Coastal Conservation League et al v. United States Army Corps of Engineers Charleston District et al

Filing 53

ORDER: The Court finds Plaintiffs have not met their burden under the Winter factors and therefore DENIES Plaintiffs' Motion for Preliminary Injunction [ECF No. 6 ] because Plaintiffs have not satisfied all the requirements necessary to receive preliminary injunctive relief. The Court hereby DISSOLVES the consent temporary restraining order previously in effect [ECF No. 23 ]. Signed by the Honorable R. Bryan Harwell on 11/18/2016. (hcic, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Coastal Conservation League and
South Carolina Wildlife Federation,

)
)
)
Plaintiffs,
)
)
v.
)
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United States Army Corps of Engineers,
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Charleston District; Lt. General Todd T.
)
Semonite, in his official capacity as Chief
)
of Engineers, U.S. Army Corps of Engineers;
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Lt. Colonel Matthew Luzzatto, in his official
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capacity as District Engineer, U.S. Army Corps
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of Engineers, Charleston District; United States
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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,
)
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Defendants.
)
__________________________________________)

Civil Action No.: 4:16-cv-03008-RBH

ORDER DENYING
PRELIMINARY INJUNCTION

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

1

Plaintiffs and Horry County previously consented to the entry of a temporary restraining order (“TRO”)
limiting certain construction activities by the County. See ECF No. 23 (filed September 23, 2016). Plaintiffs
subsequently filed a motion seeking to hold the County in contempt for allegedly violating the consent TRO. See

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

ECF No. 35 (filed October 6, 2016). The Court heard the motion for contempt at the October 28 hearing, took it
under advisement, and asked that Plaintiffs and the County try to reach an agreement in the meantime as to what
additional construction activities the County could undertake consistent with the consent TRO. Following the
hearing, the Court received letters from counsel for Plaintiffs and counsel for the County indicating that the County
agreed to protect five areas in the project right of way from further disturbance. See ECF No. 49 (filed November
8, 2016).

2

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

3

On November 26, 2013, Horry County submitted a Section 404 permit application2 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

2

Horry County’s permit application and other submissions to the Corps were prepared by the County’s
consultant/agent, The Brigman Company, Inc. See AR at 119.

3

The June 2013 contract modified the terms of an earlier agreement signed in 2010. Compare AR at 623-40
(2013 contract), with AR at 690-99 (2010 contract). The 2010 contract required Horry County to construct three
wildlife passages under the roadway, along with special fencing to channel animals to and through the passages. AR
at 692, 698-99. This requirement was eliminated in the 2013 contract. See AR at 628-29.

4

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
5

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, 9471084, 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

4

The Brigman Company, Inc. prepared the original mitigation plan, and Red Bay Environmental prepared
the revised mitigation plan. Compare AR at 164, with AR at 610. Red Bay subsequently provided additional
information regarding the revised mitigation plan. AR at 817-88.

6

fill material complied with the section 404(b)(1) guidelines of the CWA (“the 404(b)(1) Guidelines”).
EA5 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
5

The Environmental Assessment is located at pages 1358-1490 of the Administrative Record. The Court will
cite it as “EA” followed by the original page number provided in the EA.

6

The total impact to 24.19 acres of wetlands is broken down as follows: filling of approximately 19.58 acres,
mechanized land clearing of 0.26 acres, and excavation of 4.35 acres. EA at 4, 96. A total impact area of 19.48 acres
is located within the LOBHP; the 19.48 acres consists of 7.07 acres of freshwater wetlands and 12.41 acres of
uplands. EA at 96.

7

On July 7 and 26, 2016, the South Carolina Administrative Law Court (“ALC”) issued orders upholding
the South Carolina Department of Health and Environmental Control’s certifications for the project pursuant to
section 401 of the CW A and the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10, et seq.
See AR at 1292-1353; Pls.’ Mem. [ECF No. 6-1] at 7. Plaintiffs have appealed the state ALC’s order to the South
Carolina Court of Appeals. Pls.’ Mem. at 7.

8

Plaintiffs subsequently filed a motion for a TRO on September 21, 2016. See ECF No. 16. As noted above,
Plaintiffs and Horry County consented to the entry of a TRO limiting certain construction activities by the County.
See ECF No. 23. Plaintiffs have filed a motion seeking to hold the County in contempt for allegedly violating the
consent TRO. See ECF No. 35. The Court rules on the motion for contempt in a separate order.

7

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
8

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
9

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
10

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
11

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.
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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

9

In full, NEPA provides:
[A]ll agencies of the Federal Government shall . . . include in every
recommendation or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment, a detailed
statement by the responsible official on—(i) the environmental impact of the
proposed action, (ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented, (iii) alternatives to the proposed action, (iv)
the relationship between local short-term uses of man’s environment and the
maintenance and enhancement of long-term productivity, and (v) any irreversible
and irretrievable commitments of resources which would be involved in the
proposed action should it be implemented.

13

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

42 U.S.C. § 4332(C). This “detailed statement” is an EIS. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757
(2004).
10

Context “means that the significance of an action must be analyzed in several contexts such as society as
a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the
setting of the proposed action.” 40 C.F.R. § 1508.27(a). Intensity “refers to the severity of impact” and requires
consideration of the following ten factors:
(1)

(2)
(3)

(4)
(5)
(6)

(7)

(8)

(9)

(10)

Impacts that may be both beneficial and adverse. A significant effect may
exist even if the Federal agency believes that on balance the effect will be
beneficial.
The degree to which the proposed action affects public health or safety.
Unique characteristics of the geographic area such as proximity to historic
or cultural resources, park lands, prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical areas.
The degree to which the effects on the quality of the human environment
are likely to be highly controversial.
The degree to which the possible effects on the human environment are
highly uncertain or involve unique or unknown risks.
The degree to which the action may establish a precedent for future actions
with significant effects or represents a decision in principle about a future
consideration.
W hether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance exists if
it is reasonable to anticipate a cumulatively significant impact on the
environment. Significance cannot be avoided by terming an action
temporary or by breaking it down into small component parts.
The degree to which the action may adversely affect districts, sites,
highways, structures, or objects listed in or eligible for listing in the
National Register of Historic Places or may cause loss or destruction of
significant scientific, cultural, or historical resources.
The degree to which the action may adversely affect an endangered or
threatened species or its habitat that has been determined to be critical
under the Endangered Species Act of 1973.
W hether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment.

40 C.F.R. § 1508.27(b). See also Friends of Back Bay v. U.S. Army Corps of Engineers, 681 F.3d 581, 589-90 (4th
Cir. 2012) (discussing the context and intensity criteria).

