South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Kiawah River erosion clips Beachwalker Park parking lot; environmentalists ask for new Capt. Sam’s Spit hearing
March 19th, 2013

The eroding bank of the Kiawah River tore a small chunk from the Beachwalker Park parking lot over the weekend — a sign of the fragility of the battled-over environs of Capt. Sam’s Spit.

Meanwhile, the S.C. Environmental Law Project has petitioned the state Supreme Court to rehear the case over a proposed sea wall for a road planned from that parking lot to a proposed 50-home development on the spit. The court rarely rehears cases, and rehearing this one would be even less likely, but it has some chance, a law professor says.

The two occurrences are the latest twists in a two-year battle over the fate of Capt. Sam’s, a wildlife-rich, 150-acre spit that is a prized piece of disappearing natural coast.

Eleven parking spots at the popular Beachwalker Park adjacent to the spit have been fenced off as a precaution after erosion began undermining the most vulnerable point of the lot.

“That part of the river is eating into the bank,” said Phil Macchia, operations director for the Charleston County Park and Recreation Commission. The commission is looking into how it can shore up the bank there and reopen the spots, he said.

Kiawah Development Partners has submitted preliminary plans to build 50 homes on the spit. The road to that development has been planned to connect with a sand track along the bank at the parking lot’s far end, where the access road would cross the neck. The neck is narrower than points on Ocracoke and Hatteras Islands in North Carolina, where a state road regularly overwashes and was breached during recent hurricanes.

A sea wall is planned to shore up the road along that eroding riverbank at the neck.

Environmentalists and community groups have fought for two years to stop the wall, which would be built along a stretch of riverbank where dolphins regularly strand feed — driving schools of bait fish onto the beach and jumping after them to eat. The behavior is found almost nowhere else but the Southeast coast.

In February, Supreme Court justices upheld a lower court ruling that allows the wall to be built. The 3-2 ruling was a turnaround from a 4-1 Supreme Court decision in 2011 that overruled a lower court’s approval of a permit for the wall.

The court might be less likely to grant the rehearing because the February ruling was itself a rehearing of an earlier case, said Billy Want, a Charleston School of Law professor who specializes in environmental law. But the new petition still has some chance, he said, because of the importance of the issue — regarding the state’s ability to balance public and private interests regulating projects in critical areas of the coast — and the closeness of the February vote.

The petition for rehearing argues:

The difference from earlier decisions and the differences of opinion among justices will create confusion for subsequent cases.

The ruling erodes the authority of the S.C. Department of Health and Environmental Control.

The ruling upsets provisions in the law that favor public benefit.

Kiawah Development Partners declined to comment on the petition.

The project filed the petition on behalf of the Coastal Conservation League.

“I think we do have a chance, and the spit and the Kiawah River are such important public resources that the (league) wants to use all available legal tools to protect it,” said Amy Armstrong, the project’s executive director.

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