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Coastal Conservation League v. United States Army Corps of Engineers

United States District Court, D. South Carolina, Florence Division

November 18, 2016

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.

          ORDER DENYING PRELIMINARY INJUNCTION

          R. BRYAN HARWELL, UNITED STATES DISTRICT JUDGE

         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. 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.

         Introduction

         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 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.

         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). “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.

         Background

         On November 26, 2013, Horry County submitted a Section 404 permit application[2] 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 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.

         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 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”).[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, 786-816, 820-88, 919-46, 947-1084, 1379-98, 1407-20.

         On July 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[5] 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.[6] 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, [7] and filed the instant motion for a preliminary injunction on September 14, 2016.[8] ECF Nos. 1 & 6.

         Preliminary Injunction Standard

         Federal 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.

         A 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.

         Summary of Arguments

         Plaintiffs 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].

         In 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.

         In its 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.

         Discussion

         I. Applicable Law

         A. Administrative Procedures Act

         Both 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).

         An 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).

         Generally, 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).

         B. National Environmental Policy Act

         NEPA “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).

         When 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.

         Second, 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 judgment.” Id.

         NEPA 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 of NEPA).

         NEPA 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).[9] 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.”[10] 40 C.F.R. § 1508.27(a)-(b).

         To 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), [11] 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).

         “[I]nherent 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.” Id.

         “An 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).

         C. Clean Water Act

         The 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, [12] aquatic life, and other wildlife dependent on aquatic ecosystems, on aquatic ecosystem diversity, productivity, and stability, or on recreational, aesthetic, and economic values. Id.

         Before 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).

         II. Analysis

         The 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.

         A. Likelihood of Success on the Merits[13]

         1. The 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

         Plaintiffs 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.

         An 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 argument.

         As for 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.[14] 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, ”[15] 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.

         Moreover, 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.

         Furthermore, 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 ...


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