Background
The U.S. Army Corps of Engineers issued a Clean Water Act Section 404 permit for Cainhoy, a planned mixed-use development on 9,076 acres in the Charleston, South Carolina, area. The approved plan would develop 3,906 acres and affect 181.5 acres of wetlands, while placing the remaining acreage under conservation easements or restrictive covenants. Earlier plans would have affected more than 1,800 acres of wetlands.
Three environmental organizations challenged the permit, arguing that the Corps arbitrarily designated the proposal as the least environmentally damaging practicable alternative, or LEDPA, without adequately considering on-site plans causing less wetlands damage. The district court entered summary judgment for the Corps and the developer entities, concluding that the agency had extensively analyzed the alternatives. It also held that jurisdiction arose under the Clean Water Act’s citizen-suit provision rather than the Administrative Procedure Act.
The Court’s Holding
The Fourth Circuit affirmed. It first held that a challenge to the Corps’ issuance of a Section 404 permit concerns final agency action and therefore proceeds under the APA, not the Clean Water Act’s citizen-suit provision, which addresses failures to perform nondiscretionary duties. The district court’s jurisdictional error was harmless because both statutes supplied the same arbitrary-and-capricious standard for the merits issue presented.
Applying that standard, the court held that the Corps reasonably concluded that the Cainhoy proposal was the LEDPA. The Corps evaluated nine off-site alternatives, four on-site alternatives, four versions of the conservation groups’ Dover plan, and a no-action scenario. It rationally found the off-site options impracticable, the other on-site options more damaging to wetlands, and the Dover and no-action approaches inconsistent with the project’s overall purpose or likely to expose undeveloped acreage to future piecemeal development without comparable conservation protections.
Key Takeaways
- A challenge to the Corps’ issuance of a Section 404 permit is reviewed as final agency action under the APA, not through the Clean Water Act’s citizen-suit provision.
- The Corps’ LEDPA analysis survived review because the environmental assessment examined multiple off-site, on-site, reduced-impact, and no-action alternatives and explained why each was impracticable or less protective overall.
- An alternative’s lower immediate wetlands impact does not make it practicable when it constitutes a distinctly different project or leaves substantial acreage exposed to potentially greater future impacts.
Why It Matters
The decision clarifies the proper jurisdictional route for Section 404 permit challenges in the Fourth Circuit and limits the reach of the Clean Water Act’s citizen-suit provision to alleged failures to perform nondiscretionary duties. It also illustrates the deference agencies receive when their administrative records connect relevant facts to a reasoned alternatives analysis.
For developers and environmental challengers, the opinion underscores that LEDPA review may account not only for the acreage immediately affected but also for project purpose, practicability, conservation commitments, and the potential cumulative effects of future piecemeal development.