Coastal Management

Captain Sams Spit

For 13 years and counting, SCELP and our partners have relentlessly—and successfully—fought back against a developer's efforts to build 50 houses on this fragile and iconic sandy inlet on Kiawah Island.
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What Is Captain Sams Spit?

Captain Sams Spit is a pristine and sensitive 170-acre barrier island spit on the southern end of Kiawah Island. It is one of only three undeveloped publicly-accessible barrier islands spits in the state, and it is used by the public and endangered and important wildife species such as the piping plover, red knots, diamondback terrapins and bottlenose dolphins.

And yet, despite its natural and cultural importance, the spit is under constant threat of development.

The Legal Saga

SCELP has filed four separate challenges to permits associated with proposed development on Captain Sams Spit on Kiawah Island. These challenges include: (1) a 2,783-foot revetment and bulkhead system; (2) a community dock; (3) a 340-foot steel sheet pile wall; and (4) a 2,380-foot steel sheet pile wall.

DHEC granted Kiawah Development Partners (KDP) permits in their entirety for structures (2)-(4), but limited the permit for structure (1) to 270-feet of bulkhead/revetment in front of Beachwalker Park.

On behalf of the Coastal Conservation League (CCL), SCELP filed appeals of each of these permit decisions in the Administrative Law Court (ALC) and they were all subsequently assigned to Administrative Law Judge Ralph K. “Tripp” Anderson.

SCELP & CCL's friends and supporters at the Spit.

The Half-Mile Long Revetment/Bulkhead System

KDP applied for a permit to construct a 2,783-foot long, 40-foot wide articulated concrete block revetment and bulkhead system along the Kiawah River at Captain Sams Inlet at the south end of Kiawah Island. The revetment/bulkhead would cover nearly 3 acres of public sandy shoreline on the Kiawah River. The purpose of the revetment/bulkhead would be to stop erosion and to stabilize the shoreline so that KDP can build a road to a proposed upscale residential development on the pristine, narrow spit of land known as Captain Sams Spit.

On December 18, 2008, DHEC/OCRM denied most of the request, allowing only a 270-foot revetment along the edge of the parking lot at Beachwalker Park, the only public access on Kiawah. In early 2009, we appealed the issuance of the 270 feet of revetment/bulkhead system and sought to uphold the denial of the remaining 2,513 feet of structure. KDP also challenged the denial of the 2,513 feet of the revetment/bulkhead system.

Since that time the case has had a long, complicated history. The key issues in the case are: whether the structure violates the Coastal Zone Management Act because it would eliminate public use of and access to the sandy shoreline of the Kiawah River and only provide economic benefit to the developer; whether the revetment, which would be built on public trust tidal areas, violates the public trust doctrine; whether DHEC can consider long-range and cumulative impacts of upland development in making its permitting decisions.

Judge Anderson conducted a hearing in August 2009. On January 22, 2010, Judge Anderson reversed the denial and granted the full length of the revetment structure with some very minor limitations. We filed a motion to reconsider and for stay with the ALC on February 2, 2010. On February 26, 2010, Judge Anderson issued an Amended Final Order and an Order denying our motion for reconsideration and denying our motion for stay.

We filed an appeal in the Court of Appeals on March 26, 2010 and simultaneously filed a Petition for Supersedeas seeking an injunction to prevent any construction activity. On April 22, 2010, we filed a successful Motion to Transfer the case to the Supreme Court. The Supreme Court also granted our Petition for Supersedeas on July 23, 2010, saving the spit from further construction until the case was decided by the Supreme Court. The Supreme Court heard arguments on January 18, 2011 and issued its first opinion on November 21, 2011, which was a sweeping victory for Captain Sams Spit and for protection of our coastal resources.

KDP asked the Supreme Court to reconsider its decision and the Court held arguments for the second time on April 17, 2012. On February 27, 2013, the Supreme Court issued an extremely unusual, and very disappointing, decision completely reversing its 2011 decision. It was also unusual in that there were three separate opinions – two Justices signed the “Court’s Opinion” and one Justice concurred with the result of the Court’s Opinion, but wrote his own Opinion in which his analysis agrees with the Opinion of the dissent.

Committed to using all available legal tools to advocate against an ill-conceived project to build houses on the dynamic Spit, we quickly developed a strategy for asking the Supreme Court to “rehear” its decision. Working with Professor Robert Bockman at the USC School of Law, we filed a Petition for Rehearing on March 14, 2013, urging the Court to reconsider its reversal. We also worked with several outdoor, recreational, educational and tourism groups who filed Amicus Curiae Briefs in support of our rehearing request. On May 2, 2014, the Supreme Court notified us that it granted our Petition for Rehearing. The Court heard arguments in this case for the third time on June 5, 2014.

