Captain Sams Spit
SCELP is currently involved with 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 has 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.
The Half-Mile Long Revetment/Bulkhead System
KDP applied for a permit to construct a 2,783-foot long, 40-foot wide articulated concrete block revetment and bulkhead system along the Kiawah River at Captain Sams Inlet at the south end of Kiawah Island. The revetment/bulkhead would cover nearly 3 acres of public sandy shoreline on the Kiawah River. The purpose of the revetment/bulkhead would be to stop erosion and to stabilize the shoreline so that KDP can build a road to a proposed upscale residential development on the pristine, narrow spit of land known as Captain Sams Spit.
On December 18, 2008, DHEC/OCRM denied most of the request, allowing only a 270-foot revetment along the edge of the parking lot at Beachwalker Park, the only public access on Kiawah. In early 2009, we appealed the issuance of the 270 feet of revetment/bulkhead system and sought to uphold the denial of the remaining 2,513 feet of structure. KDP also appealed challenged the denial of the 2,513 feet of the revetment/bulkhead system.
Since that time the case has had a long, complicated history. The key issues in the case are:
- 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;
- whether the revetment, which would be built on public trust tidal areas, violates the public trust doctrine;
- whether DHEC can consider long-range and cumulative impacts of upland development in making its permitting decisions.
Judge Anderson conducted a hearing in August 2009. On January 22, 2010, Judge Anderson reversed the denial and granted the full length of the revetment structure with some very minor limitations. We filed a motion to reconsider and for stay with the ALC on February 2, 2010. On February 26, 2010, Judge Anderson issued an Amended Final Order and an Order denying our motion for reconsideration and denying our motion for stay.
We filed an appeal in the Court of Appeals on March 26, 2010 and simultaneously filed a Petition for Supersedeas seeking an injunction to prevent any construction activity. On April 22, 2010, we filed a successful Motion to Transfer the case to the Supreme Court. The Supreme Court also granted our Petition for Supersedeas on July 23, 2010, saving the spit from further construction until the case was decided by the Supreme Court. The Supreme Court heard arguments on January 18, 2011 and issued its first opinion on November 21, 2011, which was a sweeping victory for Captain Sams Spit and for protection of our coastal resources.
KDP asked the Supreme Court to reconsider its decision and the Court held arguments for the second time on April 17, 2012. On February 27, 2013, the Supreme Court issued an extremely unusual, and very disappointing, decision completely reversing its 2011 decision. It was also unusual in that there were three separate opinions – two Justices signed the “Court’s Opinion” and one Justice concurred with the result of the Court’s Opinion, but wrote his own Opinion in which his analysis agrees with the Opinion of the dissent.
Committed to using all available legal tools to advocate against an ill-conceived project to build houses on the dynamic Spit, we quickly developed a strategy for asking the Supreme Court to “rehear” its decision. Working with Professor Robert Bockman at the USC School of Law, we filed a Petition for Rehearing on March 14, 2013, urging the Court to reconsider its reversal. We also worked with several outdoor, recreational, educational and tourism groups who filed Amicus Curiae Briefs in support of our rehearing request. On May 2, 2014, the Supreme Court notified us that it granted our Petition for Rehearing. The Court heard arguments in this case for the third time on June 5, 2014.
On December 10, 2014, the. Supreme Court issued its third ruling in our fight to protect the pristine 150-acre Captain Sams Spit. 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 is 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. On December 16, 2015, Judge Anderson issued an Order on Remand that appeared to authorize some erosion control structure on Captain Sams. The Order was less than clear to us, DHEC and KDP, and all three parties filed motions asking the Judge to reconsider his order. On February 4, 2016, Judge Anderson suspended his Order on Remand.
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.
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 has also been stayed pending the final outcome of the bulkhead/revetment case
The 2,380-foot Steel Wall
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.
On August 5, 2015, we filed a request for contested case hearing before the ALC to appeal DHEC’s decisions. Under South Carolina law, this appeal stays the DHEC decision and prevents the developer from moving forward with construction until after a hearing when a final administrative decision is rendered. On September 18, 2015, KDP filed a motion to lift the automatic stay asking the ALC to allow it to proceed with construction of the 2,380 linear feet of steel sheet pile wall. We filed a response objecting to the motion and a hearing was held on October 16, 2015.
On November 4, 2015, Judge Anderson issued an Order Lifting the Automatic Stay. The very next day, on November 5, 2015, we filed a Petition for Extraordinary Relief with the Supreme Court requesting an injunction to prevent irreparable harm to this critical public trust resource. In a 3-2 decision, the majority of the Court agreed with us that construction should not be permitted to move forward until our challenge to those development permits is heard and finally ruled on by a judge.
We are continuing to move forward with this case in preparation for trial, which has not yet been scheduled.
In the Revetment/Bulkhead case, on March 22, 2016, Judge Anderson issued two orders: (1) an Order Granting the Motions for Clarification and Denying the Motions for Reconsideration; and (2) an Amended Final Order and Decision, in which 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.
On March 23, 2016, we filed a motion asking Judge Anderson to impose a stay on his Amended Final Order and Decision on remand authorizing the structure. On March 30, 2016, we simultaneously filed a Notice of Appeal and Motion to Transfer the matter from the Court of Appeals to the Supreme Court.
On April 15, after CCL and KDP submitted written arguments, Judge Anderson issued an order preventing the construction of the vertical bulkhead he approved. And on May 20, 2016, the Supreme Court agreed to hear our challenge to Judge Anderson's order on remand. We are hopeful that the Supreme Court will again affirm protections for this special resource.