14

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.

11

Section 102(2)(E), which is codified at 42 U.S.C. § 4332(2)(E), requires an agency to “study, develop, and
describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources.”

15

“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
16

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

12

Special aquatic sites “are geographic areas, large or small, possessing special ecological characteristics of
productivity, habitat, wildlife protection, or other important and easily disrupted ecological values.” 40 C.F.R.
§ 230.3(m). W etlands are classified as special aquatic sites. Id. § 230.41.

17

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 Merits13
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

13

In analyzing Plaintiffs’ likelihood to succeed on the merits, the Court is simply applying the first Winter
factor and analyzing whether Plaintiffs are entitled to preliminary injunctive relief.

18

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

19

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

14

To the extent Plaintiffs contend the Corps did not independently analyze these wetlands, that contention is
not supported by the record. The EA specifies the Corps independently visited and inspected each wetland and made
an independent determination of their functionality in accordance with the Corps’ own SOP:
The Corps initially determined that the existing conditions of wetlands 1 through
23 were considered fully functional and the remaining wetlands onsite were
determined to be partially impaired based on review of 2006 and 2012 aerial
photography. A site visit was performed by the Corps on January 30, 2015, to
evaluate the existing condition of the proposed impact areas used for calculating
the required compensatory mitigation. The applicant’s agent performed a
functional assessment of the impact areas during April 2014, which was submitted
to the Corps in the applicant’s response dated December 18, 2014. The Corps met
onsite with the applicant’s agent to review their findings of individual wetland
impact areas. During this onsite inspection each wetland was reviewed onsite
and assigned an existing condition of either Fully functional, Partially im paired,
or Impaired based on the definitions of each classification outlined in the
Charleston District M itigation SOP. The Corps’ findings and determinations are
documented in Section 1.3 of this document [EA at 1-2]. In response to the site
visit of January 30, 2015, and the Corps’ determination of the existing conditions,
the applicant submitted revised mitigation calculation sheets that accurately reflect
the existing conditions as determ ined by the Corps; therefore, the Corps has
determined that this concern has been addressed and the calculations adhere to the
methodology outlined [in] the Charleston District Mitigation SOP.
EA at 78 (emphases added); see also EA at 1-2 (Section 1.3 containing the Corps’ findings and determinations
regarding functionality of each wetland). The Corps documented its January 30, 2015 visit with dozens of
photographs of the wetlands. AR at 704-82.

15

The Corps specified, “Potential impacts of the fill may result in smothering, or altering substrate elevation
or periodicity of water movement. The addition of fill material will destroy wetland vegetation or result in
advancement of succession to dry land species, specifically on the road shoulders.” EA at 97.

20

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
21

(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
construction project was not likely to adversely affect resources under the USFWS’s jurisdiction and
protected by the Endangered Species Act (including the woodpecker in question). AR at 521-22.
Second, the Corps relied on the existence of the 2013 contract between Horry County and the
SCDNR. EA at 75-76; AR at 623-40 (2013 contract). The Corps noted this contract contains measures
addressing potential impacts to wildlife overseen by the SCDNR and located on the LOBHP. EA at 7576, 96. Specifically, the contract: (1) recognizes LOBHP is home to the red-cockaded woodpecker and
requires Horry County to consult with the USFWS and ensure compliance with the Endangered Species
Act; (2) prescribes periodic burning to ensure habitat survival of “the flora and fauna at LOBHP”
including the woodpecker and Venus flytrap; (3) requires the County to construct and maintain fences
along both sides of the road to impede black bears from entering the highway; and (4) restricts the speed
limit of International Drive to a maximum of forty-five miles per hour. AR at 627-29. Regarding the
LOBHP, the Corps noted the conditions required of Horry County in the 2013 contract mitigated any
impacts that the project may have on the LOBHP. EA at 96, 99. Specifically, the Corps found
22

With the SCDNR Contract signed by Horry County (applicant), and
SCDNR (LOBHP Manager) any impacts that the project may impose
on LOBHP have been mitigated for by the included conditions within
the signed SCDNR Contract. Therefore, the proposed discharge will
have an impact on the LOBHP; however, the impacts will not be
significant.
EA at 96. The Corps stated in the EA that Horry County’s compliance with the 2013 contract would
be a special condition of the Section 404 permit; and the Section 404 permit does in fact require Horry
County to adhere to its contract with the SCDNR and coordinate with the Corps for “[a]ny future
amendments to the SCDNR contract.” EA at 76; AR at 1500 (Section 404 permit). Thus, the Corps
addressed the potential environmental impacts on wildlife protected under federal law and wildlife
under the jurisdiction of the SCDNR, a state wildlife agency that agreed to grant Horry County a rightof-way easement for highway purposes in the LOBHP that is held in trust by the SCDNR. The Corps
acted reasonably in recognizing the SCDNR is the agency that manages the LOBHP and is best suited
to make the appropriate decisions regarding the protection of wildlife. See EA at 76, 96. Importantly,
the Corps is able to police Horry County’s compliance with both the 2013 contract and the mitigation
plan because such compliance is a mandatory condition of the Section 404 permit. AR at 1500; see 33
C.F.R. § 325.4 (permitting the Corps’ district engineer to add special conditions to permits); Friends
of Back Bay v. U.S. Army Corps of Engineers, 681 F.3d 581, 589 (4th Cir. 2012) (“Measures designed
to render minimal a particular action’s impact upon the environment, whether proposed in mitigation
or assumed to already exist, are more readily deemed efficacious (and thus more comfortably within
an agency’s broad prerogative to propose or assume) when they are likely to be policed. Such policing
may occur prospectively by administrative enforcement through the imposition of a mandatory permit
condition . . . .” (internal citation and quotation marks omitted) (emphasis added)).

