What Is Captain Sams Spit?

Captain Sams Spit is a pristine and sensitive 170-acre barrier island spit on the southern end of Kiawah Island. It is one of only three undeveloped publicly accessible barrier islands spits in the state, and it is used by the public and endangered and important wildlife species such as the piping plover, red knots, diamondback terrapins and bottlenose dolphins.

And yet, despite its natural and cultural importance, the spit is under constant threat of development.
‍
‍

‍

The Legal Saga

SCELP has filed four separate challenges to permits associated with proposed development on Captain Sams Spit on Kiawah Island. These challenges include: (1) a 2,783-foot revetment and bulkhead system; (2) a community dock; (3) a 340-foot steel sheet pile wall; and (4) a 2,380-foot steel sheet pile wall.

DHEC granted Kiawah Development Partners (KDP) permits in their entirety for structures (2)-(4), but limited the permit for structure (1) to 270-feet of bulkhead/revetment in front of Beachwalker Park.

On behalf of the Coastal Conservation League (CCL), SCELP filed appeals of each of these permit decisions in the Administrative Law Court (ALC) and they were all subsequently assigned to Administrative Law Judge Ralph K. “Tripp” Anderson. Despite several initial rulings by Judge Anderson in favor of the developer, over the years we repeatedly brought our challenges before the state Supreme Court, which ruled over Captain Sams Spit five times! The score to date is SCELP 4, KDP 1, and the Spit remains protected. You can read a brief summary of the many hearings between 2010 and 2021 below.

However, the developer has not conceded yet, and after the Town of Kiawah Island approved an extension of the Preliminary Plat approval on Captain Sams, we opened a new legal front in August of 2022 on behalf of the nonprofit group PreserveKiawah. Read all about that case here.

Most recently, In May of 2024, the Town of Kiawah Island, Kiawah Island Community Association (KICA), and Kiawah Conservancy filed a breach of contract suit in Charleston County Circuit Court against the current owners of Captain Sams Spit for failing to fulfill their contractual obligations to take measures for the Spit’s permanent protection.

KDP II, LLC (KDP), an affiliate of Kiawah Resort Associates, L.P., currently owns the Spit and agreed to convey, deed restrict, and place conservation easements on the Spit as part of a legally binding development agreement with the Town of Kiawah Island in December of 2013. The development agreement required KDP to deed part of the Spit to KICA as community open space and to place all remaining undeveloped lands under conservation easement to be held by the Conservancy. These mandatory and unconditional obligations were required to be fulfilled prior to the expiration of the development agreement in December 2023. Read all about the latest case here.

‍

‍

The Half-Mile Long Revetment/Bulkhead System

This case has a long, complicated history. Read the full account here. The key issues in this case are:

1. Whether the structure violates the Coastal Zone Management Act because it would eliminate public use of and access to the sandy shoreline of the Kiawah River and only provide economic benefit to the developer;
2. Whether the revetment, which would be built on public trust tidal areas, violates the public trust doctrine; and
3. Whether DHEC can consider long-range and cumulative impacts of upland development in making its permitting decisions.

Judge Anderson conducted the first hearing in August 2009. Since then, he issued one order after the other in favor of the developer’s requests. Even after the matter was addressed by the Supreme Court, who had to rule in our favor twice due to a highly unusual reconsideration of the first ruling, Judge Anderson did all he could to let the bulkhead be built.

On December 10, 2014, the Supreme Court ruled that there is no public benefit to covering the sandy shoreline of the Kiawah River with a hard erosion control structure, that the only benefit is an economic benefit to the developer. The Supreme Court also ruled that DHEC has the authority to consider upland impacts of development that flow from critical area permit impacts. The case was a landmark decision because of its announcement that tidelands must be used for the maximum benefit to the public rather than solely benefiting a private developer; that the state must consider upland impacts naturally flowing from a proposed project; and its reverence for public access to, and use of, public trust resources.

The Supreme Court remanded the case back to Judge Anderson for consideration in light of its rulings. Judge Anderson requested numerous legal briefings and conducted several hearings between December of 2014 and December of 2015, and he explicitly authorized the entire 2,783-foot length of the bulkhead and the 40-foot-wide revetment for the 270-foot length of Beachwalker Park.

