Fight over International Drive paving project moves to federal court

Fight over International Drive paving project moves to federal court

HORRY COUNTY, SC (WMBF) - The fight over the paving of International Drive is now moving to federal court as it also proceeds through the state system.

Even though a South Carolina Administrative Law Court judge recently ruled in favor of the project, and construction started, conservation groups continue to say the road will harm the environment, and have filed a lawsuit in federal court in an attempt to block the project from moving forward.

The Coastal Conservation League and the South Carolina Wildlife Federation filed a lawsuit against Horry County, the U.S. Army Corps of Engineers and the Environmental Protection Agency in federal court.

Nancy Cave, of the Coastal Conservation League, said Horry County did not follow the National Environmental Policy Act, or NEPA.

The lawsuit contends the Army Corps of Engineers took action that is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law."

Cave said the environmental evaluation of the project, called an environmental assessment, the county submitted with its permit was not as rigorous as it should've been for the project under NEPA requirements, and the Army Corps of Engineers didn't follow NEPA by granting the permit.

Cave said the environmentally sensitive nature and scale of the project should've required the county to submit an environmental impact statement, which requires a public review process, an agency review process and a more thorough analysis of cumulative impacts and alternatives, as compared to an environmental assessment.

The lawsuit said the environmental assessment failed to fully and fairly discuss the indirect effects of the project, and specifically the ten curb cuts that would be installed along the road to provide access to the adjacent properties, thereby opening up significant acreage for development.

Under NEPA, the lawsuit said the county was required to prepare an environmental impact statement that thoroughly examines the project's environmental and social impacts, and rigorously explores and objectively evaluates reasonable alternatives to project. The lawsuit argues that the environmental assessment that was completed fails these requirements, is incomplete, and presents a misleading portrait of the project's impacts, both positive and negatives. It also provides only a slight and empty analysis of alternatives to the paving of International Drive, the suit states.

The suit alleges that the Corps cut-and-pasted various objection letters from resources agencies, including the CCL and the SCWF, and the public, and the county's responses to them, instead of doing an independent analysis, taking the county's statements at face value.

The Corps didn't require an explanation for the need for ten curb cuts when there were two private landowners, and the Corps failed to consider the impacts of development and increased congestion that the project seeks to address, the lawsuit contends. The lawsuit argues that the Corps used circular reasoning by asserting that they need a new road to address congestion, but then the new road will induce development, creating more congestion. This doesn't meet the requirement for a hard look at the cumulative and secondary impacts, it said.

The lawsuit also alleges that the Corps didn't address the United States Fish and Wildlife Service's concern to minimize the impacts by reducing the road to two lanes, eliminate the curb cuts, and incorporate wildlife crossings, and instead used the county's response, saying it took all concerns into account.

The Corps made a finding that the project would not have a significant impact, but they had received comments from expert state and federal agencies explaining why it would have impacts. The Corps failed to explain its disagreement with those comments in its findings, the lawsuit said.

According to the suit, the International Drive paving project also includes the fill and destruction of 24 acres of wetlands within and next to the Lewis Ocean Bay Heritage Preserve, and then conversion of 20 acres of preserve into road bed and right-of-way.

The lawsuit asserts that the proposed work will cause significant injury to the wetlands, wildlife, and their habitats, violating the requirements of NEPA by failing to prepare, circulate for public comment, and consider a detailed environmental impact statement in the decision-making process.

The Corps violated its own provision because this project will eliminate wetlands and state-designated heritage trust lands, fragment the wildlife habitat, degrade water quality and wetlands, and put wildlife and humans at risk of vehicular collisions, the lawsuit argued. The Corps' approval of the project further violates permitting guidelines.

The project will result in degradation and destruction of a special aquatic site, the lawsuit alleges. The Corps' public interest review was also deficient for failing to address the loss of, and significant impacts to, the state heritage preserve and its resources.

Because the EPA administrator can veto a permit when they see it will have an unacceptable adverse effect on the environment, the EPA erred in failing to veto the permit, despite evidence from the US Fish and Wildlife Service that the project would have significant adverse effects on wildlife, water quality, and the wetlands, the lawsuit said.

The lawsuit said the EPA then didn't take any action to override the Army Corps of Engineer's decision.

The plaintiffs in the lawsuit want the court to declare the Corps' decision to grant the Clear Water Act permit to Horry County an error of judgment, saying that Horry County violated law by beginning construction activity under that permit, and the EPA and the Corps failed to perform their duty under the Clean Water Act to regulate the dredging and filling of waters in the United States. The suit also said the Corps violated NEPA by not preparing an environmental impact statement, and preparing an inadequate environmental assessment.

The lawsuit also asks for the court to issue an injunction requiring Horry County to pause construction, and also repair damage done under permits that were issued illegally. The suit also seeks to award the plaintiffs costs and expenses for their legal actions.

Lisa Bourcier, spokesperson for Horry County, issued the following statement: "There was a potential that a federal court action could be filed to stop us from paving the road, but that was a risk we were willing to take when we began activities on International Drive last month. Their recent federal filing was not a surprise. We have the money in the bank and all the required permits for this project."

Felicia Soto, with the Citizens for the Immediate Paving of International Drive said the lawsuit is no surprise. "No means no," she said, adding that the conservation groups brought this to administrative law court and lost. She said the groups don't want to take no for what it really means, so they keep taking it to the next level. Soto pledged to "continue to fight this until it's done."

Cave said everyone is doing what is within their legal rights to do, both on the Horry County side and her side. She said they are following the legal process, so when proponents of International Drive criticize the conservation groups in the media, the criticism is not accurate, because they are following the legal process that is available to everyone, and is for everyone. Cave said they are not doing anything illegal, or immoral, or whatever the critics might say.

Cave said they decided to continue with legal action before the construction started. When the judge ruled in favor of Horry County and in favor of the permit, than the automatic stay was lifted, so Horry County had the right to start doing that they could do, even though they knew there was a possibility they could be stopped.

The request for the stay to pause construction is still up for decision in the administrative law court, where the judge said yes to the permits. Cave said a hearing on that is scheduled for Thursday, September 15.

The appeal of the administrative law court decision is still moving forward as well in the South Carolina Court of Appeals. The federal lawsuit doesn't change any of that, Cave said, because they are on two separate legal tracks.

Click here to read the complete 207-page lawsuit. Warning: This is a large (12mb) PDF file.

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