Please excuse the cross postings, but I was sent the following press release
by a colleague and asked to post it for information and discussion. Anyone
wanting additional information may contact me and I'll try to root out the
address or phone number of the attornies involved in the case.
Best,
Michael Trinkley, Ph.D.
Director
Chicora Foundation, Inc.
PO Box 8664
Columbia, SC 29202-8664
803/787-6910
SC HISTORIC PRESERVATION LAWSUIT MOVES FORWARD
CORPS' SANDERS GUIDANCE CHALLENGED IN FEDERAL COURT
Charleston, S.C. - A federal lawsuit filed against the U.S. Army Corps of
Engineers in February 1997 challenging, among other things, the Corps'
"Sanders guidance," is expected to be heard next month. The plaintiff's motion
for injunctive relief is scheduled for Tuesday, February 17, 1998.
The Corps' South Atlantic Division issued a 1994 directive, referred to as the
"Sanders guidance" which limits Corps consideration when evaluating impacts on
historic resources and endangered species to only those resources that may be
found within the "footprint: of the permit area. The suit challenges this
internal memorandum as contrary to the public law (specifically the Endangered
Species Act and the
National Historic Preservation Act).
The controversy began in 1991 when Charleston County applied for a Nationwide
26 permit in conjunction with development of a 754 acre tract as an ash
monofill/landfill. Referred to as the "Sheppard Tract," the site was, in fact,
part of a former rice plantation containing hundreds of acres of wetlands. The
tract's only legal access is a 50 foot wide right-of-way which would have
required extensive wetland fill at an additional $1.4 million cost to local
taxpayers. Controversy began as local residents expressed concern over the
proposed site in their community. With the environmental impacts still
unresolved, the Nationwide 26 permit application was "retired" by the Corps in
1993.
The County, however, used a different approach to the project when, in 1994,
they applied for a state mining permit to create borrow pits on the southern
end of the property. By referring to the project as a "mining operation,"
providing the fill needed for road construction, the effort was exempt under
the Corps current policies, as temporary mining roads and logging roads are
excluded from the 404 permitting process.
Only 10 days before the project was to begin, the plaintiff's raised
opposition as it was determined that the property had been previously
identified (using National Park Service grant funding) as having historical
significance. No mention had been made to the potential historic resources of
the site -- in fact, even the SC State Historic Preservation Office had
"signed off, on the project, failing to refer to the planning and management
tool developed by them with NPS funding.
Although the mining operation plans were suspended in June 1996 after it was
determined that the tract contained archaeological resources eligible for
listing on the National Register of Historic Places, the County renewed its
efforts to obtain a Corps Nationwide permit for the wetlands crossing, citing
the need to access the site to "train tracking dogs." Plans for the ash
monofill/landfill remain a possibility, although
the only legal access remains the one unimproved right-of-way. The Corps
issued the authorization for the activity under their Nationwide permitting
program in September 1996, citing the 1994 Sanders guidance, despite requests
from the Advisory Council to comply with their responsibilities under Section
106 of the National Historic Preservation Act. After the suit was filed in
U.S. District Court, the Department of Justice, representing the Corps, was
given a seven month time period to review their administrative procedures,
negating the need for the plaintiff's injunctive relief motion.
In November 1997, the Corps re-authorized the activity under the Nationwide
permit and the Plaintiffs again moved the Court to provide for injunctive
relief, citing potential irrevocable harm that could be caused to the historic
resources by the proposed activity.
An important issue to both the environmental and cultural resource management
communities, this case could set a precedent that should be closely watched in
the weeks to follow.
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