South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina


Private Property vs Public Beach

Private Property vs Public Beach

Beachfront management regulation in South Carolina is over 40 years old, beginning with the Coastal Zone Management Act of 1977. "This legislation served the beaches well during its first decade, but as South Carolina became a more popular tourist destination, it became apparent that the portion of the Act that dealt with beaches was inadequate. As development crept seaward, seawalls and rock revetments proliferated, damaging the public's beach ..."

These are the opening lines of the Understanding Our Coastal Environment document available, along with other helpful but too often ignored information, on DHEC's website. In 1988, after much study and upon recommendation of the Blue Ribbon Beachfront committee, South Carolina enacted the Beachfront Management Act. Among other sound policies and rules, the Act prohibited hard erosion control devices on the beach because these structures harm and degrade the public trust beaches. In 2002 a developer and property owners on Daufuskie Island filed a lawsuit challenging the validity and constitutionality of the Act. It was the first of many attacks on the seawall prohibition and the first of many SCELP's battles to defend the public beach.

Such regulation has been under attack ever since Hurricane Hugo cleared the path to an unprecedented wave of development throughout the Lowcountry. Last summer, SC legislators took notice of DHEC's hurried implementation of the latest amendment to the 1998 legislation: Act 197 of 2016. Following the Blue Ribbon Committee's recommendation of 2013, the 2016 law prevented the more seaward (closer to the ocean) of the two jurisdictional lines delineating the extent of state permitting authority (also known as the "baseline") from ever being moved further seaward after December of 2017. DHEC's implementation led to yet another reform of the 1988 Act, mostly to improve the notification and public consultation processes.

The usual suspects also sought to eliminate the critical and hard-fought provision preventing the baseline from ever moving closer to the ocean, but ultimately the bill passed into law with the baseline movement protections, more or less, intact. Unfortunately, the 2018 “reform” introduced a couple of provisions that deny the reality of life on the coast of South Carolina: that the coastline is eroding, sea levels are rising, and major storms events are becoming more and more frequent. Instead of grappling with these uncomfortable truths, legislators buried their heads in the proverbial sand, proclaiming that we no longer have a policy of retreat from the beach, but a policy of beach “preservation.” Furthermore, major storm events are to be disregarded when delineating the primary dunes and the old, outdated baseline can be used until 2024.

At the same time, SCELP and our clients were winning two important victories against seawalls (the experimental Wave Dissipation System on Isle of Palms and Harbor Island and the proposed rebuilding of the Debidue Seawall, the seawalls and jurisdictional lines debate unavoidably collided in the most recent development on Hilton Head Island. This buried wall lies just outside of the jurisdictional baseline thanks to the above mentioned reform, which allowed the homeowners to keep the more seaward 2012 line in place.

The new era of “beach preservation” heralds a future of more walls, against all scientific evidence, sound policy and common sense. But we will not stop fighting for our public trust beaches and, as you can read in the download below, we are taking action on the recent initiative on Hilton Head.

The coastal management debate is ever less driven by the infrastructure, investment, community resilience and other adaptation needs posited by the many challenges of "living with water."

The same self-interested and short-term perspectives that propped up the idea that lines on a map, not a rising ocean, are a threat to property rights, are ready to once again advocate and lobby for seawalls and other hard structures as must-adopt measures to protect (temporarily) the few, regardless of the widely anticipated and lasting detriment to the many. Impervious to reality and only bothered by "environmental zealots," senator Golfinch reminds us that "there are people with property being protected by these revetments. We’re not taking any of that into account." In fact we have, for over 40 years, and we have learned a lesson or two in the process.

Erosion control structures represent the greatest threat to preservation of the beach. On an eroding beach, seawalls and rock revetments actually exacerbate erosion, effectively eliminating the dry sand beach.

Yet, private property cheerleaders like senator Goldfinch seem determined to prove Orrin Pilkey right.

Ultimately, beachfront property owners will favor the preservation of buildings over beaches. In fact and unfortunately, within a few decades, the battle to save the beaches in developed beachfront communities will be lost. (Orrin H. Pilkey, Linday Pilkey-Jarvis, Keith C. Pilkey, Retreat from a Rising Sea. Hard Choices in a Age of Climate Change, Columbia University Press, 2016.)

In addition to the obvious environmental and policy consequences of the most recent beachfront management developments, it is worth reminding that taxpayers, who are already shouldering the weight of ever more frequent renourishment and a subsidized and insolvent national flood insurance system, are ultimately on the hook when the next storm will cause major, additional erosion around the Hilton Head seawall and future seawalls.

Sea level rise is bringing the conflict between private property and public beaches to a boiling point and great risks lie ahead for both people and the environment. However, one thing has been certain for decades and will remain so: beach protection is in the public's best interest and it is not compatible with seawalls and hard, short term fixes.

Download available DHEC Letter 8.29.18

Download available Letter to DHEC on Hilton Head Island Seawall

Posted: Aug 8, 2018 | Page link

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