Needless to say, we fought back hard and in September of 2017 we were back at the Supreme Court, who on April 18, 2018 issued a resounding and definitive Opinion reversing Judge Anderson's decision to allow construction of the 2,513 feet of vertical bulkhead. This was a major victory in our overall efforts to protect Captain Sams Spit!

The Community Dock

In late 2011, while the revetment/bulkhead case was on appeal, DHEC granted KDP a permit for construction of 2,200 square feet of docking for a private community dock on the Kiawah River close to its outlet at the Atlantic Ocean. The dock is proposed to extend from land on the south end of Kiawah Island known as Captain Sams Spit. In particular, the dock is proposed for the thin “neck” of the Spit, which connects the approximately 150-acre Spit to the main body of Kiawah Island.

The parties agreed to hold the challenge in abeyance pending resolution on the challenges to KDP’s erosion control structures. On July 8, 2020, more than two years after our final victory on the bulkhead case, the ALC inquired about the status of the community dock case. On July 23, 2020, KDP withdrew its application for the community dock permit and the court dismissed that case on August 6 - another important victory toward the preservation of the Spit.

The 340-foot Steel Wall

KDP sought a stormwater permit and coastal zone consistency certification for the construction of a 340-foot long steel sheet pile wall outside of the critical area along the narrow neck of Captain Sams Spit. On October 27, 2009, DHEC staff issued the permit and certifications for the 340-foot structure.

We requested a final review conference before the DHEC Board, which was granted. On January 7, 2010, the DHEC Board issued an Order overturning staff’s decision, specifically finding and concluding that a steel sheet pile wall in the dunes outside the critical area would violate the policies of the Coastal Management Program because it would have the same long-range cumulative impacts as the structure in the critical area.

KDP filed a request for contested case hearing of the DHEC Board Order in the ALC, which was also stayed pending the final outcome of the bulkhead/revetment case. Our long-fought victory on that permit made this challenge moot.

The 2,380-foot Steel Wall

Although not as much as for the revetment/bulkhead permit, this case has also had a long, complicated history and ended with a resounding victory before the state's highest court. For a full recap, click here.

On May 28, 2015, KDP received permits and certifications from DHEC authorizing the construction of 2,380 linear feet of a vertical steel sheet pile wall, along with a roadway, stormwater management system, water lines and utility lines. The wall would be driven into the sand adjacent to the bank of the Kiawah River, but landward of the critical area, extending from Beachwalker Park, across the neck of the Spit and continuing down nearly a half mile.

The path to winning this case started with a fierce battle over the automatic stay that prevented KDP from moving forward with the project on the basis of DHEC's permit, while our appeals were pending (Judge Anderson did lift the stay but was yet again overruled by the Supreme Court, in case you wondered. Next came a 7-day trial in 2017 before Judge Anderson. The ruling was of course in favor of the developer and yet again we found ourselves defending Captain Sams Spit before the Supreme Court.

On March 23, 2021, the South Carolina Supreme Court heard our arguments on why an eroding stretch of beach leading out to the spit is no place to build a 2,380-foot steel wall, along with a roadway, stormwater management system and utility lines.

On June 2, 2021, we celebrated the Supreme Court's reversal of the Administrative Law Court's approval of the steel wall. The unanimous ruling reaffirms that "the public's interest must be the lodestar" when adjudicating matters affecting tidelands. Artificial modification must remain the "exception" for resources owned by the State and held in trust for the benefit of the public, according to the public trust doctrine. The ALC analysis is found “largely illusory” with respect to the alleged protection of the Beachwalker parking lot and, given the undisputed shoreline erosion on the riverbank, construction of the steel wall would lead to the same outcome the Supreme Court tried to avoid with its first ruling in 2014: “the complete loss of area held in trust for the benefit of the people.” Therefore, all the Justices agreed with us and expanded on an important precedent by stating that “while economic interests are relevant, relying on tax revenue or increased employment opportunities is not sufficient justification for eliminating the public's use of protected tidelands.”

The state Supreme Court finally issued an order on September 1, 2021 denying KDP’s petition to rehear the case, stating: “After careful consideration of the petition for rehearing, the Court is unable to discover that any material factor principle of law has been either overlooked or disregarded, and hence, there is no basis for granting a rehearing."

‍Help us secure another (and hopefully lasting!) win for Captain Sams by donating to our fight and putting this matter to bed for good!