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Home Working
with Section 106 ACHP
Case Digest Summer
2002 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 propertiesthe 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.
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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 ACHPs
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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