Court denies DeBordieu request to lift stay
September 4th, 2019
By Tommy Howard, South Strand News
Picture a juggler performing his act. This juggler is using not three, four or five balls. Instead, he’s juggling sand and water, swimming in the surf, storms, beautiful sunsets, one of the most important marine estuaries in the country; state and federal bureaucracy, and a clouded over crystal ball.
It’s easy to imagine that something like that has gone through the minds of a judge and the various parties in a lawsuit over whether or not DeBordieu Colony can build new groins and put additional sand on the beach.
In a 15-page order Chief Administrative Law Court Judge Ralph King Anderson, III denied a request by DeBordieu Colony Community Association to lift a stay last week.
The community has obtained a permit from the S.C. Department of Health and Environmental Control (DHEC) to build three groins and renourish the beach on Debidue. Construction could not begin, however, without a permit from the U.S. Army Corps of Engineers. The Corps has not yet given its OK for the work.
Earlier, the South Carolina Coastal Conservation League and the Belle W. Baruch Foundation had filed separate requests to keep DeBordieu from building the groins and placing the sand. In May, the two requests were consolidated for hearing purposes. The South Carolina Environmental Law Project handled the case for SCCCL.
DeBordieu wants to build three groins and renourish the beach with sand along a 1.5-mile stretch of beach on Debidue Island. The sand would total about 650,000 cubic yards of beach-compatible sand. The “three permanent sheet-pile-type groins extending from ‘300 and 400 feet from the back beach/bulkhead to the low tide line’.”
In the order the judge states, “In order to secure these groins, the Permit authorizes armor stone scour aprons along both sides of all three groins at the seaward end of the structures. Each of the groins will require approximately 1,500 tons of stone placed on 5,600 square feet of marine mattresses. The Permit also requires DeBordieu to monitor the erosion surrounding the groins and to mitigate the erosion affecting Baruch’s Hobcaw property (Hobcaw), which is the adjoining property south of DeBordieu.”
Judge Anderson outlined four criteria the Coastal Conservation League and Baruch would have to meet in order for an automatic stay to remain in effect.
While the petitioners didn’t cover every point all the way, he wrote, they were also able to show that DeBordieu didn’t satisfy the court with some of the statements made.
One of the key sticking points was that the Corps hasn’t yet issued a permit for work to proceed. Because of turtle nesting on Debidue Island and other local beaches, any such work has to wait until the end of nesting season before it could be done. DeBordieu wanted to begin its construction work on the three groins and then do the beach renourishment, starting in November. Anderson ruled that he wasn’t comfortable with allowing work to begin since there is no guarantee that the Corps would issue a permit, or that it would be issued before Nov. 1. A hearing on the issue is set for February 20210.
Another element against DeBordieu is that it has to post a bond with financial guarantees that if the court ruling went against DeBordieu, the Association would be able to pay to remove the groins and the 4,500 tons of rock from the beach. That would have to be done to return the beachfront to its condition before the work began.
DeBordieu has $250,000 set aside to cover any such removal costs. Separate money is set aside for the beach renourishment project itself.
DeBordieu and its opponents disagree on how much the possible removal would cost. Anderson said that even if DeBordieu’s lower projected cost was accurate, it still would take much more than the $250,000 to do that work. A report prepared by Coastal Science and Engineering for DeBordieu said it would cost about $3.5 million to install the three groins. That works out to approximately $1.2 million per groin.
One of Baruch’s concerns is that placing the groins on Debidue Beach would alter erosion and sand drift patterns. If correct, those changes could negatively impact the marshland and the North Inlet estuary that makes up a significant part of Hobcaw’s 16,000 acres.
The two sides also provided different estimates of rates of erosion and sand drift. Anderson said that while further testimony would be necessary to get a more detailed answer, still the rate that DeBordieu asserts would cause irreparable harm in that “$250,000 is clearly not enough to cover the cost of removal of three completed groins,” Anderson wrote, if ultimately a final decision went against DeBordieu. Anderson pointed out that groins and beach renourishment are permitted activities in some circumstances. Because of the uncertainty over whether the Corps would ultimately issue a permit, the differing data offered by witnesses for each side and the lack of commitment of sufficient funds to remove the groins if the courts ultimately finds against DeBordieu, he is leaving the stay in effect.
The Coastal Conservation League looks on that as a win. Anderson also ruled that DeBordieu may continue to pursue a permit from the Corps while the parties await the mid-February hearing on the merits of the case.
Conclusion “I find Respondent DeBordieu should be allowed to proceed with obtaining a permit from the Corps. Respondent DeBordieu may also begin developing and implementing the initial aspects of the groin construction including the process of beach renourishment in anticipation of constructing the groins. However, this Court does not lift the stay to allow construction of the groins at this time. Nevertheless, at the conclusion of the merits hearing, and after the record is more fully developed regarding the nature and impact of the groins, the court may revisit this issue to determine if the stay should be lifted pending the court’s decision in this matter.”
In response to the order, SCELP Executive Director Amy Armstrong said: “Citizens and communities deserve to know whether projects that would degrade and damage our natural resources meet all of the legal requirements before construction activities proceed, not after,” Armstrong said. “In this case, we believe that the permit fails to meet the legal requirements and the groins should never be constructed.”
Coastal Conservation League Executive Director Laura Cantral said: “The court’s decision is a testament to the importance of the automatic stay.”
“In 2018, we fought at state legislature to protect the stay, a legal principle that protects the environment while citizens challenge government decisions that will forever damage their communities or natural resources,” Cantal said.” The court acknowledged that maintaining the stay in this case was in the public interest.”
“Constructing three massive groins on a stretch of fragile beach would absolutely cause irreparable harm — for downdrift beaches, for wildlife, and for one of the country’s last remaining pristine estuaries.”
“Up and down the coast and in Columbia,” Cantral said, “the Conservation League will continue to fight more attempts to meet climate change and sea level rise with hard structures that jeopardize the present and future health of our beaches.”
A statement from the Conservation League said: “The U.S. Army Corps of Engineers found that groins are “probably the most misused and improperly designed of all coastal structures.” Groins work by capturing sand as it moves down the beach through longshore transport; however, by capturing sand and holding it in place, groins act to deprive the adjacent and downdrift beaches of sand. The detrimental impacts of groins on adjacent and downdrift beach properties are well documented in scientific and regulatory literature. In 2013, after studying the effects of groins and shoreline armoring on the state’s beachfront, a DHEC Blue Ribbon Committee comprised of scientists, developers and elected officials recommended that no new groins be permitted. South Carolina law recognizes that groins interfere with natural sand transport and require special documentation that a project will not result in negative downdrift impacts before the issuance of any permit.”