By Dan McCue
Staff Writer

After 10 years of planning, study and delay, the S.C. State Ports Authority’s plan to build a new port terminal at the old Charleston Naval Base may be stymied by federal efforts to protect the endangered right whale.

“It comes down to this,” Col. Ed Fleming of the U.S. Army Corps of Engineers told the SPA’s board of directors on Aug. 15. “With increased shipping volume there is an increased risk to a species protected under the Endangered Species Act.

“If the National Marine Fisheries Services determines that any increase in the number of boat strikes will cause the extinction of the right whale, we will not be able to issue a permit for this project,” Fleming continued. “However, if the evaluated risk doesn’t rise to that level, the final decision on the permitting of this project will remain with the Army Corps.”

At best, a clearly aghast SPA board learned, the timeline for permitting the project has been pushed back considerably. The authority had expected a final environmental impact statement to be issued in September and a permit decision to come as early as November.

Now that the NMFS has stepped into the process, the best-case scenario is that the Corps will issue its final EIS for the project in December, with a permit decision not being forthcoming until April at the earliest.

The northern right whale is one of approximately 1,880 species listed as protected under the Endangered Species Act, and one of 64 species that comes directly under the jurisdiction of the NMFS. The species has been protected internationally since 1935.

The agency estimates that there are only about 300 of the whales remaining in the North Atlantic due to extensive commercial whaling. In fact, its name was bestowed by whalers because the species was considered the “right whale” to hunt because they were easy to catch, rich in blubber and floated after being killed.

Today, according to the NMFS, vessel collisions and fishing gear entanglements are the greatest threat to the whales. In June 1994, the agency designated several areas along the eastern seaboard as critical habitats for the right whale. None of those critical habitats were along coastal South Carolina, but the NMFS is now considering tightening the regulations for the entire East Coast.

Among the new rules it is considering is whether to impose a 10 mph speed restriction on vehicles as they approach ports of call. Fleming said because the agency is still considering the rule, it wants to take a close look at the SPA’s process for the former Navy base and assess its possible impacts.

“They have taken the position that in order to be consistent in the promulgation of a new regulation, it has to follow a formal process in assessing this project,” Fleming said. “The agency is concerned about it having an incremental impact on the right whale and wants to determine whether that impact can be mitigated.”

But SPA Chairman Bill Stern wondered whether the SPA and the Navy base project are being singled out for scrutiny by the NMFS.

“A similarly sized port terminal was just permitted in Virginia without any apparent questions being raised about that project’s impact on the right whale. Why are those questions being asked about our project?” he asked.

He also wondered why a permit for the Navy base project couldn’t be issued contingent to the SPA agreeing to comply with whatever rule the NMFS adopts to protect the right whale, something Fleming repeatedly said was not possible.

“At this point it’s in the right whale’s best interest and the ports authority’s best interest to continue to negotiate with the fisheries service,” Fleming said.

While the right whale issue is certainly the biggest threat the much-anticipated new terminal faces, it’s not the only issue that is holding up the permitting process, Fleming said.

Also at issue are concerns raised by the state Department of Health and Environmental Control and the S.C. Department of Transportation.

“As in the case of the fisheries service, I would urge you to continue to negotiate with these state agencies and resolve their concerns,” Fleming said. “After all, it doesn’t makes sense to issue a permit knowing that there’s going to be bumper-to-bumper traffic in the area from the day the terminal opens.

“I don’t develop the solutions. All the Corps can do is provide guidance on these issues. That’s why I urge you to continue to negotiate solutions that will allow the Corps to issue a timely, defensible permit decision.”

Prior to adjourning into executive session, Stern said he’s confident that outstanding issues between the state agencies and the SPA are being resolved, “but this right whale issue … it has me real concerned.”

“While the fisheries service concerns about the right whale are valid, I honestly believe that we’re being held to a higher standard than everybody else,” he said.

Dan McCue is a staff writer for the Business Journal. E-mail him at dmccue@charlestonbusiness.com.

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