23

Regarding Plaintiffs’ criticism of the Corps’ reprinting of the comments received and Horry
County’s responses to the comments, such criticism is misplaced when the EA is considered as a whole.
The reprinting of the comments and responses actually supports a finding that the Corps took a
sufficient hard look at the environmental impact of the project. See Hughes River, 165 F.3d at 288-89
(stating “an 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”; and “conclud[ing] that the Agencies took a sufficient ‘hard look’ at the issue”
because “[t]he record reflects that the Agencies carefully considered and responded to these
comments”). While the comments and responses appear verbatim at the beginning of the EA, they are
followed by the Corps’ own substantive discussion of the issues presented in those comments and
responses. EA at 7-92, 103-12, 114. The Corps complied with the requirements of NEPA by quoting
the comments/responses and addressing them in substantial detail. See, e.g., Roanoke River Basin Ass’n
v. Hudson, 940 F.2d 58, 63 (4th Cir. 1991) (finding the Corps complied with NEPA because it
adequately considered comments received).
In their motion, Plaintiffs raised a general argument regarding the Corps’ alleged failure to
consider environmental concerns identified by the Corps’ sister agencies, the USFWS and the NMFS.16

16

Plaintiffs also cite concerns that the USFW S expressed in a letter dated February 11, 2014. Pls.’ M em. at
18-19, 29; see AR at 486-88 (letter). In that letter, the USFW S made several recommendations “[t]o avoid and/or
minimize impacts to fish and wildlife resources,” requested the biological assessment of the red-cockaded
woodpecker, and requested the project “be held in abeyance until the above-described concerns have been adequately
addressed and the requested [biological assessment] is completed and reviewed by the Service.” AR at 487-88.
However, in three subsequent letters following Horry County’s response to the agencies’ (including the USFW S’s)
and public’s concerns and submission of the biological assessment, the USFW S unambiguously stated, “Based on
the information provided, the Service concurs with your [the Corps’] determ ination that the above-referenced
project is not likely to adversely affect resources under the jurisdiction of the Service that are currently protected
by the ESA [Endangered Species Act], including the RCW [red-cockaded woodpecker]. Therefore, the
requirem ents of section 7 of the ESA have been fulfilled relative to the proposed action, and no further
consultation is necessary at this tim e.” EA at 520-22, 889-90, 1276-77.

24

Pls.’ Mem. at 6. At the hearing, the Court asked Plaintiffs and the Federal Defendants to elaborate on
an issue relating to both mitigation and one of the ten intensity factors set forth in 40 C.F.R.
§ 1508.27(b): “[t]he degree to which the effects on the quality of the human environment are likely to
be highly controversial.”17 40 C.F.R. § 1508.27(b)(4); see supra at footnote ten of this Order (quoting
the ten intensity factors). The EA indicates that after the public comment period ended, the USFWS
and NMFS, as well as the SCDNR, still had concerns with Horry County’s revised compensatory
mitigation plan for Bass Lake Tract III.18 EA at 77-82. These “commenting agencies specifically stated
that the number of mitigation credits required for the proposed impacts have been underestimated,”
expressed concerns that Horry County’s proposed mitigation “is not located within the affected
watershed to the maximum extent possible,”19 and disagreed with the priority category—“primary”

17

The Court also requested the Federal Defendants to provide a list of citations supporting their position that
the requirement of compensatory mitigation “is reserved to the Corps.” ECF No. 47 at 1. Following the hearing,
both the Federal Defendants and Plaintiffs provided a list of supplemental citations, which the Court has thoroughly
considered and reviewed. See ECF Nos. 47 & 48.

18

In its initial comment letter, the USFW S expressed concern with the amount of compensatory mitigation
credits. AR at 488. Similarly, the NMFS commented that the mitigation of Bass Lake “Tract III may generate
preservation credit to be used towards offsetting the loss of wetlands but does not adequately compensate for those
losses by itself,” AR at 703, and the SCDNR stated in its final comment that “we continue to recommend that a
Priority Category of Primary be used for all impact areas. W e recommend the required mitigation calculations be
revised accordingly.” AR at 783.

19

The Coastal Conservation League likewise expressed concern with the fact that the mitigation would occur
in a different watershed, see EA at 80, and Plaintiffs reiterate this argument in support of their position regarding the
likelihood of irreparable harm. See Pls.’ Reply at 24-25 (“[T]he ‘mitigation’ is occurring outside of the impacted
watershed in Georgetown County and cannot possibly offset impacts to wetlands within LOB and the project area.”).
Additionally, in their complaint, Plaintiffs allege, “The Corps erred by failing to consider the objections of sister
agencies and the public. See 33 C.F.R. § 332.8(b)(2), (4).” Compl. at ¶ 77.
The EPA and the Corps have jointly developed regulations addressing compensatory mitigation for the loss
of aquatic resources. See 33 C.F.R. § 332.3(a)(1) (“The fundamental objective of compensatory mitigation is to
offset environmental losses resulting from unavoidable impacts to waters of the United States authorized by DA
[Department of the Army] permits. The district engineer must determine the compensatory mitigation to be required
in a DA permit, based on what is practicable and capable of compensating for the aquatic resource functions that will
be lost as a result of the permitted activity. W hen evaluating compensatory mitigation options, the district engineer
will consider what would be environmentally preferable. In making this determination, the district engineer must
assess the likelihood for ecological success and sustainability, the location of the compensation site relative to the
impact site and their significance within the watershed, and the costs of the compensatory mitigation project.”

25

versus “tertiary”20—used to calculate the required compensatory mitigation. Id. At first blush, the
agencies’ concerns may seem to implicate the “highly controversial” intensity factor set forth in 40
C.F.R. § 1508.27(b)(4). However, although the agencies disagreed with the mitigation calculations, the
Corps, as discussed in more detail above, conducted an onsite assessment of the wetlands and followed
its own SOP to calculate the functionality, priority categories, and mitigation credits for the wetlands.
EA at 79-80. Additionally, it is significant to note that none of the three agencies outright opposed
Horry County’s permit application or even asked that an EIS be performed. Contra Friends of Back
Bay, 681 F.3d at 590 (finding a project’s environmental impact was highly controversial because “no
fewer than four respected governmental entities (including two of the Corps’s sister agencies of the
federal government) unanimously opposed the permit application as proposed,” and because “[t]he FWS
specifically recommended preparation of an EIS as an alternative to denying the permit”). Even when
other agencies disagree as to whether an EIS should be performed, such disagreement alone is
insufficient to require an EIS. See Roanoke River, 940 F.2d at 64 (“[T]wo federal agencies, the Fish
and Wildlife Service and the National Marine Fisheries Service, believed that the [environmental
impact] is sufficiently uncertain that an EIS should be conducted. Appellants argue that the fact that
disinterested federal agencies request an EIS is proof that the effect is ‘controversial,’ so that the Corps
abused its discretion in refusing to commission an EIS. However, the existence of a disagreement as

(emphasis added)); 40 C.F.R. § 230.93(a)(1) (same); 33 C.F.R. § 332.8(b) (requiring the district engineer to “give
full consideration to any timely comments and advice of the” Interagency Review Team, which may include federal
and state agencies such as the USFW S, NMFS, and SCDNR); 40 C.F.R. § 230.98(b) (same).
20

The “primary” priority category requires a factor of 2.0 for mitigation credit calculation, whereas the
“tertiary” category requires a factor of 0.5. EA at 78. In accordance with the Charleston District Mitigation SOP,
the Corps determined that the “primary” category would be used for mitigation calculations associated with impacts
to wetlands located within the LOBHP and that the “tertiary” category would be used for the remaining wetlands not
located within the LOBHP. EA at 79.

