Article originally published October 29, 2023 in The Post and Courier

Written by: Clare Fieseler

Longleaf pines with peeling bark tower over the flooded marsh and its fields of green, swaying spartina grass. A salty breeze catches the Spanish moss hanging from a live oak, while rotting tree trunks loom nearby.

This is the dynamic habitat that endangered bats and woodpeckers love. But preserving it could mean big delays for a Charleston-based developer that holds a controversial federal permit to clearcut much of the land to build 18,000 homes.

The Cainhoy peninsula is a 9,000-acre expanse and the largest tract of undeveloped land in Charleston’s city limits. It’s half the size of Manhattan Island in New York City and, according to the U.S. Fish and Wildlife Service, is the home of two endangered species — a small bat and a woodpecker — as well as another bat species recently proposed for endangered listing. 

On Oct. 24, the U.S. Fish and Wildlife Service reopened a federal “consultation” about the impact of development on red-cockaded woodpeckers living on and next to the Cainhoy property, the future home of the sprawling Point Hope community. The action signifies deeper scrutiny — and likely more building delays — for the site’s main developer, the DI Development Co.

The Post and Courier obtained a letter from a Fish and Wildlife Service representative to the Army Corps of Engineers that marks the renewed scrutiny. Local bird conservation groups welcomed the previously unreported letter. 

“Our position has been, and continues to be, that any planned development should be sited and scaled in such a way that negative impacts to wildlife, wetlands and the natural environment are avoided or at the very least minimized,” said Tim Evans, director of land conservation at Audubon South Carolina, in response to news of the letter. “The planned development at Cainhoy does neither.”

This marks the second species consultation in the past seven months that has been opened out of concern for the development’s potential impact on endangered wildlife.

Earlier in October, The Post and Courier reported a clearcutting pause on 4,000 acres after the Fish and Wildlife Service added the northern long-eared bat to the endangered species list.

That consultation involved looking more closely at how Cainhoy’s unique forest ecosystem supports the long-eared bat and two closely related species, the tricolored bat and the little brown bat. A deadly fungus wiped out all three species from South Carolina’s mountains; a few pockets of coastal forest seem to be their last refuge.

The chainsaws clearcutting Cainhoy likely stopped sometime in May. All homebuilding activities have since been restricted to a small sliver of land that had already been cleared. 

Required by section 7 of the Endangered Species Act, these “consultations” are key protections afforded by the law that give federal agencies a pause to talk to each other. The landmark wildlife law passed in 1973 has many other aspects, but “consultations” have historically caused the most disruptions to large-scale development. 

Discussions usually involve pouring over environmental data and ensuring actions that the U.S. government funds, authorizes or carries out won’t harm critical habitat or jeopardize the existence of any species.

And, now, two of them are wrapping red tape around the future of Cainhoy.

DI Development’s marketing website for the future Point Hope homes they are actively selling makes no mention of the consultations or the delays. Lawyers say they shouldn’t be downplayed.

“To me, these (consultations) are the real meat of the Endangered Species Act,” said Catherine Wannamaker, a senior attorney for the Southern Environmental Law Center. In August 2022, the center filed a lawsuit on behalf of three environmental groups, claiming the Cainhoy plan violates the Clean Water and Endangered Species acts.

Not only does the plan involve removing specific longleaf pine trees where woodpeckers have built their homes, it also places 45 percent of the homes in the 100-year floodplain while destroying flood-mitigating wetlands, the lawsuit claims. Developers rejected an alternative design that the firm Dover, Kohl, & Partners presented, which would have protected those woodpecker-hosting trees, as well as a forested buffer around them. 

How long these discussions will take or how long the tree-cutting pause will drag on isn’t clear.

The section 7 process is complex. All consultations start as “informal,” which involve plugging numbers into analytical tools or getting agency staff to meet in person. If concerns remain, the agency that issued permit approvals, in this case the Army Corps, can request a “formal consultation.” 

Once the process is formal, it becomes a different beast.

