Victory in Captain Sam's Spit Case!

Posted on 2/12/11

On November 19, 2011, the South Carolina Supreme Court issued its opinion reversing the decision of an Administrative Law Judge (ALJ) which would have allowed the construction of a half-mile long concrete block wall, known as a revetment, along the shores of the Kiawah River at Captain Sam’s Spit. The case began with a request from Kiawah Development Partners to construct a 2,783' long by 40' wide revetment to facilitate a residential development on the approximately 150 acre pristine Spit. The revetment would cover 2.63 acres of the sandy banks of the Kiawah River, which is widely used by the public for fishing, picnicking, landing kayaks, and other recreational activities. The Spit itself is one of the few remaining barrier island spits in the State that is natural and untouched by human development.

The S.C. Department of Health and Environmental Control (DHEC) denied a majority of the structure, but authorized 270' of the wall. On behalf of the S.C. Coastal Conservation League, SCELP challenged that decision and KDP challenged the denial of the remaining 2,500' of wall. A trial was conducted during a week in August 2009, with Judge Ralph King Anderson, III, issuing his decision to authorize the full length of the structure on January 22, 2010.

SCELP and DHEC appealed the ALJ’s decision to the S.C. Court of Appeals. SCELP simultaneously filed a motion to transfer the case to the Supreme Court and asking the Court to impose an order preventing construction of the bulkhead/revetment until the Court issued an opinion. The Court heard arguments on January 18, 2011 and issued its opinion on November 21, 2011. The Court’s opinion is a sweeping victory for Captain Sam’s Spit and for protection of our coastal resources.
The Supreme Court ruled that the ALJ’s decision contained “numerous errors of law.” The Court explained that the S.C. Coastal Zone Management Act requires that high priority be given to protecting "natural systems in the coastal zone” and that coastal areas such as this be used to “ensure the maximum benefit to the people, but not necessarily a combination of uses which will generate measurable, maximum dollar benefits.” DHEC is required “to ensure the continued use of tidelands, submerged lands, and waters for public purposes,” and the public purpose and interest “encompasses that of the entire Spit, and the surrounding coastal zone.” The regulations demand denial of a structure like this that will have “any adverse effect on public access,” unless one of two exceptions apply – neither of which apply in this case.

The Court ruled that “by law, OCRM must take into account the impact of any critical area permit on upland sprawl, general overdevelopment, and pristine habitats.” This powerful language will be useful in future cases where permits are issued that would effect pristine areas or allow overdevelopment and sprawl in environmentally sensitive coastal areas. You can read the Court’s full opinion at http://www.sccourts.org/opinions/displayOpinion.cfm?aseNo=27065