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By David Caraviello

A federal appeals court has denied an appeal from environmental groups seeking an injunction that would have halted work on a sprawling master planned development being built on Charleston’s Cainhoy peninsula.

The U.S. Fourth Circuit Court of Appeals on Jan. 31 upheld the decision of a lower court denying a temporary injunction sought by the South Carolina Coastal Conservation League, along with Charleston Waterkeeper and the South Carolina Wildlife Federation. The requested injunction would have stopped development on the Cainhoy peninsula — home to the mixed-used Point Hope community, which could eventually encompass over 9,000 residential units — while the validity of its permitting was challenged.

The environmental groups argued that the method federal authorities used to determine potential damage to endangered species in the Cainhoy tract was improper. The U.S. Army Corps of Engineers had violated federal laws, the plaintiffs said, by granting a development permit based on a method that gauged potential impact on endangered species by studying their habitat. Plaintiffs wanted federal agencies to use a more exact process that detailed potential effects on the species in question —particularly the northern long-eared bat.

The northern long-eared bat has never been spotted in Cainhoy and was last documented about 8.5 miles away in the Francis Marion National Forest in 2019, according to the text of the court’s ruling. A lower court had ruled that estimating potential effects on endangered species based on their habitat (called an “environmental assessment”) rather than employing the more rigid method (called an “environmental impact statement”) was sufficient in areas where the impact on the species in question is expected to be minor.

The U.S. Fourth Circuit Court of Appeals agreed, affirming the ruling from the U.S. District Court for the District of South Carolina that had initially denied the injunction, concluding that the appellants “do not have a sufficient likelihoods of success on the merits of their claims,” Judge Stephanie Thacker wrote.

The Corps of Engineers referred an inquiry to the U.S. Department of Justice, which did not have any comment. The South Carolina Coastal Conservation League said in a statement that its larger case, which deals with the U.S. Clean Water Act and the wetlands involved in the Cainhoy development, continues to proceed in U.S. District Court.

“We asked the court to halt the clearing of over 4,000 acres of endangered species habitat before the merits of our claims are presented to the court. The full case will now proceed to district court, and we look forward to addressing our claims, particularly our concerns about filling 187 acres of wetlands and the impacts on historic neighboring communities and subdivisions along Clements Ferry Road,” said Faith Rivers James, the organization’s executive director.

“We also believe the Corps of Engineers should fully assess current roadway needs that will stem from 9,000 new homes being built in the heart of this rural area, adjacent to the Francis Marion National Forest. As the population in this area has doubled since the original plan was approved, we believe all community residents should have an opportunity to hear and engage with the Corp of Engineers on these issues that will significantly impact their daily lives.” 

3,000 acres to be developed

Located across the Wando River from Mount Pleasant, the Cainhoy peninsula is a largely rural swath of Berkeley County that was settled by indigenous peoples as far back as the 1500s, and became a haven for freed slaves even before the Civil War. In the 1930s and ‘40s, the Guggenheim family began buying tracts of land in the area that eventually totaled 16,000 acres. Cainhoy in 1996 was annexed into the city of Charleston by former Mayor Joseph P. Riley Jr., who had done the same with Daniel Island at the southern tip of the peninsula in 1991.

The Guggenheims ultimately enlisted DI Development Company, which had transformed remote and rural Daniel Island into a highly successful master-planned community, to work its magic on 9,037 acres of its holdings in Cainhoy. The construction of the Philip Simmons elementary, middle, and high schools in 2016 marked the unofficial start to what would become Point Hope, which received its permit from the U.S. Army Corps of Engineers in 2022. The development currently consists of two residential neighborhoods and a commercial area.

The South Carolina Coastal Conservation League has long been against the development. “It’s difficult to reconcile how our leaders can be so concerned about storm surge and rising seas, but at the same time they’re OK with approving a huge new development in vulnerable areas that will surely and repeatedly flood,” a SCCCL official said in a 2022 news release. “There are smarter and safer ways to develop this property, yet the plan moving forward places developer profits ahead of the well-being of our future neighbors and at the expense of our invaluable cultural and environmental resources adjacent the national forest.”

Of the 9,000 acres allotted to the Point Hope project, 3,906 acres are slated to be developed, according to the text of the Fourth Circuit ruling, including 181.5 acres of wetlands out of 2,500 such acres in the tract at large. The remaining acres are to be placed in conservation easements or restrictive covenants to permanently protect the property. 

Due to the wetlands involved, developers applied to the U.S. Army Corps of Engineers in 2018 for a permit under the Clean Water Act. As part of that process, the Corps of Engineers along with the U.S. Fish and Wildlife Service completed an environmental assessment to determine if a more exacting environmental impact statement was required. The Corps specifically evaluated the development’s effect on the northern long-eared bat and red-cockaded woodpecker. In 2002, the Corps completed its environmental assessment, determined no EIS was required, and issued its permit for development.

According to the text of the ruling, the Corps in completing its environmental assessment “coordinated with other state and federal agencies, participated in community meetings, and solicited and responded to public comments about the Cainhoy development project.” Of all the entitles involved, the ruling added, only one requested the Corps also complete an EIS — the South Carolina Conservation League.

Restricting tree removal

On Aug. 17, 2022, the South Carolina Conservation League filed a federal lawsuit in the District of South Carolina arguing that the Corps’ permit was unlawfully issued because it violated both the Endangered Species Act and the National Environmental Policy Act. Development work was paused, and the lawsuit stayed, in 2023 as the environmental impact of the work was reviewed — partly because the northern long-eared bat had been reclassified from threatened to endangered.

Rather than conduct a survey to confirm or deny the presence of the bat, the ruling states, developers “elected to presume the presence” of the bat on the property “because they believed the cost and time of surveys would render the project infeasible.” To reduce the risk of bat mortality, the U.S. Fish and Wildlife Service restricted developers from removing trees on 2,930 acres during the bats’ summer occupancy from April 1-July 15, and their winter torpor (a semi-hibernation state) from Dec. 15-Feb. 15.

The Corps deemed those changes sufficient, and work on Point Hope resumed in July of 2024. The South Carolina Conservation League then filed an amended complaint and moved for a temporary restraining order and preliminary injunction charging both the Corps and the Fish and Wildlife Service with acting “arbitrarily and capriciously” in using habitat to estimate the potential level of damage to the bats, and not undertaking an EIS. The district court denied the South Carolina Conservation League’s motion for a preliminary injunction in September 2024.

The U.S. Fish and Wildlife Service contended that it was not practical to conduct a more exact study of potential bat damage as demanded under an EIS, given that bats are largely nocturnal, occupy forested habitats where they are difficult to find, and that any non-lethal impacts (such as bats fleeing) would be undetectable. The district court ruled that the South Carolina Conservation League was not likely to succeed in its claims that the Corps and the Fish and Wildlife Service violated the law.

The district court also stated that the ruling the South Carolina Conservation League used in support of its argument — one from 2019 involving the Sierra Club — did not apply, because the bats in that case were able to be surveyed and were spread out over a much smaller area. The U.S. Fourth Circuit upheld that decision, adding that its own review of the Cainhoy environmental assessment found 14 pages “specifically considering and responding to each of (the) Appellants’ concerns.”