Analysis goes deep and spits out a Biological Opinion about the project’s likely impact on animals of concern. A formal consultation must be completed in 135 days, though it’s common for agencies to request extensions if a species is poorly studied — such as the northern long-eared bat.  

“Developers hate formal section 7 consultations — because they’re meaningful, it takes time, the agencies look closely, they try to find ways to allow actions that better benefit a species ... but those often aren’t what the developer wants,” Wannamaker said. 

Confusion exists about whether the two consultations have reached the formal stage. 

The Army Corps “has submitted a biological assessment for formal consultation” for the northern long-eared bat,” said wildlife service spokesman Brynn Garner. The formal stage had “not occurred at this present moment,” she said.

But documents released through a Freedom of Information Act request filed by the law center suggests otherwise. Environmental consultant Ryan Wenzel wrote in a letter in July that he was providing bat-related data to the Army Corps “as required by the formal consultation process.”

The service did not respond to questions about the current status of the woodpecker consultation. Wannamaker, after speaking with an attorney for the U.S. Department of Justice on Oct. 27, said she thought a formal consultation for the bats was highly likely.

Wannamaker used to represent the Fish and Wildlife Service in endangered species cases in her previous role as staff attorney for Department of Justice. She offered some insights into the current situation: “It could take six months. But my guess it that it could take significantly longer because one of these species is poorly studied.” 

Another factor that could delay this process is the agencies’ own confusion.  

According to the letter obtained by The Post and Courier, a meeting took place on Sept. 12 between representatives of the Fish and  Wildlife Service, the Army Corps and “the project proponent” — presumably DI Development. The developer received the necessary permits on May 11, 2022, to fill in about 180 acres of wetlands and displace about 100 endangered woodpeckers in order to build 18,000 homes in Cainhoy.

That meeting was supposed to be about the three imperiled bat species on the property. But something likely happened then or soon after, raising additional red flags.

The Oct. 24 letter describes the service’s concerns about “inconsistencies” within the Army Corps’ own descriptions of the Cainhoy project in at least three reports between 2017 to 2023.

Project descriptions provided in an assessment dated May 22, 2017, and in the addendum dated March 19, 2018, list different acreages of impacted wetlands compared to a report dated July 7, 2023. Striking inconsistencies also exist about the amount of longleaf pine habitat there, which the woodpeckers use for nesting and the bats use for roosting.

In 2017, the biological assessment included a seven-paragraph description of the property, saying longleaf pine habitat dominates 2,850 acres. The 2023 version includes those exact seven paragraphs, nearly verbatim, but all references to the 2,850 acres of bat-loving, woodpecker-hosting longleaf pine habitat are missing. 

The service said in its letter that these discrepancies in reference to longleaf pine habitat were important in addressing concerns about both the bats and the birds.

Reopening an Endangered Species Act consultation in this way is rare, given that the status of the woodpecker has not changed since the initial consultation concluded in 2018.

The original woodpecker consultation ended with a determination that the project was “likely to adversely impact” the species but not jeopardize its existence. 

The Army Corps referenced the developer’s successful relocation of some woodpeckers from Cainhoy to another forest reserve in South Carolina as a suitable mitigation. Another mitigation that swayed the Army Corps’ approval was a 650-acre conservation easement on the property. Ultimately, the developers were granted permission to incidentally kill, if needed, 100 of the rare woodpeckers while clearing forest for new homes.

But, for now, all forest clearing is halted. 

Julie Dombrowski, a DI Development spokesperson, said she was aware of the pause in construction over bats but was not aware of a newly launched consultation over woodpeckers.  

Could this mean the death of the Cainhoy project? If the company and government experts can’t find suitable ways to mitigate the development’s impact on these four species, that’s possible. The process is many steps away from that point. 

A committee dubbed the “God Squad” has the power to resurrect projects doomed by endangered species consultations, effectively overriding the Endangered Species Act. In the last 50 years, that has happened only a handful of times.