Preservation Victory Over Charleston Cruise Ship Terminal

By william cook posted 09-26-2013 16:48


 Most people don’t think about cruise ships posing a problem for historic districts, but they can and do, especially when historic port cities are viewed as “niche markets” for large companies seeking to increase the demand for mega-ships. While the National Trust strongly promotes heritage tourism, cruise ship tourism can often bring severe adverse impacts that outweigh the economic benefit of bringing visitors to our historic cities. Those harmful impacts include air pollution, traffic congestion, parking, noise, and the visual intrusion of massive, looming ships blocking historic viewsheds toward the water.

 Charleston Cruise Ship
 The number of cruise ships in Charleston has increased exponentially. | Photo: National Trust

In Charleston, named in 2011 as one of the Trust’s first three National Treasures, our efforts to help protect the historic city from the effects of cruise tourism happen to overlap with a long-standing national policy issue involving the Army Corps of Engineers’ failure to comply with Section 106 of the National Historic Preservation Act. The Corps has a tradition of refusing to look outside the boundaries of its “permit area” where ground disturbance will occur when assessing the impacts of its permits on nearby historic properties. The Corps’ position has been rejected by the Advisory Council on Historic Preservation, and by a number of federal courts over the past 30 years (including early cases brought by the National Trust), but the Corps has refused to change its policy.

In Charleston, a Corps permit is needed in order for the Port Authority to carry out its plans to build a massive new passenger terminal for cruise ships on an existing dock. The Corps took the position that it needs to look no further than the mud underneath its dock in determining whether the project will have an adverse effect on historic properties.

Recently, in an important victory, the U.S. District Court in Charleston ruled that the U.S. Army Corps of Engineers failed to follow Section 106 in granting a permit to allow a massive cruise ship terminal to be built on the Charleston waterfront.  During the court hearing prior to issuing this written decision, the Court quoted the National Trust’s amicus brief, which described the Army Corps’ decision to permit the project as an “end run” around the law. The court also noted the negative effects of cruise tourism experienced in Key West, Fla., and Venice, Italy, two historic port cities that were discussed as examples of what can happen in the absence of appropriate regulations during an international symposium held in Charleston that was co-sponsored by the National Trust.

The federal court’s order means the project cannot go forward until the terminal’s impact on historic resources is taken into account. This is a significant win for preservationists not only in Charleston, but also nationwide, because it reinforces other court rulings requiring the Army Corps to take into account nearby historic properties that could be severely harmed when evaluating the impacts of proposed developments. In other words, the Army Corps cannot evade its responsibility to conduct a “meaningful review” of the project as required by the National Historic Preservation Act and other laws.

Taking a commonsense approach, the court ruled the Army Corps could not legitimately restrict its review of a proposed $35 million cruise terminal to five clusters of concrete pilings only—less than 1 percent of the overall project--and without considering any of  the impacts of the overall project. The court made it clear that it would not serve as a rubber stamp for arbitrary and capricious decisions that frustrate congressional policy, especially for what the court deemed the Army Corps’ “non-review.”  Moreover, the court found that Army Corps had violated its own permitting regulations by overly restricting the scope of its review.

View of cruise ship from Market Street. | Credit: Don’t Leave Charleston in Your Wake Facebook page
View of cruise ship from Market Street. | Credit: Don’t Leave Charleston in Your Wake Facebook page

As detailed by the court in its order, the proposed pilings have no purpose other than to support the proposed terminal’s new infrastructure and projected increase in cruise ship visits. The pilings are intended to support 108,480 square feet of new terminal space needed to serve massive ships nearly 14-stories high that hold nearly 3,500 passengers.  This would amount to an estimated 350,000 cruise passengers per year in the area immediately adjacent to Charleston’s historic districts—a 131 percent increase over the 2005-2009 five-year average and a 24 percent increase from 2012. This would more than triple the number of passengers that visited Charleston in 2010. Cruise ship opponents have argued that Charleston’s infrastructure and historic small scale simply cannot accommodate this type of tourism load, notwithstanding aesthetic blight on Charleston’s historic skyline and water views.

This ruling vindicates the National Trust’s and Preservation Society of Charleston’s consistent position throughout  the permitting process, which is that the Army Corps must consider the adverse effects of a proposed new cruise ship terminal on Charleston’s historic districts. These claims, however, have fallen on deaf ears with the Army Corps.

This ruling also has enormous policy implications nationwide because it’s an issue that arises over and over again when the Army Corps of Engineers reviews permits for all sorts of development projects that threaten to harm adjacent historic resources.

Finally, other port cities are looking to Charleston for guidance on how to manage cruise tourism appropriately. The ruling serves as a reminder that federal agencies need to consider the effects of their undertakings on historic resources and examine alternatives where adverse effects have been identified.

Needless to say, the National Trust is pleased with this outcome and grateful to our local partners, especially the Preservation Society of Charleston, for their efforts to secure this ruling, and the World Monuments Fund for helping shine the light on international cruise tourism globally.

For representative media coverage about this ruling, see this article from the Associated Press.

Will Cook is an associate general counsel at the National Trust for Historic Preservation.

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