South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Beaches: Bills call halt to retreat from the shoreline
February 15th, 2018

By Charles Swenson, Coastal Observer

A bill moving through the state legislature would overturn the state’s policy of retreating from the shoreline. “I no longer trust the process,” said state Rep. Lee Hewitt of Murrells Inlet, who introduced the measure to change the way the state determines its jurisdiction over the beachfront.

But environmental groups and a coalition of beachfront communities want the state to fix the seaward limit of that jurisdiction as recommended by a blue-ribbon committee. “The point is, we don’t want to move jurisdictional lines closer to the ocean,” said Amy Armstrong, executive director of the S.C. Environmental Law Project. “That signals that it’s safe.”

In October, the state Department of Health and Environmental Control issued maps showing proposed changes in its jurisdiction: The “baseline” marks the crest of the primary dune and the “setback line” that estimates the extent of erosion over 40 years. The state Office of Ocean and Coastal Resource Management, a division of DHEC, has jurisdiction over the area between the lines and seaward of the baseline. The lines were scheduled to take effect on Dec. 31 and, by law, the revision was the last time the lines would move seaward.

On the southern ends of Pawleys Island and Litchfield Beach and part of Garden City, the proposed baseline moved behind the existing front-row houses. Those houses could be rebuilt if destroyed and new houses up to 5,000 square feet could be built on vacant lots seaward of the baseline, but they would require a special permit.

Hewitt led the effort to get DHEC to delay implementation of the new lines so property owners would have time to review them and respond. Under the current law, only the owners can appeal the lines. Under Hewitt’s bill, and a companion bill introduced by Sen. Chip Campsen, local governments or community associations could appeal on behalf of property owners.

The bill also prevents DHEC from using data collected within two years after “extraordinary erosion” caused by a named storm to determine the baseline and setback lines. (The Senate bill requires a year’s delay.) Some data used for the revision was collected after Hurricane Matthew in 2016. “It’s obvious that storms impact the beach,” Hewitt said. “That data that was collected had to be collected after Matthew” to meet the statutory deadline for setting the new lines.

Armstrong, who testified on the Senate bill, said bills are vague about what sort of impact would trigger a delay. There has been a named storm in each of the last three years. “You’re not ever going to be able to collect data,” she said. “We’re going to bury our head in the sand and not pay attention to what happens on the ground.”

The most troubling part of the bills is their removal of a provision that would fix the seaward limit of the baseline, Armstrong said. “If they’ve lost confidence in the process, let’s go back to 2011 when they last set the lines,” she said. “They’re done and it’s settled.”

Pawleys Island Town Council this week adopted a resolution asking that the bills be amended to fix the seaward limit of the baseline. That was based on a recommendation from the S.C. Beach Advocates. The group supports using the 2011 jurisdictional lines, something that was proposed by the blue-ribbon committee and overturned by the legislature.

Under the proposed revisions, the baseline would have moved seaward on 600 to 800 lots, Hewitt said. The delay in adopting those lines means the owners won’t get the benefit of the shift. That was one reason for removing the prohibition, he said.

But Hewitt said he believes the process used to set the lines is flawed because in 1993, without legislative approval, DHEC changed the way it defined the primary dune used to establish the baseline. The new definition specified a dune 36 inches high and extending uninterrupted for 500 feet. “I’ve lost confidence in the process because they just went out and did something,” he said. “How did that affect the dune?”

His bill keeps that definition, but allows for minor variations. It adds a second definition that Hewitt said follows one used by the Federal Emergency Management Agency of a dune with a “relatively steep slope” that isn’t generally subject to tidal erosion.

For the setback line, the bill keeps the current definition of a distance 40 times the annual erosion rate, with a 20-foot minimun distance from the baseline, but adds a requirement to consider “long term commitments to beach renourishment.”

“You’re telling DHEC to look into a crystal ball,” Armstrong said. “The way the process is done right now is based on scientific information. You can’t incorporate something that’s hypothetical.”

She also defended the current definition of the primary dune, saying that the agency had the authority to develop regulations based on the statute. “There’s no evidence the methodology isn’t meeting the goals,” Armstrong said.

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