines that its proposed action
will not have a significant effect on the environment, then
it need not prepare an EIS but may instead issue a FONSI. 40
C.F.R. § 1508.13. A FONSI “briefly presents the
reasons why the proposed agency action will not have a
significant impact on the human environment.” Pub.
Citizen, 541 U.S. at 757-58 (citing 40 C.F.R.
§§ 1501.4(e), 1508.13).
in NEPA and its implementing regulations is a ‘rule of
reason, ” which ensures that agencies determine whether
and to what extent to prepare an EIS based on the usefulness
of any new potential information to the decisionmaking
process.” Id. at 767 (citing Marsh,
490 U.S. at 373-74). “Where the preparation of an EIS
would serve ‘no purpose' in light of NEPA's
regulatory scheme as a whole, no rule of reason worthy of
that title would require an agency to prepare an EIS.”
agency's decision not to prepare an EIS can be set aside
only upon a showing that it was ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.'” Id. at 763 (quoting 5 U.S.C. §
706(2)(A)). Whether issuing an EA or an EIS, the agency's
hard look must “encompass a thorough investigation
into the environmental impacts of an agency's action and
a candid acknowledgment of the risks that those impacts
entail.” Nat'l Audubon, 422 F.3d at 185.
“Mere conclusions, unsupported by evidence or analysis,
that the proposed action will not have a significant effect
on the environment will not suffice to comply with
NEPA.” Friends of Congaree Swamp v. Fed. Highway
Admin., 786 F.Supp.2d 1054, 1062-63 (D.S.C. 2011).
However, if the agency has given the question the requisite
hard look, its “determination that a project will not
significantly impact the environment is entitled to
substantial deference.” Shenandoah
Ecosystems Def. Grp. v. U.S. Forest Serv., 194 F.3d
1305, 1999 WL 760226, at *7 (4th Cir. 1999) (unpublished
table decision) (emphasis added).
Clean Water Act
purpose of the CWA “is to restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters.” 33 U.S.C. § 1251(a). The CWA
prohibits the discharge of pollutants (such as dredged or
fill material) into navigable waters-including wetlands-of
the United States without a permit from the Corps.
See 33 U.S.C. §§ 1311(a), 1344, 1362(7);
33 C.F.R. § 328.3. See also S.C. Coastal
Conservation League v. U.S. Army Corps of Engineers, 789
F.3d 475, 478 (4th Cir. 2015) (“[T]he Clean Water Act
(CWA), 33 U.S.C. §§ 1251 through 1387, authorizes
the Corps, with oversight by the United States Environmental
Protection Agency (EPA), id. § 1344(c), to
issue permits for the discharge of fill material into the
waters of the United States, id. §
1344(a).”). Section 404 of the CWA authorizes the
Secretary of the Army, acting through the Corps, to regulate
discharges of dredged and fill material into wetlands through
the issuance of permits. See 33 U.S.C. § 1344.
In issuing permits, the Corps follows guidelines promulgated
by the EPA under section 404(b)(1) of the CWA and
incorporated by the Corps into its own regulations. See
Id. § 1344(b)(1); 40 C.F.R. pt. 230; 33 C.F.R.
§ 320.2(f). These guidelines prohibit discharges that
“will cause or contribute to significant degradation of
the waters of the United States.” 40 C.F.R. §
230.10(c). A discharge contributes to significant degradation
if it has “[s]ignificantly adverse effects” on
human health or welfare, on special aquatic sites,  aquatic
life, and other wildlife dependent on aquatic ecosystems, on
aquatic ecosystem diversity, productivity, and stability, or
on recreational, aesthetic, and economic values. Id.
the Corps may issue a Section 404 permit, it must determine
there is no “practicable alternative” to the
proposed activity “which would have less adverse impact
on the aquatic ecosystem.” 40 C.F.R. § 230.10(a).
A practicable alternative is one that “is available and
capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall
project purposes.” Id. § 230.10(a)(2).
When a project “is not ‘water dependent,
'” a presumption arises that there are
“practicable alternatives [available] that do not
involve special aquatic sites” and that “have
less adverse impact on the aquatic ecosystem, unless clearly
demonstrated otherwise.” Id. §
230.10(a)(3). A Section 404 applicant (e.g. Horry County)
must rebut this presumption if an alternative
involving the destruction of U.S. waters is chosen.
Id.; Guidelines for Specification of Disposal Sites
for Dredged or Fill Material, 45 Fed. Reg. 85, 336, 85, 339
(Dec. 24, 1980).
Court will conduct its analysis by applying the four factors
for a preliminary injunction set forth in Winter,
supra. The Court's primary focus is on the first
Winter factor: Plaintiffs' likelihood of success
on the merits.
Likelihood of Success on the Merits
Corps Took a Hard Look Under NEPA; and the Corps'
Preparation of an EA and Issuance of a FONSI and Its Decision
Not to Prepare an EIS Was Not Arbitrary, Capricious, or an
Abuse of Discretion
first argue the Corps failed to take a hard look at the
environmental impacts associated with the construction of
International Drive. Pls.' Mem. at 12-22. Specifically,
they contend the Corps failed to conduct any independent
analysis regarding the purpose and need for the project, the
environmental impacts of the project, or the existence of
alternatives. Id. at 13. Plaintiffs challenge the
Corps' decision to prepare only an EA, and they assert
the Corps should have prepared an EIS because the paving of
International Drive and the resulting loss of twenty-four
acres of wetlands (and property in the LOBHP) is a major
federal action significantly affecting the quality of the
human environment. Id. Plaintiffs further challenge
the adequacy of the EA, claiming that it consists of mere
conclusory statements and a regurgitation of various comments
and responses received by the Corps and that it lacks support
by way of independent scientific analysis, underlying data,
expert agency comments, or reference to any quantified or
detailed information. Id. at 15-19. Plaintiffs
maintain, “The entire decision document is plagued by .
