Environmental – Endangered Species Act of 1973 – National Environmental Policy Act of 1969

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Appellants do not have a sufficient likelihood of success on the merits of their claims that a permit issued pursuant to the Clean Water Act violates both the Endangered Species Act and the National Environmental Policy Act.

We affirmed the district court.

Appellants South Carolina Coastal Conservation League, Charleston Waterkeeper, and South Carolina Wildlife Federation challenged the district court’s denial of their motion for a temporary injunction. The requested injunction would halt development of the Cainhoy Plantation in South Carolina while Appellants challenge the validity of the permit issued to the Cainhoy project pursuant to Section 404 of the Clean Water Act. Specifically, Appellants alleged the permit violates both the Endangered Species Act of 1974 (ESA) because it uses a habitat surrogate to set the level of anticipated take of an endangered species, and the National Environmental Policy Act of 1969 (NEPA) because the permit was issued after the completion of an Environmental Assessment (EA) rather than an Environmental Impact Statement (EIS).

First, we considered whether the Service violated the ESA when it used a habitat surrogate in place of defining the number of individual northern long-eared bats (NLEBs), the Cainhoy project is anticipated to take. The Incidental Take Statement (ITS) set the amount of anticipated take as the 3,906 acres of habitat the Cainhoy development is expected to impact. Explaining its decision to not use the number of individual NLEBs impacted as the anticipated take, the Service stated it “anticipates incidental take of the NLEB . . . will be difficult to detect.” Thus, because the Fish and Wildlife Service determined that it was “not practical to monitor take in terms of individuals of the listed species,” it used acres “of forested habitats removed based on seasonality during the implementation of the action as surrogate measures for the anticipated amount or extent of take caused” by the Cainhoy development.

Appellants argued the habitat surrogate was improper because the Service did not demonstrate in the ITS that it was impractical to determine the number of individual bats affected. The district court determined Appellants were not likely to succeed on the merits of their claim that the use of a habitat surrogate was improper here. The district court did not abuse its discretion. The Service not only determined it was impractical “to express the amount or extent of anticipated take” in terms of the number of individual NLEBs, it also determined it was “not practical to monitor take in terms of individuals of the listed species,” because most of the take was expected to be “non-lethal and undetectable.”

We next considered whether the district court abused its discretion when it determined that Appellants were not likely to succeed on their claim that the Section 404 permit violated the NEPA where the Corps issued an EA rather than an EIS. Appellants argued the Corps was arbitrary and capricious in its decision not to prepare an EIS because comments Appellants filed in response to public notice of the proposed permit approval pointed out that several of the “intensity factors” listed in 40 C.F.R. § 1508.27(b) applied to the Cainhoy development such that the EA was not sufficient. The district court determined the Appellants did not have a sufficient likelihood of success on this claim because the EA “provides considerable discussion of the Project’s impacts on the land and surrounding communities and responds to comments raised by [Appellants] throughout the environmental comment and review period.” Appellants argued on appeal that the district court erred in its analysis because it did not conduct a review of each of the significance factors itself to determine whether the Cainhoy project required an EIS. Appellants are incorrect. Contrary to Appellants’ assertions, the district court was not free to evaluate the significance of the Cainhoy development of its own accord, other than for clear error, because a “court is not empowered to substitute its judgment for that of the agency.” Instead, even on the merits, the district court would be limited to determining whether the Corps took the required “hard look” at the environmental consequences. That is, it could only evaluate “whether the agency considered the relevant factors and whether a clear error of judgment was made.”

Given the procedural posture of this case, where the district court was required to determine only whether Appellants had a sufficient likelihood of success on the merits of their claim, we concluded that the district court did not abuse its discretion. The district court’s opinion makes clear that it reviewed the EA and determined that the Corps considered each of the factors and issues raised by Appellants. At this stage, the district court was satisfied that Appellants had not demonstrated a likelihood of success on their claim that the Corps did not take the required hard look. So are we.

Affirmed.

South Carolina Coastal Conservation League v. United States Army Corps of Engineers (Lawyers’ Weekly No. 001-155-25, 25 pp.) (Stephanie D. Thacker, J.) Appealed from the U.S. District Court for the District of South Carolina, at Charleston (Richard Mark Gergel, J.) Argued: Catherine Moore Wannamaker, Southern Environmental Law Center, Charleston, South Carolina, for Appellants; Kevin McArdle, United States Department of Justice, Washington, D.C.; Michael Rhett DeHart, Womble Bond Dickinson (US) LLP, Charleston, South Carolina, for Appellees. On Brief: Christopher K. DeScherer, Emily C. Wyche, Southern Environmental Law Center, Charleston, South Carolina, for Appellants; Todd Kim, Assistant Attorney General, Bonnie Ballard, Sara E. Costello, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; James F. Choate, Amy M. Schwartz, Office of Counsel, United States Army Corps of Engineers, Washington, D.C.; Helen H. Speights, Office of the Solicitor, United States Department of the Interior, Washington, D.C., for Federal Appellees. U.S. Court of Appeals for the Fourth Circuit