Groups ask SC Court of Appeals to toss state permit for new cruise terminal



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FILE - In a March 20, 2014 file photo, the Carnival Fantasy is moored at dock in Charleston, S.C.. The South Carolina Ports Authority and the state Department of Health and Environmental Control have until Friday, Nov. 21, 2014 to respond to a motion in the state Court of Appeals to toss out a state permit for a planned $35 million cruise terminal in Charleston. (AP Photos/Bruce Smith, file)


CHARLESTON, South Carolina — Neighborhood, preservation and conservation groups have asked the South Carolina Court of Appeals to toss a state permit needed to build a contentious $35 million state passenger cruise terminal saying a lower court judge erred in allowing the permit to stand.

The permit issued by the Department of Health and Environmental Control almost two years ago allows the State Ports Authority to drive pilings beneath an old warehouse on the Cooper River for the terminal.

Administrative Law Judge Ralph K. Anderson ruled last April that the local groups lack standing to bring the challenge. They contend the terminal will hurt property values, the quality of life in downtown Charleston and increase water and air pollution.

"Petitioners have made many allegations and conclusory statements but have failed to set forth specific, admissible facts to support their allegations and statements," the judge wrote.

The Ports Authority and DHEC have until Nov. 21 to respond to the appeal of Anderson's decision that was filed late last month. The appeal was filed by Blan Holman of the Southern Environmental Law Center on behalf of the local groups.

Holman argues Anderson erred in concluding the groups have no standing in the matter and that the path the judge used to reach the conclusion "is riddled with manifest legal error."

He argued Anderson was wrong when he "concluded that a citizen who lives next to an industrial operation and testifies she chokes on the visible soot cannot show she is an 'affected person' with standing to challenge a permit unless she submits expert testimony proving medical damage."

Homan also argues the permit should be vacated because, in issuing it, the state relied on a federal certification, called a 401 Certification, that the project would not hurt water quality.

But that that certification was tossed out a year ago when U.S. District Judge Richard Gergel overturned a federal permit for the project. Gergel ruled at the time the Army Corps of Engineers considered only the impact of new pilings in the water and not the larger impact of the new terminal on the city's historic district.

That means that now, the state must do its own water quality review, Holman wrote.

"This permit must be vacated and remanded to DHEC for proper and lawful 401 Certification evaluation," he wrote.

The South Carolina Ports Authority notified the Corps of Engineers last summer that it is renewing its request for the federal permit. The Corps has said the review will be more extensive than when the agency initially approved the project back in April of 2012.

It's been almost five years since the terminal was proposed. And it's been more than four years since Carnival Cruise Lines based its 2,056-passenger liner Fantasy in Charleston, the first cruise liner to be based permanently in the city.

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