26

to whether an EIS should be commissioned is not by itself grounds for a court to require an EIS. Rucker
v. Willis, 484 F.2d 158, 162 (4th Cir. 1973). The Corps of Engineers should consider the comments of
other agencies, but it need not defer to them when it disagrees.” (emphasis added)). Here, there was
not even a request by the Corps’ sister agencies for an EIS, and their disagreement was limited to the
Corps’ conclusions regarding mitigation calculations and credits.
In summary, the EA shows the Corps examined the practicability of alternatives, considered
environmental impacts on water, wetlands, and wildlife, evaluated proposed mitigation, and considered
comments and responses of other agencies and the public. See Nat’l Audubon, 422 F.3d at 185 (“[A]
‘hard look’ . . . encompasses a thorough investigation into the environmental impacts of an agency’s
action and a candid acknowledgment of the risks that those impacts entail.”). Accordingly, at this stage
of litigation and for the limited purpose of ruling on Plaintiffs’ preliminary injunction motion, the Court
finds that the Corps took a sufficient hard look at the project’s environmental impact and that its
decision not to prepare an EIS was reasonable and warrants deference.
Moreover, the Court finds the Corps’ preparation of the EA and issuance of the FONSI and its
decision not to prepare an EIS were not “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). See also Pub. Citizen, 541 U.S. at 763; Hodges, 300
F.3d at 445.
2.

The Corps’ Issuance of the Section 404 Permit Was Not Arbitrary and
Capricious

Plaintiffs next argue the Federal Defendants failed to properly assess this project under section
404(b) of the CWA, and that such failure constitutes an arbitrary and capricious agency decision in
violation of the APA. Pls.’ Mem. at 6, 22-31. Plaintiffs contend the Corps’ 404(b)(1) analysis is flawed
27

because there are practicable alternatives to the project and such alternatives are presumed where special
aquatic habitats will be impacted in the wetlands affected by the road. Id. at 23-31.
a.

Practicable Alternatives Analysis

The 404(b)(1) Guidelines of the CWA provide that “no discharge of dredged or fill material
shall be permitted if there is a practicable alternative to the proposed discharge which would have less
adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant
adverse environmental consequences.” 40 C.F.R. § 230.10(a). This requirement is commonly known
as identifying the “least environmentally damaging practicable alternative.” See Hoosier Envtl. Council,
722 F.3d at 1061 (“The duty of the Corps is ‘to determine the feasibility of the least environmentally
damaging alternatives that serve the basic project purpose.’” (quoting Utahns for Better Transp. v. U.S.
Dep’t of Transp., 305 F.3d 1152, 1188 (10th Cir. 2002))). 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.” 40 C.F.R. § 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); 40 C.F.R. § 230.5. A Section 404 applicant must rebut
this presumption if an alternative involving the destruction of United States waters is chosen. See id.
§ 230.10(a)(3); Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 45 Fed. Reg.
85,336, 85,339 (Dec. 24, 1980). The parties do not dispute that the International Drive project is not
water dependent, see EA at 4, so the rebuttable presumption of § 230.10(a)(3) applies in this case.
The Corps determined that the project is not water dependent and that the wetlands at issue, as
well as the LOBHP, qualify as special aquatic sites. EA at 4, 86, 96-97; see 40 C.F.R. §§ 230.3(m),
28

230.41. Because the project is not water dependent, Horry County was required under the CWA to
clearly rebut the presumption that a less environmentally damaging practicable alternative to the project
exists. See 40 C.F.R. § 230.10(a)(3). Consequently, if Plaintiffs can establish Horry County did not
clearly rebut this presumption but the Corps nonetheless issued the Section 404 permit, Plaintiffs can
prove the Corps acted arbitrarily and capriciously, or otherwise not in accordance with law. See 5
U.S.C. § 706(2)(A).
Plaintiffs assert the Corps concluded “[w]ithout any explanation or rationale” that “‘expanding
and improving the road cannot occur without impacting special aquatic sites (i.e., wetlands)’ and that
‘a practicable alternative that does not involve any impacts to special aquatic sites is not available.’”
Pls.’ Mem. at 26 (quoting EA at 86). Plaintiffs contend the Corps’ conclusion is directly contrary to
40 C.F.R. § 230.10(a)(3). Id. The Court disagrees, and for purposes of ruling on Plaintiffs’ motion,
finds otherwise.
In the EA, the Corps defined the overall project purpose as follows:
The purpose of the re-alignment/paving/expansion of International
Drive is to relieve current and anticipated congestion for
local/transient commuters within the Carolina Forest Community, to
provide a secondary evacuation route for the residents of the Carolina
Forest Community, and to provide a direct link between S.C. 90, S.C.
31 and Carolina Forest Boulevard. In addition to servicing the
residents of the Carolina Forest Community, the proposed realignment/paving will provide an additional option to
residents/commuters within the Myrtle Beach Community, as well as
a large workforce along the Highway 90 corridor, through its direct
connectivity to Robert M. Grissom Parkway.
EA at 4, 84-85. In reaching this definition, the Corps stated it “independently reviewed the Grand

29

Strand Area Transportation Study[21] . . . as well as other information provided by” Horry County. EA
at 4, 84. The Transportation Study evaluated traffic patterns and projected future traffic volumes for
the Horry County area.22 See AR at 919-46, 947-1084. The Court finds the Corps articulated a rational

21

The Grand Strand Area Transportation Study was formed in 1985 to provide a forum for the coordination
of regional transportation efforts affecting northeastern coastal South Carolina. AR at 987. It analyzes the existing
and future traffic based on the historic and projected growth in the area and provides the projected impacts of changes
to the road network on the capacity of primary routes located in the metropolitan area as required by the Federal
government. AR at 948.

