Justice Department Successfully Defends Army Corps of Engineers Permit for South Carolina Mixed Use Development

Development projects may require a Clean Water Act (CWA) permit when wetlands need to be filled. Thus, developers of the Cainhoy Project — a more than 9,000-acre mixed use development in the Charleston, South Carolina — turned to the U.S. Army Corps of Engineers in 2018 for a CWA permit.

The Cainhoy Project will provide much needed housing (at least 9,000 residential units) in addition to commercial development, schools, city services, jobs, a medical center, and more. After a four-year environmental assessment — and a modified proposal by the developers to reduce by 90% how much wetlands would be filled — the Corps issued a permit. A lawsuit over the permit’s issuance brought the case before the U.S. District Court for the District of South Carolina and  the U.S. Court of Appeals for the Fourth Circuit.

The Justice Department’s Environment and Natural Resources Division (ENRD) defended the Corps’ decision to issue a permit. Plaintiffs asked for a preliminary injunction based on speculative harm to a species under the Endangered Species Act (ESA). The injunction was denied, however, and the ESA claim was abandoned after the Fourth Circuit affirmed the District Court’s order denying preliminary relief.

The District Court then granted summary judgment to the federal defendants regarding the CWA and National Environmental Policy Act claims. The court concluded that the Corps had reasonably determined the least damaging and practicable alternative for the proposed development. And in light of the Corps’ extensive consideration of the project, the District Court deferred to the Corps’ determination that the project would not lead to significant deterioration of waters of the United States, as ENRD had argued.

Attorneys from ENRD’s Environmental Defense Section, Natural Resources Section, and Wildlife and Marine Resources Section handled the case.