South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Letter Threatens Lawsuit Over Dollar General Store-Brevard NC
April 27th, 2020

By Matt McGregor, The Transylvania Times

The construction of the Dollar General on U.S. 276 is alleged to threaten an endangered species, the Elktoe Mussel, which is a violation of the Endangered Species Act (ESA), according to a letter from an environmental group in South Carolina that warns of a lawsuit.

In the letter addressed to Transylvania County government, the Broadway Group, LLC (project overseer and developer of the project), and the N.C. Department of Environmental Quality, Michael Corley, the upstate director of the South Carolina Environmental Law Project, said he's representing a group under the name "Concerned Citizens of Transylvania County."

"The purpose of my letter is to provide you a clear notice that construction and operation of the Dollar General is very likely to cause a violation of Section 9 of the Endangered Species Act by harming an adjacent population of Elktoe Mussel and to inform you that, absent significant modifications to the construction plan, we will be pursuing decisive legal action to prevent and remedy that harm," he said. "While personal reactions obviously hold no legal weight here, I must express our collective shock that a non-essential commercial retail store could receive all necessary permits to be constructed entirely within a floodplain, with no permanent stormwater treatment, discharging into trout waters, on the banks of a creek holding a population of endangered mussels, all in the face of immense public outcry.

"Certainly much more significant and necessary projects are regularly overhauled or terminated on the basis of less. The fact that this ill-advised project has reached an advanced stage reflects a variety of shortcomings that should be examined going forward, but our concern is with preventing the present course of action from bearing its inevitable fruit, that being a violation of environmental law."

The letter is dated April 17, and Corley said he's requesting that a resolution be discussed within 10 days.

"We desire a productive conversation on these issues, rather than litigation, which is why we have chosen to write this letter, but time is at a premium," he said. "If any of the entities involved here would like to discuss resolution of the impending violation of ESA Section 9, please reach out to me as soon as possible. Unless construction progress dictates otherwise, we intend to wait 10 days for voluntary discussion of this issue before moving forward with formal ESA action."

In a phone interview, Corley said, as an environmental lawyer, he found it "odd" that a retail store was being built "entirely within a floodplain."

"That means it has to be built up so that it doesn't flood, which in this day and time, we are typically moving away from that kind of development," he said.

He said he's also "troubled by the lack of permanent stormwater controls."

"Typically when you build a commercial site, you would have a stormwater detention pond and other things so that when it rains on the property, the oil, gas, septic and whatever else washes off from the parking lot and the roof, it doesn't run into the nearest body of water," Corley said. "There is a detention pond that collects and treats that stormwater before it goes into the nearest stream."

Then, he said, he discovered that there were Elktoe mussels at the "confluence" of Hogsed Creek and the French Broad River.

"It's quite a rare situation for an environmental lawyer," he said. "Almost never do you have a situation where there is an endangered animal directly in the crosshairs of a project, so when combining all of these issues, I saw a very serious problem. It's very surprising to me that this project has gotten to the point that it has without these issues being thoroughly addressed."

Corley said he's handled endangered species litigation previously.

In Isle of Palms, S.C., he worked on a case that resulted in a federal judge ruling in 2017 that plastic seawalls that had been built on the beach had to be removed because they were preventing the endangered Kemps Ridley sea turtles from nesting.

The Dollar General construction, he said, is a case "as direct and clear cut a situation as one is going to see of a project that is likely to directly harm an endangered animal."

"Rarely have I seen a less necessary project clear more environmental hurdles," Corley said. "I do want to express that I'm optimistic and hopeful, and I really do want my letter to be a spring board for a productive conversation, and not to be an adversarial thing. I hope that Transylvania County and the local environmental officials will take me up with that."

When contacted for a response, Transylvania County Manger Jaime Laughter said, because of potential litigation, she referred requests for a response to Transylvania County Attorney Bill Bulfer, with the Teague Campbell law firm in Asheville.

A response was not provided by press time.

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