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SC Supreme Court overturns permits in latest battle over Captain Sam's Spit

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Captain Sam's Spit October 2016 (copy) (copy)

The S.C. Supreme Court has decided to overturn permits for a seawall along Captain Sam's Spit, an eroding land mass connected to Kiawah Island. Jerry McMahon/Provided

KIAWAH ISLAND — Plans to build a wall that would eventually allow homes to be built on Captain Sam's Spit — a teardrop-shaped isthmus at the end of this barrier island — have again been struck down by the S.C. Supreme Court. 

The decision is a win for South Carolina conservationists in the long-running legal battle and carries far-reaching implications for how the state reviews development permits along the rapidly changing coast in the age of sea level rise.

The court ruled the S.C. Department of Health and Environmental Control erred in issuing permits for a 2,380-foot steel wall along the narrow neck connecting Captain Sam's to Kiawah.

The wall was meant to fend off erosion from the Kiawah River, which borders the island and spit on one side. Water has burst through the thin connection between the land masses at least three times before. 

The Coastal Conservation League made multiple arguments against the permits in both court filings and a March 23 argument, chief among them that the wall would eventually lead to the washout of a rare sandy riverbank that kayakers and others use for recreation.

"What's at stake is a public trust resource," said South Carolina Environmental Law Project attorney Amy Armstrong, whose firm represented the league.

"We don't have any more of these tidelands. What we have is limited and so special and so well-used and well-loved that we've got to protect it," she said.

Trenholm Walker, attorney for builders Kiawah Development Partners, said his client was disappointed with the decision and will ask the court to rehear it. Developers intend to construct 50 homes on the roughly 150-acre spit of land. 

"As found by the administrative law judge who heard all the evidence (in lower court), the limited development of Captain Sam's will be done in an environmentally sensitive manner that includes a permanent conservation easement preserving most of the property in a natural state in perpetuity," Walker wrote in an email.

According to the opinion authored by Justice Kaye Hearn, a lower court relied too much on economic benefits in allowing the permits; wrongly justified the span by focusing on a small portion that would protect Kiawah's Beachwalker Park; and let DHEC get away with a too-narrow interpretation of state law that protects tidal areas like beaches and marshes. 

These "critical areas," as the state calls them, get special scrutiny when a developer proposes any structure inside them. In this case, builders planned to put the wall just outside of fast-advancing critical area, so DHEC didn't apply that close review before it approved the building plan.

On that point, Hearn wrote, "the expert testimony established it is not a matter of if but when the critical area will encompass the wall," and thus the impacts had to be considered. 

That sets a legal precedent in other cases where developments are sited on land that may one day become tidal, Armstrong said. But she urged that the situation won't apply to most coastal developments because a pattern of erosion or sea rise would have to be documented on the project site.

"You can’t turn blinders on when you know something is going to happen," Armstrong said. "Certainly, DHEC needs to be thinking about that going forward."

The acknowledgement from the state's highest court is a significant one, as climate change and sea level rise make sensitive ecological areas advance to what was once high ground. In some cases, higher tides have started to flood building sites as state lawmakers repeatedly extended the life of building permits.

A DHEC spokeswoman said the agency "is aware of and reviewing the Supreme Court's decision made earlier today."

Various aspects of the plan to develop Captain Sam's have been in the legal system since 2009, resulting in three cases that made it to the Supreme Court and five total arguments in front of justices. 

Two of those arguments came after a party asked the state's highest court for a rehearing, or another chance to argue the legal issues at hand. It's unclear if the court will grant that chance again when the developers ask for it in this case. 

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

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