22

Steve Gosnell, P.E., who is the Assistant County Administrator and County Engineer for Horry County,
submitted the Grand Strand Area Transportation Study (“GSATS”) in response to the Corps’ request for additional
information regarding the purpose and need for the International Drive project. AR at 919. He explained:
The need to improve this road to a paved four-lane facility is primarily driven by
the County’s unprecedented growth. Horry County’s permanent population was
196,629 in 2000 and has grown to 294,596 in 2015. Much of this growth has
occurred in the Carolina Forest area which grew by a factor of six (506%) from
2000 to 2010 adding 17,000 new residents . . . . This area of growth is served with
only two (2) points of access[:] U.S. Hwy. 501 and S.C. Hwy. 31 / Grissom
Parkway. The U.S. Hwy. 501 connection is the only access that provides routes to
the west. . . . The explosive population growth and resulting traffic congestion in
the vicinity of International Drive, Carolina Forest, and Highway 90 further justifies
the need for the paved road connection[.] . . . The need for a multi-lane roadway
is obvious now at the east end of the project near the schools (near River Oaks
Drive) where traffic congestion is a twice a day occurrence . . . .
AR at 920, 923-24. He further explained:
Upon review of the area, the only location that made sense due to the environmental
restrictions, geographic constraints and available property was International Drive.
This dirt road has existed for well over 100 years and provides a link between S.C.
Hwy. 90 and U.S. Hwy. 17 at a location approximately halfway between U.S. Hwy.
501 and S.C. Hwy. 22. After identifying this as the only viable route that would
address the growing traffic demands and the need for an alternate inland evacuation
route (in the event of hurricanes, forest fires, etc) for the rapidly growing Carolina
Forest area, we requested the W accamaw Council of Governments, who administers
the Grand Strand Area Transportation Study (GSATS) funds provided by the
Federal government, to include the improvement of International Drive in the traffic
model to determine if the benefit would justify the cost of improving this road and
if it would justify the need.
AR at 921. Mr. Gosnell further noted that the Horry County landfill is also located on Highway 90 (which will
connect to International Drive’s northern terminus), and that “[o]nce International Drive is improved, a significant
number of waste hauling trucks will utilize the new route.” AR at 921. He explained “the GSATS (Grand Strand
Area Transportation Study) travel demand network model was used to forecast the amount of traffic that would use
the new roadway.” AR at 924. He summarized the findings from the traffic model with the improvement of
International Drive as follows: (1) “Year 2030 projected average daily traffic (ADT) on International Drive is

30

basis for the overall project purpose based upon its independent consideration of the information
supplied by Horry County.
After defining the overall project purpose, the Corps determined it was not water-dependent and
found Horry County “has met its burden to clearly demonstrate that practicable alternatives that do not
involve impacts to special aquatic site[s] do not exist,” and that the County’s “proposed alternative is
considered the least environmentally damaging practicable alternative.” EA at 4, 84-92. In reaching
these conclusions, the Corps noted that it requested Horry County to clearly demonstrate in writing that
there were no practicable alternatives that would fulfill the overall project purpose, that it conducted
several meetings with the County to discuss concerns relating to the alternatives analysis, and that it
required additional information from the County during those meetings. EA at 72-73. The Corps
considered eleven proposed alternatives (as well as a no action alternative) and concluded none were
practicable alternatives within the meaning of 40 C.F.R. § 230.10(a)(3). In concluding the proposed
route for International Drive was the least environmentally damaging practicable alternative, the Corps

expected to range from approximately 10,000 to 13,500 vehicles per day”; (2) “Projected ADTs for International
Drive are close to or over the 10,800 capacity for a two-lane minor arterial as per SCDOT’s Travel Demand Model
Total Capacity Table”; and (3) “Even with the paved connection to Hwy 90 via International Drive, other area
roadways, such as US Highway 501, will still be over capacity in 2035 despite the additional widening improvements
(programmed for 2018) that are included in the model run.” AR at 922-23. Mr. Gosnell concluded:
[I]t is unreasonable to design and permit International Drive as an unsafe two-lane
roadway that will reach a borderline Level of Service (LOS) that is expected to be
close to capacity within the next 15 years. If the road is built with a two-lane crosssection, the [C]ounty will likely need to submit another permit application for
additional wetland impacts to widen the roadway in the very near future.
In summary, alternate routes for regular commuter traffic to and from
Conway will still be necessary, and alternate inland evacuation routes from the
developed area of Carolina Forest will still be needed with or without any
improvements to US Highway 501. This need will be fulfilled by the construction
of International Drive, and not by the no-build or two-lane alternative for
International Drive.
AR at 925. Mr. Gosnell’s explanations and submission of the GSATS clearly show the explosive population growth
in the area and the need for the road.

31

found:
The proposed route is the only alternative that clearly meets
the project purpose and need while providing the least environmental
impacts to the surrounding resources. Furthermore, the proposed
route provides the least damaging impacts to adjacent landowners and
potential residences. The benefits associated with the preferred
alternative include:
!
Existing road infrastructure minimizing wetland
impacts to 24.19 in comparison to 35 acres.
!
Improvements to fragmented wetlands lacking crossdrainage along proposed/existing alignment.
!
Avoidance of a minority community.
!
Avoidance of existing Red-cockaded Woodpeckers
clusters and foraging habitat within Lewis Ocean Bay
Heritage Preserve.
!
Avoidance of further fragmentation of wetlands in a
nearly undisturbed wetland ecosystem.
As demonstrated by the applicant, the proposed route impacts
the least amount of WOUS [waters of the United States] while
meeting the applicant’s purpose and adequately addressing their need.
EA at 91-92.
Although Plaintiffs claim at least three alternatives would not involve impacts to special aquatic
sites—(1) improvements to U.S. Highway 501, (2) improvements to River Oaks Drive and Carolina
Forest Boulevard, and (3) the no action alternative—the Corps determined these alternatives would not
satisfy the needs for the International Drive Project. EA at 89-92. The Corps performed its alternatives
analysis by documenting and discussing the environment impacts, as well as the relative benefits and
detriments, of each proposed alternative. See id.
Additionally, Plaintiffs make an argument relating to both the Corps’ alternatives analysis and
the Corps’ cumulative impact analysis. See Pls.’ Mem. at 27-29; Pls.’ Reply at 10-18. They point out
the Section 404 permit authorizes ten curb cuts along the west (private) side of the road, and they assert

32

the Corps’ failure to consider future land use maps “depicting significant swaths of land west of
International Drive slated for development” is arbitrary and capricious. Id. (citing AR at 967-68).
In determining whether a proposed project will have a significant impact on the environment,
the Corps must consider (among other intensity factors, see supra at footnote ten of this Order) the
reasonably anticipated “cumulatively significant impacts” of a proposed project. See 40 C.F.R.
§ 1508.27(b)(7). Cumulative impact is defined as “the impact on the environment which results from
the incremental impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or person undertakes such other
actions.” 40 C.F.R. § 1508.7. “An EA may be deficient if it fails to include a cumulative impact
analysis.” Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 883-84 (S.D.W. Va. 2009) (citation
omitted).
In this case, the Corps included a substantive cumulative impact analysis in the EA. See EA at
73-74. The Corps determined the curb cuts were needed for access to “upland areas scattered
throughout” private properties adjacent to International Drive. EA at 73. The Corps opined the
potential for development was limited given the abundance of wetlands in the project vicinity,
explaining that “[d]ue to the expansive amount of wetlands on both sides of the proposed road, the
amount of developable land is limited” and that “[d]ue to the limits and distribution of wetlands
adjacent to the proposed route, future development will be limited due to lack of developable land in
addition to large contiguous wetlands requiring substantial road infrastructure.” EA at 73-74.
Importantly, the Corps recognized that “future developmental projects requiring Federal authorization,
if submitted, will require a thorough review and will be considered at that time.” EA at 74. Given the
Corps’ rational analysis, the Court cannot conclude for the purpose of Plaintiffs’ preliminary injunction
33

motion that the Corps’ cumulative impact analysis was deficient or otherwise flawed.
b.

