Daufuskie Island Marina
In 1985, a permit was issued for construction of an enormous marina on Daufuskie Island, but to date the marina has not been built. The permit has been renewed several times. In 2000, the SC Coastal Conservation League attempted to have input into the renewal process, but the agency renewed the permit without notifying the League. On behalf of the League, SCELP is now challenging this renewal. Our latest appeal is pending in the South Carolina Court of Appeals.
A settlement was reached on March 9, 2004 in the Daufuskie Island case that challenged the validity of the SC Beachfront Management Act.
The case involved a suit filed against the State of South Carolina in 2002 by several Daufuskie property owners whose lots were severely eroding. They wanted to build a seawall to protect their houses, but the SC Beachfront Management Act of 1990 prohibits new seawalls. The suit claimed that the Act violated several constitutional provisions and that the prohibition on seawalls had resulted in an unlawful taking of their property. In June 2002, before we were even aware of the case, a state court judge issued an order allowing the construction of a seawall to protect the houses pending the outcome of the suit.
On behalf of the South Carolina Coastal Conservation League, Sierra Club, the South Carolina Wildlife Federation, and the League of Women Voters of Georgetown County, SCELP filed a motion to intervene in this case. The court allowed only the League to intervene, on the theory that the League could represent the interest of the other three groups.
After we moved to intervene, we spent quite a bit of time attempting to settle the case. The facts of the case did not seem favorable. All of our settlement discussions were unsuccessful and we began preparations for trial. By the time the case came up for trial on Monday, March 8, we were confident that we had an excellent chance of prevailing.
The plaintiffs in the case had asked for a jury trial, and at least some issues in the case were arguably jury issues. On Monday, we selected and empaneled a Beaufort County jury. The trial judge, Diane Goodstein of Summerville, then heard a number of pre-trial motions. When we reconvened on Tuesday to complete the motion hearings and begin the trial, Judge Goodstein allowed the parties time to talk settlement. Both sides knew that by going to trial we were "betting the farm" on the trial. If the plaintiffs won, the Beachfront Management Act would be gutted. If the plaintiffs lost, they would lose their seawall and possibly their houses.
It took all day but the judge was patient, and an agreement was finally reached. The wall built in 2002 stretches across six lots. Under the settlement, the wall will be removed from three of the lots. The wall is allowed to remain on the other three lots, and the agreement removes these three lots from the jurisdiction of the Beachfront Management Act. The lots involved in this case are at the southern tip of Daufuskie, and the plaintiffs had argued that the lots were not truly beachfront lots, but rather were riverfront lots and, thus, should not be regulated under the Beachfront Management Act. The settlement accepted their arguments as to three of the lots. An additional three lots, on the river side of the lots protected by the 2002 seawall, were also removed from the Act's jurisdiction. Those three lots have a wall that was built outside the OCRM jurisdiction before the current episode of erosion began in the 1990s.
The portion of the seawall to be removed will be torn down in 6 months, unless the plaintiffs apply for permits for one or two short groins. If a groin application is filed within 6 months, the wall will be allowed to stay until after a groin permit is issued. Any permit will require an ongoing commitment by the lot owners to perform renourishment to maintain a beach at this location.
The SC Cosatal Conservation League has agreed that it will not oppose a groin permit. The League and Sierra Club won a case several years ago in the SC Court of Appeals establishing that groins are banned by the Beachfront Management Act. However, the Act was then amended to expressly allow groins, and on further appeal of our case, the ruling of the Court of Appeals was reversed by the SC Supreme Court. Since these proposed groins are at the southern tip of South Carolina's southern-most barrier island, and because the nearest neighbor island is quite a distance away, these groins are not expected to have down-drift impacts.
Although the plaintiffs were seeking substantial money damages, under the settlement the state will pay nothing to the plaintiffs. The plaintiffs will have to remove half of a seawall that reportedly cost them a total of around $750,000.
SCELP believes that the settlement maintains the integrity of the Beachfront Management Act. The ban on seawalls is upheld by the removal of the wall from beachfront lots. The wall that remains is now outside the Act's jurisdiction. The Act gives the agency discretion as to how far the Act's jurisdiction reaches at inlets, and there are scientific and legal facts and arguments supporting the removal of the lots from jurisdiction.