The Four Permits in Litigation
Special thanks to the stellar attorneys at the South Carolina Environmental Law Project (SCELP) who are representing us on all of these cases.
Kiawah Development Partners (KP) has five outstanding DHEC permit applications — four of which we have legally challenged. The first one is a request for a permit to build a 2,783-foot bulkhead/revetment. After this initial request, they also applied for a permit to build a 340-foot steel sheet pile wall, a community dock, and a 2,380-foot steel wall.
The 2,783-foot Bulkhead/Revetment
In 2008, KP applied for a permit to construct a 2,783-foot long, 40-foot wide concrete block revetment and bulkhead system on the river side of the Spit. Bulkhead is just a fancy way of saying seawall. The revetment is the structural component of the bulkhead that absorbs the impacts from waves. DHEC denied most of the permit request, but allowed for the construction of a 270-foot bulkhead in front of Beachwalker Park.
That decision left both sides unhappy. In 2009, the Conservation League appealed the issuance of the 270 feet of revetment/bulkhead system, and KP also filed an appeal, seeking the permit for the full 2,783-foot bulkhead/revetment. Both cases were heard in the ALC.
Things didn’t go so well in 2010. Judge Anderson reversed DHEC’s decision and granted KP permission to construct the full 2,783-foot bulkhead/revetment. We immediately filed an appeal to the Court of Appeals and requested an injunction to prevent any construction activity, and that our case be transferred to the South Carolina Supreme Court.
The Supreme Court granted our motion for injunction, temporarily preventing KP from constructing the bulkhead/revetment until the case was heard.
In November 2011, the Supreme Court issued its first decision in the case – VICTORY! The Supreme Court ruled in our favor, preventing the construction of the bulkhead/revetment.
But KP immediately filed a motion asking the Supreme Court to reconsider its decision. Oral arguments were heard a second time in April of 2012. Almost a year later, the Supreme Court completely reversed course and permitted the construction of the bulkhead/revetment.
We filed a petition for rehearing, asking the Court to reconsider its reversal. In May of 2014, the Supreme Court granted the motion for rehearing.
On December 10, 2014, the Supreme Court issued its third ruling in the case. The Court ruled that there is no public benefit to constructing an erosional structure on the Spit and that the only benefit is economic, for the developer. The Supreme Court also ruled that DHEC may consider upland impacts when assessing permit applications. The case was remanded to Judge Anderson (the ALC) for further consideration in light of its ruling. Judge Anderson conducted numerous hearings and requested briefings on several issues.
Judge Anderson then issued two orders: (1) an Order Granting the Motions for Clarification and Denying the Motions for Reconsideration; and (2) an Amended Final Order and Decision, in which he explicitly authorized the entire 2,783-foot length of the bulkhead and the 40-foot wide revetment for the 270-foot length of Beachwalker Park.
On March 23, 2016, we filed a motion asking Judge Anderson to stay his Amended Final Order and Decision authorizing the structure. On March 30, 2016, we simultaneously filed a Notice of Appeal and Motion to Transfer the matter from the Court of Appeals to the Supreme Court.
On April 15, 2016, after CCL and KP submitted written arguments, Judge Anderson issued an order preventing the construction of the vertical bulkhead he approved.
And on May 20, 2016, the Supreme Court agreed to hear our challenge to Judge Anderson’s order on remand. We presented oral arguments in the Supreme Court on September 27, 2017, and on April 18, 2018, the Supreme Court affirmed only the 270-foot bulkhead/revetment system next to Beachwalker Park, denying 2500 + feet that would run along the next of the Spit. In their unanimous opinion, the Justices cited the importance of protecting the Kiawah River shoreline along the neck of the Spit because it’s considered a public resource under the law. This ruling represents a tremendous victory in our ongoing litigation.
The 340-foot Steel Wall
Why stop with one wall when you could build two?
In 2009, KP requested a DHEC permit for the construction of another wall of sorts — a 340-foot long steel sheet pile wall (a wall that is meant to retain sand) along the neck of Captain Sams Spit — an important area because it is where a road and utilities would have to go to serve future development.
Many affected parties expressed concern over the permit application. The US Fish and Wildlife Service and the SC Department of Natural Resources requested denial of this permit because of threatened and endangered species on Captain Sams Spit. The Coastal Conservation League was concerned about the wall’s impacts to natural inlet migration and wildlife.
On October 27, 2009, DHEC staff issued the permit for the 340-foot structure.
We requested a final review conference before the DHEC Board, which was granted, to reevaluate the staff decision granting KP permission to build the wall. On January 7, 2010, the DHEC Board overturned the staff’s decision, concluding that building a wall in the dunes, as is the case on the neck of the Spit, violates the Coastal Management Program.
KP was not happy with the DHEC Board’s decision. They filed a request for a contested case hearing in the Administrative Law Court (ALC), which has been stayed pending the final outcome of the other cases involving Captain Sams Spit.
This means that, for now, the 340-foot wall cannot be constructed as the case lingers in the ALC.
The Community Dock
There’s more. In 2011, KP applied for a DHEC permit to build a 2,200 square foot community dock on the “neck” of the Spit that connects the 150-acre spit to the main body of Kiawah Island.
In 2012, we appealed the DHEC permit to the ALC, but all parties agreed to hold the challenge in abeyance pending resolution of the challenges to KP’s erosion control structures.
The 2,380-foot Steel Wall
Actually, they need three walls.
This one is longer (2,380 linear feet!) and runs the length of the Spit, adjacent to the Kiawah River, from Beachwalker Park to the other side of the Spit’s neck. In May 2015, KP requested and received permits and certifications from DHEC authorizing the construction of this steel sheet pile wall — along with a roadway, stormwater management system, water lines and utility lines.
In 2015, the Conservation League appealed the permit decisions to the ALC, staying the project until the administrative decision is heard (this is so that no irreparable harm occurs before we know whether the project is legal or not). KP filed a motion in the ALC to lift the stay so that they could proceed with the wall’s construction. Judge Anderson ruled in their favor and lifted the stay.
But we were not deterred. The day after Judge Anderson’s decision, we filed a Petition for Extraordinary Relief with the South Carolina Supreme Court, requesting an injunction to prevent irreparable harm to this critical public trust resource. The Supreme Court ruled in our favor and reinstated the stay until the case is heard in the ALC.
Our trial lasted for seven days in the ALC between August 21 – August 29, 2017. You can read SCELP’s recap of the trial here. We await the judge’s decision.
8,000 Cubic Yards of Sand
In early 2017, KP applied for a general permit to add 8,000 cubic yards of sand to the Spit to nourish a portion that experienced over a 100 foot loss of beach and dunes during Hurricane Matthew (you also can see impacts from Irma here!). At a public hearing, hundreds of citizens showed up to voice their opposition to the permit with almost 50 folks giving public comment, all requesting that DHEC deny the permit request. On October 13, DHEC authorized the permit, despite the huge opposition. However, due to language included in KP’s recent and controversial land swap transaction with the Kiawah Island Community Association, the terms of agreement state that they cannot act on this permit. We and our Kiawah members will continue to monitor this to ensure that this remains true.