Special Aquatic Sites

The Corps noted in the EA that the construction project will directly impact over twenty-four
acres of wetlands, and that a portion of the project is located within the LOBHP, a state wildlife
preserve managed by the SCDNR. EA at 96-97. Both the wetlands and the LOBHP are classified as
“special aquatic sites.” EA at 96; see 40 C.F.R. §§ 230.40 (state sanctuaries and refuges), 230.41
(wetlands).
As mentioned above, the 404(b)(1) Guidelines of the CWA provide that the permitting authority
should “[e]xamine practicable alternatives to the proposed discharge, that is, not discharging into the
waters of the U.S. or discharging into an alternative aquatic site with potentially less damaging
consequences (§ 230.10(a)).” 40 C.F.R. § 230.5(c). Even if no alternatives are available, no discharge
of dredged or fill material is permitted if it will “will cause or contribute to significant degradation of
the waters of the United States.” Id. § 230.10(c). Significant degradation encompasses “significantly
adverse effects” on special aquatic sites, fish, wildlife, and other enumerated aquatic ecological values.
Id. § 230.10(c). The 404(b)(1) Guidelines provide that “no discharge of dredged or fill material shall
be permitted unless appropriate and practicable steps have been taken which will minimize potential
adverse impacts of the discharge on the aquatic ecosystem.” Id. § 230.10(d).
Plaintiffs argue the Corps violated 40 C.F.R. § 230.10 of the 404(b)(1) Guidelines by
authorizing the fill of over twenty-four acres of freshwater wetlands—which are special aquatic
sites—including those associated with the LOBHP. Pls.’ Mem. at 29-31. Plaintiffs assert, “The fill of
this large amount of wetlands will impair the hydrology of those connected wetlands. This will result
in a permanent alteration of the aquatic ecosystem in the vicinity of the project, impairing its functions
34

and values.” Id. at 30.
As mentioned earlier, the USFWS initially expressed concerns with the project but ultimately
concurred with the Corps’ determination that the project was not likely to adversely affect resources
(such as the red-cockaded woodpecker) under the USFWS’s jurisdiction and protected by the
Endangered Species Act. AR at 521-22. Additionally, the Corps relied on the 2013 contract between
Horry County and the SCDNR and found this contract mitigated any impacts that the project may have
on the LOBHP. EA at 86, 96, 99. The Corps determined the environmental impacts of the
discharge/fill would not be significant because the 2013 contract contains specific provisions regarding
the protection and preservation of the LOBHP. EA at 96. The Corps also conditioned the Section 404
permit upon Horry County’s compliance with the 2013 contract. EA at 76; AR at 1500 (the Section 404
permit). For purposes of Plaintiffs’ preliminary injunction motion, the Court cannot conclude it was
arbitrary and capricious for the Corps to rely on the existence of a contract with a state wildlife agency
responsible for the management of wetlands, wildlife, and habitat contained in the LOBHP.
Moreover, the Corps acknowledged that while the project will directly impact approximately
twenty-four acres of wetlands, which “is recognized to be significant when considering acreage alone,”
these wetlands “are mostly considered impaired with limited function (approximately 2/3 has [sic] been
identified as impaired)” and therefore “the impacts are not considered significant.” EA at 96-97.
Separately, the Corps determined no other types of special aquatic sites (mud flats, vegetated shallows,
coral reefs, and riffle and pool complexes, see 40 C.F.R. §§ 230.42, 230.43, 230.44, 230.45) are located
within the project area. EA at 97. The Corps substantively applied the 404(b)(1) Guidelines, including
those in § 230.10(c), and determined the “activity will not cause or contribute to significant degradation
of waters of the United States.” EA at 97-102. Based upon the Corps’ reasoned analysis, the Court
35

cannot conclude the Corps misapplied the 404(b)(1) Guidelines.
In conclusion, the Court finds the Corps did not act arbitrarily or capriciously in analyzing the
project under section 404(b) of the CWA and determining Horry County clearly demonstrated a lack
of practicable alternatives that do not involve special aquatic sites. See 40 C.F.R. § 230.10(a)(3). The
Court has made a searching and careful inquiry into the facts and the record, and it finds the Corps’
decision was based on consideration of the relevant factors and does not constitute a clear error of
judgment. See Marsh, 490 U.S. at 378; Hodges, 300 F.3d at 445. Accordingly, at this stage of litigation
and for purposes of Plaintiffs’ preliminary injunction motion, the Court finds the Corps’ actions were
not arbitrary, capricious, or otherwise erroneous. See 5 U.S.C. § 706(2)(A); Roanoke River, 940 F.2d
at 61 (“[Judicial] review . . . is limited to a determination of whether the Corps’ decision was ‘arbitrary,
capricious, otherwise not in accordance with law, or unsupported by substantial evidence.’” (quoting
5 U.S.C. § 706(2))).
3.

