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SC Supreme Court mulls danger of future erosion and development of Captain Sam's Spit

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Captain Sam's Spit is pictured in September 2017. A year after a state Supreme Court decision stopped developers from building 50 homes on Captain Sam's Spit, conservationists are appealing the town of Kiawah Island's decision to grant developers an extension to update their plans. File/Jerry McMahon/Provided

COLUMBIA — For the fifth time at the S.C. Supreme Court, lawyers for a land developer, several environmental groups and state regulators faced off over the future of Captain Sam's Spit, a delicate body of land on Kiawah Island where builders want to put houses. 

The teardrop-shaped spit is on the southern tip of Kiawah and is bounded by the Atlantic Ocean on the east and the Kiawah River to the west.

The spit's edge adjacent to the river is rapidly eroding and the neck connecting Captain Sam's to Kiawah has been measured at narrower than 30 feet. 

At issue in the March 23 court arguments are permits for a steel bulkhead and road. Kiawah Development Partners is trying to construct the infrastructure to support 50 homes slated for the 150-acre isthmus.

The sheet-pile wall would be mostly buried initially, far enough upland to stay clear of the tidal "critical area" along the river that the state protects. 

But evidence from a lower court proceeding left little doubt that erosion would one day make the migrating river collide with the wall, eventually washing away the protected section in between.

That future erosion was at the center of the court justices' questioning over permits issued by the S.C. Department of Environmental Control.

"It's uncontroverted the spit is in an unstabilized inlet zone," Justice Kaye Hearn said to a lawyer for DHEC. "How can we find, in light of that, that this decision (to issue a permit) is supported by substantial evidence?"

Bradley Churdar, DHEC's attorney, responded that the department's only job was to decide whether proposed developments fit with the state policy. He said regulators had to rely on a specific moment in time to make those decisions.

"Whether (the development) is 'quote/unquote' a good idea or not, is, I believe, beyond the scope of what we do," he said.

Groups like the Coastal Conservation League, the appellant in the case, have argued for years that the ever-shifting spit is particularly vulnerable. Its slim connection to Kiawah has been breached by water three times in recorded history. 

But G. Trenholm Walker, an attorney for the developer, said the case "should be decided on the rule of law," and that the league simply wanted to stop all development on the land, period. 

At one point, Justice John Kittredge posed a related question: Whether any proposed development at the spit would always face a legal challenge. 

"Can you tell us what the Coastal Conservation League would accept?" he asked Amy Armstrong, an attorney for the league. "Is it simply (to) say, 'take the ball and go home, because we’re going to fight you if you try to build an anthill on this property?' "

Armstrong said the league's main concern is to preserve the areas of Captain Sam's that the public uses for recreation, including the unusual sandy bank along the Kiawah River. 

"If there is a way to accomplish that (alongside a development), we’d be glad to see it," she said. "We have not seen that yet."

Plans to build on Captain Sam's Spit have been in the court in one form or another since 2009.

An earlier version of the wall resulted in an exceedingly rare four trips to the state Supreme Court, most recently in 2018. That's when the justices decided the wall and a pile of rocks to protect it could not be built because it would stop the public from accessing the section of the spit along the river. The rocks have been removed from the most recent proposal.

It's not clear when justices will issue an opinion from the March 23 arguments.

Reach Chloe Johnson at 843-735-9985. Follow her on Twitter @_ChloeAJ.

Chloe Johnson edits the Health and Environment team and writes about South Carolina's changing climate. Her work has been recognized by the Society for Features Journalism, the Scripps Howard Foundation and was a finalist for the Pulitzer Prize.

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