Captain Sams Spit
Captain Sams Spit, a sandy inlet at the southern end of Kiawah Island, is a highly mobile piece of land. Eroding and accreting regularly, this property is relied upon by the piping plover, diamondback terrapin, and bottlenose dolphins for nesting and/or feeding. In spite of these issues, former owner Kiawah Development Partners (KDP) and current owner South Street Partners want to build a concrete bulkhead and 50 houses on the Spit.
In 2008, legislation was introduced to Congress that would have removed federal protections from this spit of land. Thanks to the immediate response of hundreds of Conservation League members and activists, the bill was withdrawn and the Spit remains in the Coastal Barrier Resources System. This federal law identifies naturally sensitive or erosional coastal areas and discourages their development by prohibiting federal subsidies in the form of federal flood insurance and hurricane relief.
Unfortunately, this victory has not prevented the developers from moving forward with their plan to build on this volatile spit of land. In an effort to stabilize the sand spit enough to build a road, the developers sought a permit to construct a 2,783-foot concrete sloped revetment and a vertical bulkhead on public trust tidelands, which would impede the public’s use and enjoyment of this area.
The state only permitted 270 feet of the bulkhead along the parking lot at the public Beachwalker Park. Represented by the South Carolina Environmental Law Project (SCELP), we went to trial to ensure that the developer did not overturn the state’s denial of the long concrete bulkhead.
In late October 2009, KDP was given permission for a 340-foot sheet pile wall that would be buried in the sand just inland of the river and act as an erosion control device when the river reaches it, to protect a possible future road and associated utilities for future development on the spit. The US Fish and Wildlife Service and the SC Department of Natural Resources requested denial of this permit because of threatened and endangered species. We appealed the permit decision because of impacts to the wildlife and natural inlet migration.
DHEC’s Board voted to deny the developer’s request for a permit for a 340-foot long sheetpile structure, overturning their staff’s decision. In November of 2011, the SC Supreme Court ruled that KDP’s permit request for a half-mile long concrete wall along the Kiawah River side of Captain Sams Spit was improperly authorized by the Administrative Law Judge. The sole dissenter of the November 2011 decision was Chief Justice Jean Toal. Thereafter, in response to a request from KDP, three Justices agreed to “rehear” the case and revisit the 2011 Opinion.
The Supreme Court reheard the case in 2012, and issued an extremely unusual decision to reverse the 2011 decision. Then in an even more unusual move, SCELP and the League were granted another rehearing in 2013. The Court ruled against the developer in 2014, but sent the case back to the Administrative Law Court for further consideration. In December 2015, Judge Ralph K. Anderson III ruled that the full 2,783 feet of bulkhead could be built, but only 270 feet of the revetment could be built in front of Beachwalker County Park.
By this point, the latest iteration of KDP — now based in Charlotte, North Carolina and backed by a New York hedge fund — had already applied for a different permit for a new steel sheet pile wall. On behalf of the Conservation League, SCELP appealed the permit, halting any immediate KDP action on the development through a legal tool known as the “automatic stay.” Before the legal hearing even occurred, the Administrative Law Judge approved removing the automatic stay at KDP’s request, allowing construction of the steel wall along the banks of the Kiawah River to proceed. Responding quickly to the imminent danger facing the Spit, SCELP requested on behalf of the Conservation League that the South Carolina Supreme Court grant “extraordinary relief” to prevent any construction on the Spit. Fortunately, we prevailed and the Supreme Court enjoined Judge Anderson’s order.
Throughout the turmoil in court, in 2015, KDP began another legislative effort to support their plans for development on the Spit. Working with state Senator Paul Campbell (R-Berkeley) to introduce the “Kiawah Amendment,” KDP pushed to undermine coastal protections in an otherwise good bill. Without KDP’s amendment, the bill would set a permanent baseline along our entire coast — defending taxpayers, homeowners and natural resources from development too close to the ocean. The line would never again move seaward, but with continued reassessment by DHEC, could move landward in highly erosional areas. With the Kiawah Amendment, the bill would delay setting the baseline until as late as the year 2021– a stalling tactic designed to buy time while sand potentially accretes on the Spit. With more sand, the developers could potentially have room to build the road they need.
After a stalemate, the Senate ultimately voted to pass the bill and set the final baseline in December of 2017. Despite immense pressure from the developers, the House passed the same version of the bill. Governor Haley signed the bill into law in June 2016. This adds a critical safeguard to our state’s beach protection policy. It reduces the chance of development in vulnerable areas–development that puts taxpayers on the hook–while preserving the dry sand beach for all South Carolinians to enjoy. While we would have preferred that the line be set immediately (per the state’s Blue Ribbon Committee on Shoreline Management recommendation), this bill is a win.
Meanwhile, back in court: in March 2016, Administrative Law Judge Anderson confirmed his ruling that 270 feet of revetment wall could be built in front of the parking lot of the adjacent Beachwalker County Park, and also allowed the full 2,783 foot length of vertical bulkhead. SCELP filed motions to stay construction on the Spit, and unexpectedly, Judge Anderson granted our motion. SCELP also filed a notice of appeal of Judge Anderson’s Order on Remand in the Court of Appeals, while simultaneously filing a motion to transfer the appeal to the South Carolina Supreme Court. Stay tuned for updates on our court cases.