South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Chronicle of the Most Recent, 7-day Trial to Save the Spit
Posted: September 8, 2017

After seven long and grueling days of presenting testimony and evidence, we concluded the trial over whether DHEC should have issued permits authorizing the construction of a steel wall, road and other infrastructure through the narrow neck of Captain Sams Spit in order to allow development on this ever-changing piece of sand. This is the so called "2,380-foot Steel Wall" challenge in the multifaceted and ongoing legal saga to save the Spit from the construction of 50 houses.

Our case took the first five days and the developer’s case took the remaining two days. DHEC did not present any witnesses.

The Coastal Conservation League’s Dana Beach started off the case by telling the court about the spit’s intrinsic values. Dana highlighted the unique nature of this dynamic and shifting sandy spit, which provides incredibly valuable habitat for a host of wildlife including piping plovers, red knots, diamondback terrapins, dolphins and sea turtles. In addition, the spit is publicly-accessible and is a haven for recreational activities like kayaking, paddle boarding, and fishing. League members George Merriwether, George Finly, Sidi Limehouse and Rich Thomas provided specific testimony about their personal use and enjoyment of the spit and the banks of the Kiawah River. Dr. Miles Hayes – the grandfather of coastal geology – testified about the early work he conducted in reviewing and assessing the geologic history of the Spit. In the mid-70s, Dr. Hayes examined shoreline data from 1661 through the present and concluded that the Spit had been breached – entirely eroded away – at least three times in recorded history. Due to the unstable and dynamic nature of the Spit, he concluded in the published Environmental Inventory of Kiawah Island that Captain Sams Spit should never be developed.

We also presented an all-star team of expert witnesses. Dr. Rob S. Young, Director of the Program for the Study of Developed Shorelines, echoed Dr. Hayes’ initial work, explaining that any development on the spit is unwise because the ends of barrier islands at inlets are the most dynamic and unstable places on the coast. Such inlet erosion zones are susceptible to swift and drastic changes, which means development would literally be built right in harm’s way. As we see more frequent and more extreme weather events, the harm from such events becomes even more pronounced. Dr. Young also explained that the steel wall would eventually become completely exposed in the critical area as a result of the ongoing erosion. Once the wall is exposed, the high velocity water will continually beat against the wall, causing scour at the base of the wall. Eventually, the sandy beaches along the Kiawah River will be completely lost and only the wall will be visible, even at low tide. Dolphins will no longer be able to strand feed on the banks. Kayakers and paddle boarders will no longer be able to pull up on the banks. All recreational and habitat uses will be gone.

Dr. Whit Gibbons, Professor Emeritus of Ecology at the University of Georgia, testified regarding Diamondback Terrapins. Dr. Gibbons has been studying terrapins at Kiawah Island for nearly 30 years, and opined that the development activities authorized by the permits will have severe adverse impacts on terrapins. Specifically, Dr. Gibbons explained that the sandy dunes along the spit are the prime nesting habitat for terrapins, but that terrapins cannot scale a vertical sheetpile wall, which will result in an inability to reproduce. He further explained that even if a terrapin could access the sandy dunes, she would need to cross over the road and the baby terrapins would need to cross back over the road, which is known to lead to mortality.

Dr. Rob F. Young, Professor of Marine Science at Coastal Carolina University, testified regarding Bottlenose Dolphin – a species which he has researched for many years. In collaboration with the National Oceanic and Atomospheric Administration (NOAA), who has been conducting research on strand-feeding behavior of Bottlenose Dolphins, Dr. Young explained that if the permitted project proceeds, one of the dolphins’ prime stand-feeding areas will be eliminated. When an important source of food is eliminated, the dolphins are forced to adapt to this loss, which is stressful on the marine mammals and sometimes results in an inability to secure sufficient replacement feeding areas. Captain Chad Hayes’ testimony that the dolphins rely daily and heavily on the banks of the Kiawah River in the location of the proposed sheetpile wall for strand-feeding was uncontested. In other words, loss of the shoreline from the sheetpile wall would harm the dolphins’ ability to feed, as well as eliminate the ability of the nature-loving public to observe this natural phenomena.

Dr. Richard Porcher – author of books on South Carolina botanical and cultural resources and Professor Emeritus in the Biology Department at The Citadel – testified as an expert in botany. Dr. Porcher explained that he became concerned about the proposed development on a routine visit to the Spit where he observed an absence of a beach community and scarping of the dunes on the oceanfront side of the Spit. The scarping was evidence that erosion was occurring on the front beach, even before Hurricane Matthew – after which the Spit lost between 100-150 feet of beach, including the primary dune and portions of the secondary dune. Dr. Porcher explained that upon viewing the development plans, he become concerned that the portions of the lot and the access road would be underwater based upon his site visits. Dr. Porcher discussed his site visits, many of them conducted with Celie Daily, who works closely with him documenting his findings. During these site visits, Ms. Daily and Dr. Porcher took measurements including the height of the water and GPS location, along with photographs. Using this data, google earth images were created to demonstrate that high tides carry water far up into the internal areas of the Spit, and specifically into the area where the proposed road would be located.