Plaintiffs Have Not Clearly Shown a Likelihood of Success on the Merits

The Court finds Plaintiffs have not, for purposes of their preliminary injunction motion, made
a clear showing that they are likely to succeed on the merits of their claims that the Corps failed to
comply with NEPA and the CWA. Thus, Plaintiffs have not met a requirement—a clear showing of
their likelihood to succeed on the merits—necessary to receive preliminary injunctive relief.
In so concluding, the Court takes note that the Administrative Record in this matter is over 1500
pages and the EA is 133 pages. This is not a situation where the Corps took a cursory look or had
limited involvement. The Corps has further indicated that under its SOP for the Charleston District,
Horry County’s revised compensatory mitigation plan satisfies the Corps’ calculation of mitigation
credits, despite other agencies’ disagreement. The Corps is recognized for its expertise and surely is
36

aware of and knows how to interpret and apply its own SOP, and the law requires deference to that
expertise even if Plaintiffs or other agencies disagree. See Aracoma Coal, 556 F.3d at 192 (“Especially
in matters involving not just simple findings of fact but complex predictions based on special expertise,
a reviewing court must generally be at its most deferential. . . . 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.’” (internal quotation marks omitted)). This
is what the Corps does, and the Corps does it regularly. The Corps has no reason not to follow its own
SOP regarding the calculation of mitigation credits and the categorization of wetland functionality and
priority.
Aside from the disagreement among wildlife agencies and the Corps over its mitigation
calculations, the Court is cognizant of the elimination of the wildlife passages (bear
tunnels/underpasses) from the contract between the SCDNR and Horry County. Notably, the Corps
discussed the elimination of the passages and high fencing along the roadway. EA at 75-76. Certainly
the County is saving money and construction costs by eliminating this contractual obligation, but at the
same time the SCDNR is the state agency charged with the protection of wildlife and natural resources
in this state. The Corps thoroughly discussed the wildlife crossings, and it believed the modified 2013
contract “represents an optimal balance between measurable benefits and risks (e.g., bears getting
trapped in the right of way).” EA at 76. Throughout the EA, the Corps summarized the numerous
comments received as well as the responses Horry County provided, and the Corps carefully considered
the concerns raised in the comments. The Court is not in a position to substitute its judgment for that
of the Corps, as the Corps’ decision is not arbitrary and capricious but rather a reasoned decision.
Having concluded Plaintiffs have not clearly shown a likelihood of success on the merits, the
37

Court could stop its analysis here. However, for the sake of a full and clear record, the Court will
briefly discuss the remaining three Winter elements. See Real Truth, 575 F.3d at 347 (recognizing
“Winter articulates four requirements, each of which must be satisfied as articulated” (emphasis added)).
B.

Likelihood of Irreparable Harm

The second Winter factor requires Plaintiffs to demonstrate irreparable harm will occur absent
an injunction. See 555 U.S. at 20. Plaintiffs allege in their complaint that they regularly use and enjoy
the waters, wetlands, bears, birds, and other natural resources of the LOBHP, which will be degraded
and/or destroyed if the project is allowed to proceed as planned. Pls.’ Compl. at ¶¶ 6-9. Plaintiffs argue
filling over twenty-four acres of wetlands and impacting nearly twenty acres of the LOBHP constitute
irreparable harm. Pls.’ Mem. at 31-36. “Environmental injury, by its nature, can seldom be adequately
remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). For the purpose of Plaintiffs’ motion,
the Court will assume Plaintiffs have met their burden of demonstrating irreparable injury will result
if a preliminary injunction is not issued.23
C.

Balance of the Equities and the Public Interest

The balance of the equities and the public interest are the third and fourth factors to be
considered. Plaintiff must show the balance of the equities tip in their favor and that preliminary
injunctive relief is in the public interest. See Winter, 555 U.S. at 20. The Court “must balance the
competing claims of injury and must consider the effect on each party of the granting or withholding

23

While the Federal Defendants and Horry County argue the likelihood of irreparable harm is minimal because
much of the wetlands are impaired or partially impaired and of limited function, see Fed. Defs.’ Mem. at 33 & Horry
Cty.’s Mem. at 14-15, the Corps determined there were five undisturbed and fully functional wetlands in the project
right of way. EA at 2. Thus, the Court cannot ignore the likelihood of irreparable harm to, at the very least, those
five wetlands.

38

of the requested relief.” Id. at 24.
For several decades the [Supreme] Court has held that violations of
federal statutes can be enjoined only if an injunction is supported by
the balance of equities, a test also known as the “balance of
hardships,” the “balance of interests,” and the “balance of
conveniences.” When courts balance the equities, they compare the
hardship the plaintiff would face if an injunction were denied against
the hardship the defendant would face if an injunction were granted.
Jared A. Goldstein, Equitable Balancing in the Age of Statutes, 96 VA . L. REV . 485, 487 (2010) (internal
footnotes omitted). The Supreme Court “suggested” in Winter that harm to the environment itself
“could not be considered in the balance of equities. Instead, harm to the [environment] mattered only
to the extent that it harmed the plaintiffs, because the balance of equities takes into account injuries to
the parties, not to the environment.”24 Id. at 513-14 (citing Winter, 555 U.S. at 25-26).
Plaintiffs allege, regarding the balance of the equities, that the potential harm to them is

24

The Supreme Court in Winter cited its earlier holding in Amoco Production Co. v. Village of Gambell, 480
U.S. 531 (1987), stating “courts ‘must balance the competing claims of injury and must consider the effect on each
party of the granting or withholding of the requested relief.’” 555 U.S. at 24 (quoting Amoco, 480 U.S. at 542). In
Amoco, the Supreme Court focused on the harm to the plaintiffs— adverse effects of exploratory oil drilling on
Alaskan Native Americans’ aboriginal rights to hunt and fish— and concluded such “injury to subsistence resources
from exploration was not at all probable.” 480 U.S. at 535, 545. Likewise, in Winter, the Supreme Court focused
on the harm to the plaintiffs:
The plaintiffs presented evidence that some whales (the exact number was disputed,
as was the extent of the harm) would be harmed by the sonar [during naval training
exercises]. The Supreme Court suggested, however, that harm to the whales could
not be considered in the balance of equities. Instead, harm to the whales m attered
only to the extent that it harm ed the plaintiffs, because the balance of equities
takes into account injuries to the parties, not to the environment. Thus, for harm to
whales to carry any weight in the balance of equities, the plaintiffs would have to
show that the sonar would harm enough whales that the plaintiffs’ opportunities to
go whale watching and make nature documentaries would be diminished.
Moreover, the Court declared, even if the plaintiffs could show that the use of the
sonar would result in diminished opportunities to go whale watching and make
nature documentaries, that injury would pale in comparison to the interests on the
other side of the balance of equities, the Navy’s interest in training sailors, which
the Court credited as essential to national security.
Goldstein, 96 V A . L. R EV . at 513-14 (internal footnotes omitted) (emphasis added) (citing Winter, 555 U.S. at 13-14,
24-26).