. . unsupported conclusory statements found to be inadequate
and insufficient to meet NEPA's ‘hard look'
requirement.” Id. at 19.
overarching theme throughout Plaintiffs' brief is their
argument that the Corps failed to undertake an independent
investigation and erred in relying on Horry County's
submissions. See, e.g., id. at 8, 18-20,
23, 28-30. The Corps, however, is permitted to rely on
information, studies, and other submissions provided by
permit applicants and consultants so long as such submissions
are credible and critically evaluated by the Corps. See
Hoosier Envtl. Council v. U.S. Army Corps of Engineers,
722 F.3d 1053, 1061 (7th Cir. 2013); Hillsdale Envtl.
Loss Prevention, Inc. v. U.S. Army Corps of Engineers,
702 F.3d 1156, 1170-71 (10th Cir. 2012); Greater
Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1270 (10th
Cir. 2004); Van Abbema v. Fornell, 807 F.2d 633, 638
(7th Cir. 1986); Friends of the Earth v. Hintz, 800
F.2d 822, 834 (9th Cir. 1986). Thus, to the extent Plaintiffs
take issue with the Corps' reliance on Horry County's
submissions, the Court need not further consider this
the substantive environmental analysis in the EA, the Court
finds the Corps' conclusions and statements are supported
by the evidence in the record. The 133-page EA indicates the
Corps independently reviewed multiple scientific studies,
including a functional assessment of the wetlands done by
both the Corps and the County's consultant, a biological
assessment for the federally endangered red-cockaded
woodpecker, and a Grand Strand Area Transportation Study. EA
at 74-75, 77-78, 108-09. The EA indicates that the Corps
considered the project's environmental impacts on both
wetlands and wildlife including the woodpecker, coastal black
bear, and Venus flytrap, and that the Corps analyzed eleven
proposed alternatives (as well as a no action alternative)
and reasonably concluded none were practicable (as discussed
in more detail in the next section of this Order). EA at 1-2,
74-76, 84-92, 96-97. Significantly, the EA specifies the
Corps relied upon its own site visits to the wetlands and
onsite inspection of each wetland and reviewed a
functional assessment of the existing conditions of the
impacted wetlands in accordance with the Corps' own
Charleston District standard operating
procedures (“SOP”) for mitigation
purposes. EA at 1-2, 74, 78. The Corps
acknowledged that “[t]he discharge of dredged or fill
material in wetlands for this project will directly impact
approximately 24.19 acres of habitat and adversely affect the
biological productivity of the underlying wetland ecosystem,
” and that “[t]he impact to
over 24 acres of wetlands is recognized to be significant
when considering acreage alone.” EA at 96-97. However,
the Corps explained that “when viewing the larger
geographical area in which the impacts are proposed, the
wetlands are a portion of a vast, interconnected system,
” and concluded that “although there are impacts
to a large amount of wetlands, the impacts are not considered
significant.” EA at 97. In reaching this conclusion,
the Court paid particular attention to the fact that
“the impacts located within the project area are to
wetlands that are mostly considered impaired with limited
function (approximately 2/3 has [sic] been
identified as impaired).” EA at 97.
the Corps engaged in a lengthy discussion of the compensatory
mitigation for the environmental impact of the project. EA at
77-84, 112-27; see generally 33 C.F.R. pt. 332
(compensatory mitigation standards and criteria jointly
developed by the EPA and the Corps); 40 C.F.R. §§
230.91-98 (same). The Corps determined, based upon its own
onsite functional assessment of each wetland, that two-thirds
of the approximately twenty-four acres were either
“impaired” or “partially impaired” in
accordance with the Charleston District Mitigation SOP. EA at
1-2, 78-80. The Corps noted various agencies and public
entities (including the USFWS, SCDNR, NMFS, the Coastal
Conservation League, and the South Carolina Environmental Law
Project), as well as the Corps itself, expressed concerns
with Horry County's initial proposed mitigation plan,
noting the initial plan “lacked adequate baseline data
to support the applicant's proposal that
enhancement/restoration to hydrology would occur throughout
the site as proposed.” EA at 77. After several site
visits and meetings with the Corps, the County withdrew its
initial compensatory mitigation plan and submitted-after the
Corps forwarded the concerns to the County-a revised
mitigation plan, which the Corps ultimately approved and
found “adequately compensated for impacts to aquatic
resources.” EA at 77, 80, 113-26. The Corps conducted
an onsite meeting with Horry County's mitigation agent on
January 30, 2015, and inspected each wetland to be impacted
by the construction project. EA at 1-2, 78. The Corps
concluded the County's revised mitigation calculation
“adhere[d] to the methodology outlined [in] the
Charleston District Mitigation SOP.” EA at 78. The EA
details Horry County's revised mitigation plan, which
requires the County to complete the mitigation at Bass Lake
Tract III. EA at 113-26; see AR at 817-88
(mitigation plan). Significantly, the Section 404 permit
requires the County to adhere to and complete the
compensatory mitigation plan. AR at 1500.
the EA contains a review and discussion of the potential
impact on wildlife within the LOBHP. EA at 74-77, 94-96;
see generally 40 C.F.R. § 1508.27(b)(3) (an
intensity factor requiring consideration of “[u]nique
characteristics of the geographic area such as proximity to .
. . wetlands . . . or ecologically critical areas”).
First, per the recommendation of the USFWS, Horry County
obtained a biological assessment for the federally endangered
red-cockaded woodpecker and submitted it to the USFWS for
review. EA at 74-75; see AR at 509-19 (biological
assessment). The USFWS ultimately sent the Corps a letter
concurring with the Corps' determination that the road