On May 28, 2015, KDP received permits and certifications from DHEC authorizing the construction of 2,380 linear feet of a vertical steel sheet pile wall, along with a roadway, stormwater management system, water lines and utility lines. The wall would be driven into the sand adjacent to the bank of the Kiawah River, but landward of the critical area, extending from Beachwalker Park, across the neck of the Spit and continuing down nearly a half mile.
On August 5, 2015, we filed a request for contested case hearing before the ALC to appeal DHEC’s decisions. Under South Carolina law, this appeal stays the DHEC decision and prevents the developer from moving forward with construction until after a hearing when a final administrative decision is rendered. On September 18, 2015, KDP filed a motion to lift the automatic stay asking the ALC to allow it to proceed with construction of the 2,380 linear feet of steel sheet pile wall. We filed a response objecting to the motion and a hearing was held on October 16, 2015.
On November 4, 2015, Judge Anderson issued an Order Lifting the Automatic Stay. The very next day, on November 5, 2015, we filed a Petition for Extraordinary Relief with the Supreme Court requesting an injunction to prevent irreparable harm to this critical public trust resource. In a 3-2 decision, the majority of the Court agreed with us that construction should not be permitted to move forward until our challenge to those development permits is heard and finally ruled on by a judge.
We had a 7-day trial between August 21 and August 29, 2017. After seven long and grueling days of presenting testimony and evidence, we concluded the trial over whether DHEC should have issued permits authorizing the construction of a steel wall, road and other infrastructure through the narrow neck of Captain Sams Spit in order to allow development on this ever-changing piece of sand.
Our case took the first five days and the developer’s case took the remaining two days. DHEC did not present any witnesses.
In sum, we presented evidence that the Department failed to consider the following long-range and cumulative impacts:
(1) the unstable and dynamic nature of the Spit and the fact that these unstabilized inlet erosion zones are the most hazardous places to build;
(2) the fact that the sheetpile wall will become completely exposed, eliminating public recreational use and resulting in the loss of a prime feeding area for Bottlenose Dolphin and loss of access to prime nesting habitat for Diamondback Terrapins;
(3) impacts to threatened and endangered shorebird species like Piping Plovers and Red Knots; and
(4) the fact that tidelands critical area would have to be filled and impacted in order to construct the access road and associated infrastructure.
On September 24, 2018, Judge Anderson issued a ruling authorizing the construction of a road, steel sheetpile wall, and other infrastructure that would support the development. After more than a year, and ignoring once more the clear direction from the Supreme Court, the Judge concluded that the “economic benefits of developing the upland” outweigh preservation of the riverbank and Spit, authorizing the project to proceed.
You can read the full decision below. Needless to say, we fought back.
In August 2019, the South Carolina Supreme Court agreed to hear our latest round of appeals over the proposed 50 house development on Captain Sams Spit. We expect to finish submitting our written legal briefs in early 2020.
In August 2020, we filed our final briefs with the Supreme Court, laying out all our legal arguments before the Court.
On March 23, 2021 the South Carolina Supreme Court heard our arguments on why an eroding stretch of beach leading out to the Spit is no place to build a 2,380-foot steel wall, along with a roadway, stormwater management system, water lines and utility lines.
On June 2, 2021, we celebrated the Supreme Court's reversal of the Administrative Law Court’s approval of a 2,380-footsteel sheet pile wall. The unanimous ruling reaffirms that “the public’s interest must be the lodestar” when adjudicating matters affecting tidelands. Artificial modification must remain the “exception” for resources owned by the State and held in trust for the benefit of the public, according to the public trust doctrine. The ALC analysis is found “largely illusory” with respect to the alleged protection of the Beachfront Walker parking lot and, given the undisputed shoreline erosion on the riverbank, construction of the steel wall would lead to the same outcome the Supreme Court tried to avoid with its first ruling in 2014: “the complete loss of area held in trust for the benefit of the people.” Therefore, all the Justices agreed with us and expanded on an important precedent by stating that “while economic interests are relevant, relying on tax revenue or increased employment opportunities is not sufficient justification for eliminating the public's use of protected tidelands.”
“This is a resounding victory for the protection of Captain Sams Spit and the public,” said Amy Armstrong of SCELP. “It not only vindicates the efforts of so many years for preserving this state treasure—one of the three pristine beaches readily accessible to the general public—but it also reinforces the protections provided under the Critical Zone Management Act. The Court rules that any known impact to tidelands, coastal waters, beaches and dunes including from projects out of such critical area must be considered to provide maximum public benefit. When balancing competing interests in these dwindling public trust resources, public beneficial uses must be prioritized.”
Dulcis in fundo, the state Supreme Court issued an order on September 1,2021 denying KDP’s petition to rehear the case, stating: “After careful consideration of the petition for rehearing, the Court is unable to discover that any material fact or principle of law has been either overlooked or disregarded, and hence, there is no basis for granting a rehearing.”
The Supreme Court’s unanimous decision on June 2 reversed the Administrative Law Court’s authorization of a 2,380-foot steel sheet pile wall and other infrastructure that would facilitate construction of a 50-unit private development on the barrier island spit. The Court slightly modified its ruling and filed a new opinion on September 1, authored by Justice Kaye Hearn, which emphasized that Captain Sams Spit is one of only three pristine and publicly accessible barrier island beaches in the state, and South Carolina’s laws are designed to protect these valuable public trust resources so that people can enjoy and recreate upon them.