39

significant because the loss of twenty-four acres of wetlands and the loss of a portion of LOBHP would
be permanent and irreparable once that acreage is filled in and paved over. Pls.’ Mem. at 37. The
County, meanwhile, argues it will suffer harm in both financial and non-monetary forms (specifically,
commitments to construction costs, public safety risks, and traffic congestion). Horry Cty.’s Mem. at
17-19.
It is undeniable that the construction of International Drive will result in the destruction of a
small portion of wetlands in the LOBHP. The most serious possible injury is the net loss of 24.19 total
acres of freshwater wetlands—of which approximately two-thirds are already impaired or partially
impaired—and impacts to 19.48 acres of LOBHP (7.07 acres of freshwater wetlands and 12.41 acres
of uplands). See EA at 96, 99. However, such a loss is minimal when compared to the fact that the
LOBHP acreage being impacted is located on the very edge of the LOBHP boundary, that the LOBHP
consists of more than 10,000 acres, that Horry County is installing culverts underneath the road to
restore hydrology in the area, and that the County must abide by the terms of its 2013 contract with the
SCDNR that requires the County to take specific measures to ensure the protection and preservation
of wildlife in the LOBHP. Destruction of the wetlands matters only to the extent it will harm Plaintiffs
because the balance of the equities takes into account injuries to the parties, not to the environment.
See Winter, 555 U.S. at 24 (“[C]ourts ‘must balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the requested relief.’” (quoting Amoco, 480
U.S. at 542)). In other words, for the harm to wetlands to carry any weight in the balance of the
equities, Plaintiffs must demonstrate destruction of the wetlands would be of such a magnitude as to
impair their ability to regularly use and enjoy the natural resources of the LOBHP.
There will always be at least some concern regarding the potential for negative environmental
40

impacts anytime man places his footprint in the environment. Regarding the International Drive project,
there is already an existing dirt road in the project area. The Corps, with its undeniable expertise in
assessing wetland functionality, has determined approximately two-thirds of the wetlands to be filled
are already impaired or partially impaired “with limited function.” EA at 2, 97. A state administrative
law court found the existing dirt road has caused fragmentation of the wetlands in the area, and noted
the project plan calls for multiple culverts underneath the paved road that would actually aid in
reconnecting already fragmented wetlands and thereby restore their hydrologic function. AR at 1327.
Morever, the 2013 contract between the SCDNR and Horry County requires several conditions to be
met regarding the preservation of the LOBHP. The Court cannot ignore the fact that the SCDNR, a
state agency charged with the protection of South Carolina’s natural resources, is satisfied with the
conditions and minimization measures required of the County. The County’s “interests must be
weighed against the possible harm to the ecological, scientific, and recreational interests that are
legitimately before this Court.” Winter, 555 U.S. at 25. The costs associated with the delay in
construction are a small but still important consideration. However, the Court notes Horry County
chose to begin construction of the road, and Plaintiffs’ lawsuit seeking an injunction really should have
been no surprise to the County.25 The County’s argument that there was some unusual delay by

25

The County decided to commence construction explicitly acknowledging the risk of this federal action.
After the Section 404 permit was issued, Horry County Chairman Mark Lazarus made the following statement in a
press release:
There are always risks, but this is certainly an acceptable risk we are willing [to]
take[.] . . . W e now have all the permits in our possession that allow[] us to begin
construction on this road. There is the potential that a federal court action could be
filed to stop us from paving the road, but again we are willing to take that risk. W e
have the money in the bank and all the required permits for this project, and we are
going to get this road built.
ECF No. 16-1 at 3 (internal quotation marks omitted). This statement appears to have been made in August 2016,
and this lawsuit seeking an injunction was commenced on September 1, 2016.
Additionally, the Court notes Plaintiffs did not become aware of the Corps’ issuance of the Section 404
permit until August 22, 2016, when the press release was disseminated by Horry County via email. ECF No. 16 at

41

Plaintiffs in seeking an injunction does not carry water with this Court. However, the traffic congestion
and public safety concerns are both major and important considerations when balancing the parties’
competing claims of injury. Here, the Court finds the balance of the equities tips in favor of Horry
County in light of the traffic congestion issues and public safety concerns.26
The final Winter factor requires Plaintiffs to show a preliminary injunction is in the public
interest. Plaintiffs assert the public interest favors (1) the preservation of the wetlands in the LOBHP,
which is a public land trust intended for the enjoyment of all citizens, and (2) the enforcement of NEPA.
Pls.’ Mem. at 39-42. However, the Federal Defendants and Horry County contend there is an
overwhelming immediate public need for International Drive because its purpose is to create an
alternate route for evacuation and emergency responders and to relieve significant traffic congestion in
the area. Fed. Defs.’ Mem. at 34-36; Horry Cty.’s Mem. at 19-21.
In evaluating the public interest factor, a court “should pay particular regard for the public
consequences” of granting an injunction. Winter, 555 U.S. at 24; see Real Truth, 575 F.3d at 347 (“[I]n
Winter, the Supreme Court emphasized the public interest requirement . . . .”). Here, both parties raise
important public policy concerns: environmental preservation by Plaintiffs and public safety by
Defendants. Horry County, in particular, makes a persuasive argument regarding the immediate need
for the road to improve safety and reduce congestion.27 See, e.g., Rio Associates, L.P. v. Layne, No.
3:15-CV-00012, 2015 WL 3546647, at *6 (W.D. Va. June 8, 2015) (finding the plaintiffs “failed to
establish by a clear showing that . . . the public interest favors granting injunctive relief” in light of the

2. Plaintiffs represent that they filed a Freedom of Information Act request to the Corps, and received a partial
response including the Section 404 permit and the EA on August 25, 2016. Id.
26

See Gosnell’s Discussion of the Grand Strand Area Transportation Study, supra footnote 22.

27

See Gosnell’s Discussion of the Grand Strand Area Transportation Study, supra footnote 22.

42

defendants’ argument that the road construction “projects will improve the quality of life of thousands
of people by reducing congestion and enhancing safety”). It is obvious “[t]he singular aspect of this
case is that the parties’ sharply differing views of the public interest are exactly what gave rise to the
case.” Nat. Res. Def. Council, Inc. v. Watkins, 954 F.2d 974, 983 (4th Cir. 1992) (alteration in original).
At best, Plaintiffs’ public interest showing could arguably be said to equal Defendants’ public interest
showing, and therefore Plaintiffs have not carried their burden on this factor. But the Court cannot
ignore the need for the road and the project’s purpose to relieve significant traffic congestion, provide
an alternate route for emergency responders, and create an additional evacuation route. Either way, this
results in Plaintiffs not meeting their burden as to this factor.
Conclusion
For the reasons explained above, the Court finds Plaintiffs have not met their burden under the
Winter factors and therefore DENIES Plaintiffs’ Motion for Preliminary Injunction [ECF No. 6]
because Plaintiffs have not satisfied all the requirements necessary to receive preliminary injunctive
relief. The Court hereby DISSOLVES the consent temporary restraining order previously in effect
[ECF No. 23].
IT IS SO ORDERED.

Florence, South Carolina
November 18, 2016

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

43