On December 10, 2014, the Supreme Court issued its third ruling in our fight to protect the pristine 150-acre Captain Sams Spit. The Supreme Court ruled that there is no public benefit to covering the sandy shoreline of the Kiawah River with a hard erosion control structure, that the only benefit is an economic benefit to the developer. The Supreme Court also ruled that DHEC has the authority to consider upland impacts of development that flow from critical area permit impacts. The case is a landmark decision because of its announcement that tidelands must be used for the maximum benefit to the public rather than solely benefiting a private developer; that the state must consider upland impacts naturally flowing from a proposed project; and its reverence for public access to, and use of, public trust resources.

The Supreme Court remanded the case back to Judge Anderson for consideration in light of its rulings. Judge Anderson requested numerous legal briefings and conducted several hearings between December of 2014 and December of 2015. On December 16, 2015, Judge Anderson issued an Order on Remand that appeared to authorize some erosion control structure on Captain Sams. The Order was less than clear to us, DHEC and KDP, and all three parties filed motions asking the Judge to reconsider his order. On February 4, 2016, Judge Anderson suspended his Order on Remand.

On March 22, 2016, Judge Anderson 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 impose a stay on his Amended Final Order and Decision on remand 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, after CCL and KDP submitted written arguments, Judge Anderson issued an order preventing the construction of the vertical bulkhead he approved. On May 20, 2016, the Supreme Court agreed to hear our challenge to Judge Anderson's order on remand.

On September 27, 2017, the Supreme Court heard oral arguments, and on April 18, 2018, the Court issued a resounding Opinion reversing Judge Anderson's decision to allow construction of the 2,513 feet of vertical bulkhead. This is a major victory in our overall efforts to protect Captain Sams Spit!

The Community Dock

In late 2011, while the revetment/bulkhead case was on appeal, DHEC granted KDP a permit for construction of 2,200 square feet of docking for a private community dock on the Kiawah River close to its outlet at the Atlantic Ocean. The dock is proposed to extend from land on the south end of Kiawah Island known as Captain Sams Spit. In particular, the dock is proposed for the thin “neck” of the Spit, which connects the approximately 150 acre Spit to the main body of Kiawah Island.

The parties agreed to hold the challenge in abeyance pending resolution on the challenges to KDP’s erosion control structures.

The 340-foot Steel Wall

KDP sought a stormwater permit and coastal zone consistency certification for the construction of a 340-foot long steel sheet pile wall outside of the critical area along the narrow neck of Captain Sams Spit. On October 27, 2009, DHEC staff issued the permit and certifications for the 340-foot structure.

We requested a final review conference before the DHEC Board, which was granted. On January 7, 2010, the DHEC Board issued an Order overturning staff’s decision, specifically finding and concluding that a steel sheet pile wall in the dunes outside the critical area would violate the policies of the Coastal Management Program because it would have the same long-range cumulative impacts as the structure in the critical area.

KDP filed a request for contested case hearing of the DHEC Board Order in the ALC, which was also stayed pending the final outcome of the bulkhead/revetment case.

The 2,380-foot Steel Wall

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 and you can read a summary of the proceedings here.

Judge Anderson Strikes Back - Again

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 below the full decision below. Needless to say, we intend to appeal this most recent disappointing, albeit unsurprising, decision and will do all we can to ensure that Captain Sams Spit will remain undeveloped and protected.

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.

On July 8, 2020, more than two years after our final victory on the bulkhead case, the ALC inquired about the status of the community dock case. On July 23, 2020, KDP withdrew its application for the community dock permit and the Court dismissed that case on August 6, another important victory toward the preservation of the Spit!. KDP also proposed to dismiss their appeal on the 340-foot steel wall decision, which was also stayed pending the bulkhead litigation, but we have not heard yet from the Court on this one.

These recent developments make the fight over the 2,380-foot steel wall the last major hurdle to our success. 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.

Supreme Court Reverses ALC's Authorization of Steel Wall

On June 2, 2021, we celebrated the Supreme Court's reversal of the Administrative Law Court’s approval of a 2,380-foot steel 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.”

Case Update

Great news! 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.

Read our joint press release with the Conservation League celebrating this victory.

Help us secure another (and hopefully lasting!) win for Captain Sams by donating to our fight and putting this matter to bed for good!  

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