Our other expert was Alan Wood, a professional wetlands scientist, who conducts surveys of “critical areas” in order to delineate the boundaries between uplands and tidelands. Mr. Wood conducted a critical area boundary line survey along the eroding shoreline of the Kiawah River in the location of the proposed 2,380-foot sheetpile wall. As expected, the river shoreline has continued to erode, so much so that the tidelands critical area now reaches the oceanfront setback line, which sets the limits for construction. In other words, no buildable space between the river and ocean exists in some locations along the neck. According Mr. Wood’s testimony, and confirmed by DHEC’s Curtis Joyner, a road and wall could not be built in the permitted location without impacting critical area tidelands, for which the developer does not have approval.

Curtis Joyner admitted that the DHEC Board had directed staff not to consider long-range and cumulative impacts of the project, despite the fact that the staff is legally required to consider these impacts for consistency with the Coastal Management Program. Bill Eiser, who formerly worked at DHEC’s Office of Ocean and Coastal Resource Management also testified under subpoena regarding the factors he considered when he conducted his review of the bulkhead/revetment permit which is now pending before the Supreme Court for a 4th time. He considered the general character of the area to be pristine and untouched, while the new decision considers the character of the area as developed. Mr. Eiser also testified about the impacts to threatened and endangered species that he considered, including opinions from resource agencies, as well as the historical breaches experienced at the neck of the Spit in conducting his long-range and cumulative impacts assessment.

DHEC did not call any witnesses to testify in defense of its authorizations.

KDP II, Inc. and KRA Development, LLC (the developer) called several witnesses on its behalf. Townsend Clarkson and Ray Pantlick testified as CFO and director of development, respectively, on the permitting process and the anticipated income from the project. Mr. Clarkson stated that the sale of 50 lots (without houses) is expected to generate approximately $200 million in revenue for the developer.

Dr. Tim Kana, a coastal geology consultant who runs Coastal Science and Engineering, testified regarding the nature and character of the Spit. Dr. Kana opined that the Spit is growing and robust – one of the healthiest beaches in the State – and this is very unlikely to experience a breach at the neck. He also testified that periodic inlet relocation projects have been successful and, as a result, diminished the possibility of a breach at the neck.

Mark Permar, who has done long-range planning for the developer for nearly 3 decades, testified that the developer has always implemented “environmentally-sensitive” designs. He testified that the development of Captain Sams Spit would be conducted in an environmentally-sensitive manner. The developer’s engineer, Rick Karkowski, testified about the “environmentally-sensitive” design through utilization of “low impact development” or “LID. Such measures include Best Management Practices for handling stormwater like silt fences and buffers, although Mr. Karkowski conceded that those measures are required under state law in order to obtain a stormwater permit.

The developer’s “star” witness was Dr. Travis Folk. Dr. Folk was qualified very broadly to give opinions in the field of “wildlife science.” Dr. Folk is the Vice Chair of the board of SC Chapter of The Nature Conservancy and while he could not remember how much he had been paid for his expert testimony, he agreed that it was at least $5,000. Dr. Folk testified that he is able to form opinions about the impacts of a proposed project on virtually any wildlife species – from Diamondback Terrapins to Piping Plovers to Bottlenose Dolphins to Silverback Gorillas – based solely on a literature review. Dr. Folk’s opinion is that the proposed development project will have absolutely no adverse impact on Diamondback Terrapins, Loggerhead Sea Turtles, Piping Plovers, Bottlenose Dolphins or any other federally threatened or endangered species using the Spit.

In sum, we presented evidence that the Department failed to consider the following long-range and cumulative impacts:

(1) the unstable and dynamic nature of the Spit and the fact that these unstabilized inlet erosion zones are the most hazardous places to build;
(2) the fact that the sheetpile wall will become completely exposed, eliminating public recreational use and resulting in the loss of a prime feeding area for Bottlenose Dolphin and loss of access to prime nesting habitat for Diamondback Terrapins;
(3) impacts to threatened and endangered shorebird species like Piping Plovers and Red Knots; and
(4) the fact that tidelands critical area would have to be filled and impacted in order to construct the access road and associated infrastructure.

That evidence will be weighed by Administrative Law Judge Ralph King (“Tripp”) Anderson, III. Judge Anderson has already twice ruled in favor of permits (specifically the 2,870-foot bulkhead/revetment permit along the neck of the Spit) for the developer and against the public interest in use and enjoyment of this special resource; however, we remain optimistic that our overall efforts to protect the Spit from this unwise and dangerous development will ultimately be successful.

SCELP and CCL's teams managed to enjoy, briefly, the total solar eclipse in Columbia, the first day of trial