South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Back To Court
June 3rd, 2020

By Gregg Bragg, The Island Connection

The Coastal Conservation League and the South Carolina Environmental Law Project are again trying to keep KDP, II, LLC from developing Sams Spit, an environmentally fragile area on the southern tip of Kiawah Island. SCELP has filed a motion in the South Carolina Administrative Law Court in an effort to prevent the developer, also known as Kiawah Partners, from moving a jurisdictional line established by the South Carolina Department of Health and Environmental Control in 2017.

The first chapter in the ongoing saga was written in June 2016, when the State Legislature passed S.139, which empowered DHEC to draw a permanent baseline beyond which development would not be permitted and which could not be moved seaward. Kiawah Partners is now seeking to change that.

In April 2018, the Supreme Court ruled against the efforts of Kiawah Partners to construct a bulkhead and revetment 2,783 feet along The Spit. The verdict overturned the decision of Administrative Law Court Judge Ralph King Anderson III, who subsequently ruled in the fall of 2018 that a sheet pile wall was substantively different than a bulkhead/revetment, once again clearing the way for development.

Kiawah Partners needs the bulkhead to support construction of a road, which would facilitate residential development at the western end of Kiawah.

South Carolina Environmental Law Project Executive Director and General Counsel Amy Armstrong characterized the idea as “a distinction without a difference,” filed a stay and won the right to present the case to the State District Supreme Court, setting the table for another decision on development of the spit. Armstrong thinks “It’s fair to say KDP’s relentless pursuit of developing the Spit has led to [the] most complicated procedure in history.” The case has proceeded apace, and hearings should have taken place in March or April of this year, but COVID-19 got in the way.

“On May 26, SCELP filed the motion to intervene on behalf of the Conservation League in the Administrative Law Court aimed at upholding DHEC’s 2017 jurisdictional line determination and preventing it from moving seaward. DHEC uses the jurisdictional lines to determine whether and what type of permit might be needed for construction activities,” reads the opening of a press release from the Coastal Conservation League.

The move, in short, would give Kiawah Partners wiggle room to construct an access road and associated infrastructure and utilities. SCELP maintains that moving the established baseline would result in the public, including Coastal Conservation League members, losing access to The Spit.

The area is one of only three publicly accessible undeveloped barrier island spits in the state and a nesting site for endangered sea turtles, diamondback terrapins, piping plovers and least terns. It is also home to one of only five pods of dolphins on the planet known to strand feed – herd bait fish onto the beach.

“Kiawah Partners is yet again seeking a workaround to implement its development plans. Their hope is this challenge to DHEC’s beachfront jurisdictional line will facilitate access to its proposed residential development, and the Conservation League cannot stand by and fail to protect the interests of its members,” said SCELP Staff Attorney Leslie Lenhardt.

“To date, SCELP and the Conservation League have secured multiple favorable rulings from the South Carolina Supreme Court over various challenges to permits associated with proposed development on The Spit. In the most recent ruling from April 2018, the state’s highest court concluded that the public benefits to preserving The Spit outweighed any private benefits to developing it,” concluded the press release.

For more information, including ways you can help, visit scelp.org and coastalconservationleague.org.

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