I-73 lawsuit: Environmental group defeated in court, road project can move forward

Interstate 73, a major highway project that would be the Grand Strand’s first-ever connection to the interstate highway system, can now move forward thanks to a federal judge.

Federal judge Bruce Howe Hendricks in Charleston on Thursday ruled that a challenge to federal permits granted to the Interstate 73 highway project were unsubstantiated, and ruled against the environmental group that issued the challenge.

That means one of the few road blocks standing in the way of I-73 construction has been cleared and, once funding from federal, state and local budgets is secured, the project could break ground.

“Today, we’ve overcome a large hurdle to the construction of I-73 that has put the project on unnecessary hold for years,” U.S. Rep. Tom Rice, a longtime proponent of I-73, said in a statement Thursday. “I’m extremely pleased to hear today’s court decision allows the construction permit for I-73 to stand.”

The South Carolina Coastal Conservation League had challenged federal permits issued by the U.S. Army Corp of Engineers in 2017, arguing that state and federal officials did not conduct substantial-enough reviews of how the major roadway would impact streams and wetlands, among other claims. That lawsuit caused the project to be put on hold for years while the matter wound its way through the courts.

But Hendricks on Thursday issued a summary judgment of the case and said that the Coastal Conservation League’s concerns did not amount to overturning the federal permits. Hendricks issued a summary judgment — a ruling without a trial — after both the Coastal Conservation League and the agencies it had sued asked for it.

Hendricks’ ruling means state and local politicians need only to secure funds for I-73 before it can be constructed. In recent months, Gov. Henry McMaster has said he’d consider putting some American Rescue Plan funding towards the major interstate project and Sen. Lindsey Graham said he would earmark $12 million for right-of-way acquisition for the project. Local leaders have said they’d want to see federal and state funding commitments before dedication local tax dollars to the project, an effort that in the past ensnared Horry County in a multi-year lawsuit with the City of Myrtle Beach.

I-73 is seen by some local politicians as a needed booster to the region’s economy, and a needed evacuation line for parts of eastern South Carolina during major storms and hurricanes. The road would connect Interstate 95 near Florence to Highway 22 near Conway and Myrtle Beach and be the Grand Strand’s first major interstate access.

“As I’ve said time and time again, there is nothing I can do to enhance people’s lives and opportunities in this District than to get that road built. The Grand Strand is one of the busiest tourist destinations in the country. It’s time our infrastructure meets that demand,” Rice said.

In response to Hendricks’ ruling, Catherine Wannamaker, an attorney with the Southern Environmental Law Center who represented the South Carolina Coastal Conservation League, pointed out that coming up with funding for I-73 remains a significant issue.

“We respect the court’s decision,” Wannamaker said. “However, nothing in the court’s ruling solves the major hurdle facing I-73, which is the exorbitant projected cost and the lack of funding to pay for it. This highway proposal remains a boondoggle while South Carolina’s roads and highways are in critical need of repair and upgrade, and that is where taxpayer money should be directed.”

Read the full decision on I-73 below:

Still, Hendricks’ decision was immediately celebrated by at least one developer. In an email shared with The Sun News, Mike Wooten, the principal engineer of DDC Engineers, said Hendricks’ ruling was a “judgment for the good guys.”

“WE WON!!!! SUMMARY JUDGMENT FOR THE GOOD GUYS,” Wooten wrote in an email Thursday to local politicians and other developers. “We kicked the Conservation League’s butt, once again. Maybe they will stay out of Horry County for good now. NOW THERE IS NO EXCUSE FOR NOT BUILDING I-73!!!!!”

Background on I-73

The federal government first identified a need for an interstate highway connecting to Myrtle Beach in 1991. After years of planning, federal agencies, along with the South Carolina Department of Transportation, determined that a highway connecting I-95 and Myrtle Beach would “serve residents, businesses, and tourists while fulfilling congressional intent in an environmentally responsible and community sensitive manner.”

According to a history of the project included in Hendricks’ ruling, I-73 would “‘enhance economic opportunities and tourism in South Carolina,’ and ‘improve national and regional connectivity by providing a direct link’ to Myrtle Beach.” The roadway was needed, according to the history, because the Federal Highway Administration determined there was a need to ‘facilitate a more effective evacuation . . . during emergencies,’ an acute concern in Myrtle Beach where millions of people visit during the Atlantic hurricane season each year.”

Additionally, according to the ruling, “I-73 was necessary to ‘reduce existing traffic congestion on roads accessing the Myrtle Beach region,’ which are crowded during the summer even absent the threat of hurricane.”

But the Coastal Conservation League alleged that a project like I-73 “would cost up to $3.8 billion to construct and unnecessarily destroy hundreds of acres of freshwater wetlands, despite the existence of viable, cheaper, and environmentally-preferable alternatives to the new roadway.”

The League argued for alternatives, including a “no-build” solution in which existing roadways were improved to meet needed capacity and demand. But federal agencies, the judge wrote, determined that such an option was no feasible, in part because Highway 501 wouldn’t be able to handle the capacity.

“…by 2030, existing arterial roads like U.S. 501 would receive an ‘F’ under the state’s ‘level of service’ grading system due to gridlock during peak travel times, and evacuation of Myrtle Beach on those roads would slow to a 37-hour crawl in the event of a major hurricane,” the judge wrote.

