South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Dollar General Protestors Want Elktoe Study -Brevard NC
May 18th, 2020

By Matthew McGregor, The Transylvania Times

At a press conference on Wednesday, the South Carolina Environmental Law Project (SCELP) announced its initial steps in legal proceedings pursuant to the Endangered Species Act.

The lawsuit alleges that a population of Elktoe Mussels is threatened by the construction of the Dollar General off U.S. 276.

The defendants in the lawsuit are Broadway Construction, Transylvania County and the NC Department of Environmental Quality (NCDEQ).

As previously reported, the press conference was at Becky Mountain and Mill Cover roads, and remarks were made by Steep Canyon Rangers lead singer and guitarist Woody Platt; Brevard City Councilman Mac Morrow; Christy Blakely, who represented the group Citizens of Transylvania County; and their attorney from SCELP, Michael Corley.

"What we are asking for is quite simple," Corley said. "There has been no real study of the impact of this Dollar General's development on the endangered population of Elktoe. It simply hasn't been studied. Some people are assuming that won't be a problem. Others think it may be a problem. All we are asking for is to do the study. Stop the construction until you do the study to determine whether the construction is going to result in a violation of the Endangered Species Act. It's a very simple request."

The goal of not harming the Elktoe can be accomplished in a couple of ways, Corley said, including an improved stormwater plan and restoration and enhancement of the remaining floodplain

The Endangered Species Act was signed into law by President Richard Nixon in 1973.

It was initiated over concern for the Bald eagle, a population of which had decreased over time due to the use of the pesticide DDT.

Regulation of the act falls under the jurisdiction of the U.S. Fish and Wildlife (FWS) and the National Marine Fisheries Service (NMFS). Since its enactment, corporations have lobbied Congress to loosen the ESA's grip on environmental regulations that prevent or increase the cost of development.

Gary Peeples, deputy field office supervisor and public affairs officer for FWS for the South Atlantic and Gulf region, said in a phone interview that he's "never seen a lawsuit quite like this one" in his time at FWS, which began in 2001.

"I'm as interested as everyone to see how this turns out," he said.

There are several issues "at play" in determining whether a commercial development were to face consequences for destroying an endangered species, and Peeples said he's never seen a project stop as the result of a lawsuit.

"First of all, there is a difference between section 7 of the Endangered Species Act and section 9," he said. "Their lawsuit is under section 9. Section 7 is a part of the act that prohibits the federal government from jeopardizing the existence of a species. Under that, any project that gets federal funding or federal authorization gets reviewed for its impacts to endangered species, and we work with that federal agency to minimize and, hopefully, eliminate those impacts. That can spill over into commercial developments, usually, when they need some sort of federal permit for construction, and that usually kicks in when there are direct impacts to streams and wetlands."

Still, he said, it's legal for there to be some environmental impact through the "incidental take permit," which is a permit that allows the developer to destroy an endangered species as long as it's incidental to what the developer is doing.

"If you have that permit, you can harm and destroy an endangered species to a point, but you cannot bring it to extinction, however," he said. "Another distinction to draw when you are talking about endangered species in general is that the law makes a distinguishment between plants and animals.

"If a totally private operation with no federal funding, like we are seeing here – someone can destroy endangered plants. Plants are considered personal property. They go with the land. Whereas, wildlife is not considered personal property. It is a collective resource held in trust."

Also, one can destroy an endangered species and not face consequences if that entity isn't caught.

"It's like asking if someone can speed down a highway and not face consequences," he said. "In this case, the citizens essentially believe they have caught Dollar General and the developer doing harm to the mussel."

At FWS, there is a law enforcement branch that pursues cases against people who may have harmed an endangered animal.

"The challenge with making a criminal case is that you have to be able to prove beyond a reasonable doubt that the actions cause the harm to the endangered species, and that can be extremely challenging, especially with mussels," he said. "With this case, the preponderance of evidence has to show that the Dollar General caused harm to the mussel, and, again, I've never seen a case quite like this."

At the news conference, Blakely provided a timeline of the interactions between the citizen's group, Transylvania County commissioners, the Dollar General cooperation and the developer, Broadway Construction Co., LLC.

"I distributed to the commissioners and county manager the extensive environmental studies documented for this bridge project – studies that ranged from 2012 to 2017, including the findings of federally-listed endangered Appalachian Elktoe mussels, which had been identified near the mouth of Hogsed Creek in the French Broad River, just at the edge of the field beyond 276," she said. "Finding the mussels in this location was remarkable, as the Appalachian Elktoe had previously been considered extinct from the French Broad River."

She said she spoke directly with the developer on March 13, asking if he would consider "being bought out" by a trust of "conservation-minded individuals," who also offered to "deed-restrict" the property from future competitor projects. She said his response was an asking price of $2 million.

After the county issued the project's floodplain permit, she said the expectation was that, with the issuing of the permit, "all necessary reviews and approvals would have occurred, environmental impacts would have been assessed, and the project plans – if permitted – would robustly mitigate environ-mental risks."

"The process and outcome of such reviews has not been and continues to not be transparent to the Citizens of Transylvania County," she said. "Appropriate design standards for environmentally sensitive sites, such as those documented by U.S. Fish & Wildlife and the NC Wildlife Resources Commission, appear to be missing from this project's designs. Despite much outreach to both Dollar General and the developer, neither met with the community nor addressed any concerns."

Platt began by stating, "Folks, I don't want to be here."

"I don't want to stand on the banks of the French Broad River and Hogsed Creek, in the floodplain, in our hometown, talking about a Dollar General store," he said. "I don't want to be here to talk about this, and I'm sorry that I have to be. This is a mindboggling situation that, honestly, on the outset, I was certain wouldn't get off the ground. So, it's heartbreaking to see it this far along. The French Broad River is the third oldest river in the world, and we as a community have the honor and the privilege to house the headwaters, and it's our duty to protect the headwaters."

The Dollar General need, he said, has already been serviced.

"I drove by two on my way from my house to here, so this seems unnecessary," he said. "I would like to just ask the developer and Dollar General to think about the community's needs, desires and the environment on a local, regional and global level, and stop this project.a"

Morrow began the conference by providing a history of the area along the river, beginning with the trek of the Cherokee Indians from Connestee to Ecusta, and ending with the emergence of 276 as "Potters' Row," a tourist attraction that brings in visitors through the "back door" of Brevard.

"The French Broad River may just become our hero in the challenge," he said.

Transylvania County's water resources distinguish the area, he said, and "deserve our protection."

"No one else is home to seven river systems on both sides of the continental divide," he said. "We could not be the land of waterfalls without them."

William Bulfer, Transyl-vania County government's attorney, gave a response in addressing the lawsuit.

"The Transylvania County planning department issued a permit approving the development in compliance with the criteria in the county's floodplain ordinance on Dec. 6, 2019," Bulfer said. "In a letter dated May 4, 2020, addressed to the county among other entities, the South Carolina Law Project alleged that the site development required a federal permit to protect an endangered species, the Elktoe Mussel population and that a citizen suit would be filed within 60 days. In further communications with the environmental group, the county was asked to suspend the permit and development. The county is evaluating this request in the context of its limited authority under the floodplain ordinance and expects to provide response to the South Carolina Environmental Law project within the time frame allotted."

In a May 14 supplement added to his previous response dated May 13, 2020 (above), he said the floodplain permit application for the Dollar General store was dated Nov. 26, 2019, and it was approved on Feb. 3, 2020, by the Transylvania County Planning Depart-ment.

"The subdivision application for the project was received and approved on Dec. 6, 2019 by the Transylvania County Planning Department," he said.

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