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Home arrow Working with Section 106 arrow ACHP Case Digest arrow Summer 2002 arrow South Carolina: Construction at Encampment Plantation, Charleston
South Carolina: Construction at Encampment Plantation, Charleston

Agency: Army Corps of Engineers

This case reasserts the legal obligation of Federal agencies to consider direct and indirect effects of an undertaking on National Register listed or eligible historic properties—the essence of Section 106 review. A Federal court recently upheld the position that such a review must be conducted before a Charleston, South Carolina, road paving application could be approved. While the paving may not directly affect historic properties, as the defendant argued, the action could indirectly affect those properties.

In 1995, the County of Charleston submitted a permit application to the Army Corps of Engineers, Charleston District, to pave an access road on city property that would lead to a proposed city landfill. The project would involve a wetland crossing, and therefore, was subject to Corps regulation.

The Advisory Council on Historic Preservation notified the Corps that the road-paving project might require compliance with Section 106 of the National Historic Preservation Act because it could affect significant historic properties.

The properties include the King Cemetery, an 1850s slave burial ground listed in the National Register, and the property it stands on, the Encampment Plantation, which was a rice farm owned by the family of 19th-century South Carolina senator and governor Robert Young Hayne that is eligible for the National Register.

The Corps asserted that the area of consideration for cultural resource impacts was limited to the footprint of the roadway only, and that the site in question was located outside of the footprint. The neighboring property owners filed suit, and the National Trust for Historic Preservation, the American Cultural Resources Association, and the Society for Historical Archaeology supported the plaintiff in the lawsuit.

The property owners and the preservation groups argued that the Corps failed to adequately take into account the effects of the road and landfill on the historic properties on and adjacent to the proposed landfill and road. In March 2002, the Fourth Circuit Court of Appeals agreed with the plaintiffs, and the U.S. District Court of South Carolina agreed to remand the case to the Corps for its consideration under Section 106.

In July 2002, ACHP wrote to the Corps stating that ACHP would become a consulting party in Section 106 review for this project. Per ACHP’s request, the Corps is compiling information on the project, the historic properties, and the current status of the Corps’ permit review.

Staff contact: Tom McCulloch

Updated November 1, 2002

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