Ultimately, state and federal agencies opted to move forward with I-73 with a route that would impact 313 acres of wetland and 3,805 linear feet of stream.

How the lawsuit played out

By 2010, the Federal Highway Administration was reviewing the I-73 project to determine if any additional permits would be needed. The agency concluded that none were. But no progress on I-73 was made in the years that followed and by 2017 the agency was reassessing the project to see if additional permits were necessary. Again, it concluded that none were. This time, though, the League sued in response.

In 2011, SCDOT sought a federal permit that would allow it to fill in some streams and wetlands as part of I-73 construction, in exchange for preserving wetlands and streams elsewhere. That permit application was opposed, and then stalled, and SCDOT re-submitted the application in 2016. The Army Corp of Engineers reviewed that application and ultimately approved it in June 2017. By December 2017, the Coastal Conservation League had sued.

After going back and forth in legal filings for several years, both the Coastal Conservation League and the state and federal agencies it had sued asked the judge to rule on the case without having it go to trial.

In its suit, the Coastal Conservation League argued that the Federal Highway Administration should have required a Supplemental Environmental Impact Statement when it reevaluated the projection 2017, argued the Army Corp of Engineers should not have issued the permit to fill in streams and wetlands and argued that the Environmental Protection Agency should have stepped in to veto the Army Corp’s permit as it would harm the nation’s waters.

The Coastal Conservation League argued that the Federal Highway Administration and the Army Corp of Engineers violated federal law by not pursing supplemental environmental impact statements. But Hendricks ruled that the I-73 project hadn’t changed substantially enough in between reviews to warrant a supplemental statement.

One of the Coastal Conservation League’s arguments was that a supplemental statement was needed because I-73 could be a toll road, but the judge dismissed that argument saying that the state and federal agencies had stated they would get any additional approvals for tolls if they chose to pursue that in the future.

The Coastal Conservation League also argued that additional wetland and stream impacts had been discovered in between the federal reviews of I-73, and that a supplemental environmental impact statement was needed to assess those. While the judge agreed that changes had been made in the agencies’ review of the project with regard to wetlands and streams, the changes were not substantial enough to warrant a supplemental review.

“…changes in how wetlands are delineated are not the kind of changes that trigger a

SEIS under the circumstances of this case,” Hendricks wrote. “In light of the above, both (the Federal Highway Administration) and (the Army Corp of Engineers) determined that the changes to calculated wetland and stream impacts were not significant.”

Hendricks also dismissed reports the Coastal Conservation League had commissioned showing impacts to wetlands as not significant enough to warrant the supplemental environmental impact statement the group was seeking.

The Coastal Conservation League also argued that further review should be done because I-73 would increase noise and air pollution. The judge agreed that it would, but said the increases weren’t enough to warrant further review.

“…although there was an increase in predicted noise impacts, that increase was not so significant as to change the appropriate mitigation response,” Hendricks wrote.

The environmental group also argued that a supplemental environmental impact statement was needed because building I-73 would spur development along its corridor. The judge agreed with that, but said the agencies had already accounted for that in their original applications for permits, and that a further study wasn’t necessary.

“…the potentiality of increased development is not new information; in fact, it was one of the primary motivations for the I-73 project,” the judge wrote.

The Coastal Conservation League also argued that the state and federal agencies didn’t sufficiently examine alternative routes or options that would have reduced the impact on wetlands and streams, but the judge dismissed those arguments. In court filings, the League argued that a better option would be upgrading existing roads to expressway or interstate-levels, and argued that state and federal agencies overstated the environmental impacts that expanding those roads would have. The judge dismissed those concerns, too. One reason the judge dismissed the League’s push for using existing roads was because “S.C. 38 and U.S. 501 were inadequate to meet projected transportation demand or serve the hurricane evacuation needs of the region.”

Local leaders celebrate ruling

Following Hendricks’ ruling, the Myrtle Beach Area Chamber of Commerce issued a statement, along with several local politicians, celebrating the decision.

“Today’s order is a colossal win for Myrtle Beach, Horry County and the entire state of South Carolina. I-73 is a public safety and economic development necessity for South Carolina,” said Karen Riorden, the chamber’s president and CEO. “We will remain committed to this project that so many area residents and businesses see as a lifeline for the Grand Strand.”

South Carolina Gov. Henry McMaster weighed in, too.

“Completing I-73 is a critical component of our state’s future prosperity and I’m glad to see that we’re one step closer to seeing this project come to fruition,” he said.

McMaster has previously suggested that he’s willing to put state funding towards the project but hasn’t yet made a specific commitment.

And state Rep. Case Brittain, who’s worked on the I-73 project on a national level with other states that will ultimately host portions of the road, called the ruling “welcome news.” Once fully complete, I-73 would run from Ontario, Canada through Michigan, Ohio, West Virginia, Virginia, North Carolina and South Carolina.

“Studies have estimated that once completed in South Carolina, I-73 will help create 23,000 new jobs in our state and provide a critical hurricane evacuation route for the coast,” he said. “I’m grateful to my partners in all six corridor states for their hard work on this project that will increase safety and economic opportunity for so many.”

This story was originally published September 2, 2021 at 2:02 PM with the headline "I-73 lawsuit: Environmental group defeated in court, road project can move forward."