Bruce Smith, The Associated Press, September 13, 2013
CHARLESTON, S.C. (AP) — In a victory for environmental and preservation groups, a federal judge has tossed out a permit for a planned $35 million South Carolina cruise terminal, saying the U.S. Army Corps of Engineers did not adequately review the project's effects on the area.
"I think you did an end run," U.S. District Judge Richard Gergel chastised attorneys representing the Corps. "You gave this permit a bum's rush."
His decision to send the permit back to the Corps for a more complete review came in a lawsuit seeking to invalidate the permit because the agency did not properly consider what problems the terminal possibly could bring to the environment and the city's historic district.
Attorneys for the Corps said work affecting the nation's navigable waters, which is what the agency reviews, consists only of installing five new clusters of pilings beneath a riverfront building now used as a warehouse.
The South Carolina State Ports Authority wants to convert that warehouse into a new terminal for the city's year-round cruise industry. The Corps determined installing five clusters of pilings beneath the building would have little impact.
"You have an obligation to look at the entire project," Gergel told attorneys. "You haven't done what the law requires you to do by reducing a 108,000-square-foot project to 41 square feet of pilings. The process got distorted by limiting it to five piers."
Gergel said there is evidence in the 1,200-page court record that the terminal is being designed for larger ships than now call and could more than triple the number of cruise passengers visiting the city.
"The Corps' role here is not to be a waterfront zoning authority," said Justice Department Attorney Leslie Marie Hill. But the judge said that larger effects should be part of the Corps' scope of review.
"Somehow the Corps has reduced a major project to something that is less than 1 percent of the project," he said. "I feel like I'm a nanny here trying to get you to do what Congress intends."
He said he would issue a formal written order shortly.
"We are awaiting the judge's written order. Once that is received, we will determine the appropriate agency course of action in consultation with the Department of Justice," Corps spokeswoman Glenn Jeffries said in a statement.
The Ports Authority is also awaiting the final order.
"After review of the order, we will consult with the Corps of Engineers concerning next steps going forward. In the meantime, the Ports Authority will continue to operate our cruise facility in accordance with the voluntary cruise management plan, which has the approval of Mayor Riley and city council," said a statement from Allison Skipper, a spokeswoman for the authority.
The Ports Authority and the city have agreed to a public review of any increase in cruise business beyond present levels of around 100,000 passengers a year.
Gergel's ruling "presents an opportunity for full public consideration of the impacts expanded cruise operations would have in Charleston and options for managing them in a way that is good for the whole community," said Blan Holman, of the Southern Environmental Law Center representing the plaintiffs.
"This case and resolution of it isn't about being pro-cruise or anti-cruise. It's about maintaining balance going forward, which is what the law requires," he said.
The case is one of three legal challenges to the terminal and the expanded cruise industry.
Another case before the state Supreme Court contends the cruises are a public nuisance and violate city zoning ordinances. That suit seeks to block cruise operations and have the court declare it illegal to build the terminal.
The third case, in state administrative law court, challenges a state permit for the pilings.
Carnival Cruise Lines permanently based its 2,056-passenger liner Fantasy in Charleston in 2010, giving the city a year-round cruise industry. Before that, cruises made port calls, but no ships were based in the city.