Coastal marsh spat may reignite

FOLLY BEACH — The wooded hammock islands of the coastal marsh could be in jeopardy — again.

The S.C. Court of Appeals recently ruled that the state Department of Health and Environmental Control should have granted a permit to build a property owner’s bridge to a tract with 1 acre of high ground in the marsh off East Cooper Avenue on Folly Beach.

Environmentalists fear the ruling will allow bridges to more marsh islands. Previous restrictions on the bridges have been considered a watershed achievement of the conservation community.

The decision joins a similar recent Fripp Island ruling that finds exceptions to a law that has been repeatedly challenged in courts and fought over in the state Legislature since it was created less than a decade ago.

The court on Wednesday ruled the property “is geologically, geographically, and by legal description on, and part of, Folly Island.”

Folly Island, or Folly Beach, was one of the large coastal islands exempt from the original law because it was already developed with a bridge running to it. Without the exemption, rebuilding bridges would have been prohibited to Folly or any other beach island destination.

Marsh islands are the no man’s land of the coast, traditionally thought of as open to boaters and more than occasionally of uncertain ownership. The waters and marsh around them are public waterways.

About half of nearly 4,000 in the state are in the Charleston area.

DHEC will ask for a rehearing of the case by the appeals court — a request not often granted and an indication of just how pitched this battle is. The rehearing petition is required before the S.C. Supreme Court can be asked to hear the case.

The agency’s attorneys would not comment because the case is ongoing.

“It’s another awful opinion, in my opinion. What they’ve done is exclude any marsh island that’s off an excluded island,” said Amy Armstrong, of the South Carolina Environmental Law Project, which did not take part in the case.

The exclusion could open to bridges and development any number of other marsh islands near developed islands, said Armstrong and Nancy Vinson, the former Coastal Conservation League staffer who spearheaded the marsh island fight.

“This ruling does set a very damaging precedent, by allowing the property lines to determine if a small marsh island is treated as an island or as part of a nearby larger coastal island,” Vinson said.

The ruling “is much more narrow than that,” said attorney Chris Holmes, who is representing a Columbia woman seeking the bridge.

The tract “is not really an island,” he said.

It was separated from the Folly mainland after a canal alongside was dug in the 1940s, pooling water in the high marsh nearby. The pooled water was drained by cutting a channel across the property to the canal.

“It’s obviously not the type of ‘island’ designed to be captured by this regulation,” Holmes said.

About 2,400 of the state’s marsh islands are considered undeveloped, and access to some of them has been fought over since a developer in 1998 proposed building a bridge to Park Island in the Wando River in Mount Pleasant.

The current law doesn’t allow bridging to islands of less than 2 acres, among a number of other restrictions.

Environmentalists say preserving the islands’ habitat is important to the coastal ecosystem. Developers say limiting access infringes on property owners’ rights.

The battle has been closely fought. As recently as 2009, a developer’s plan to run a bridge from developed Peas Island to Long Island was stymied only by an S.C. Supreme Court decision.

The 140-acre Long Island is maybe the largest undeveloped island in the marshes behind Folly. It stretches behind most of the island from the causeway north.

Under the ruling, Long Island could be bridged if it could be argued to be part of Folly Island, Armstrong said.

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