Kiawah Dev. Partners, II v. S.C. Dep't of Health & Envtl. Control

• Decision Date: 10 December 2014
• Docket Number: No. 27065.,27065.
• Citation: 766 S.E.2d 707,411 S.C. 16
• Court: South Carolina Supreme Court
• Parties: KIAWAH DEVELOPMENT PARTNERS, II, Respondent, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Appellant, and South Carolina Coastal Conservation League, Appellant, v. South Carolina Department of Health and Environmental Control and Kiawah Development Partners, II, of whom South Carolina Department of Health and Environmental Control is Appellant, and Kiawah Development Partners, II is Respondent. Appellate Case No.2010–155629.

411 S.C. 16

766 S.E.2d 707

KIAWAH DEVELOPMENT PARTNERS, II, Respondent

v.SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, AppellantandSouth Carolina Coastal Conservation League, Appellant

v.South Carolina Department of Health and Environmental Control and Kiawah Development Partners, II, of whom South Carolina Department of Health and Environmental Control is Appellant, and Kiawah Development Partners, II is Respondent.

Appellate Case No.2010–155629.

No. 27065.

Supreme Court of South Carolina.

Heard June 5, 2013.

Refiled Dec. 10, 2014.

Jacquelyn Sue Dickman, of Columbia, Bradley D. Churdar, of Charleston, Amy E. Armstrong, of the South Carolina Environmental Law Project, of Pawleys Island, Robert T. Bockman, of Columbia, and Davis A. Whitfield–Cargile, of Brevard, NC, for Appellants.

G. Trenholm Walker, of Pratt–Thomas Walker, PA, and Gedney M. Howe, III, of Gedney M. Howe III, PA, both of Charleston, for Respondent.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. Mcintosh, Solicitor General Robert D. Cook, and Assistant Attorney General T. Parkin Hunter, and C. Mitchell Brown and A. Mattison Bogan, both of Nelson Mullins Riley & Scarborough, LLP, all of Columbia, for Amicus Curiae, Savannah River Maritime Commission.

Frank S. Holleman, of the Southern Environmental Law Center, of Chapel Hill, NC, and J. Wesley Earnhardt, Michael P. Addis, and Margaret B. Hoppin, all of Cravath, Swaine & Moore, LLP, of New York, for Amicus Curiae, The South Carolina Nature–Based Tourism Association.

Jordan R. Israel, of Washington, D.C., for Amicus Curiae, Inlet Cove Homeowners Association, Kayak Charleston, LLC, South Carolina Paddlesports Industry Association, and Friends of the Kiawah River.

James B. Richardson, Jr., of Columbia, for Amicus Curiae, South Carolina Manufacturer's Alliance.

Michael Robert Hitchcock, of Columbia, for Intervenors.

Opinion

Justice HEARN.

Our State's tidelands are a precious public resource held in trust for the people of South Carolina. While the tidelands are a finite resource, a bevy of competing environmental, economic, and social uses seek to lay claim to them. The legislative branch has made the policy decisions as to how those uses should be balanced in order to maximize the benefit to the people of South Carolina and enacted statutes and delegated to executive agencies the power to promulgate regulations to fulfill those policy decisions. The task falls to the courts to ensure that those statutes and regulations are correctly applied in carrying out that policy.

At issue here is the correct application of those statutes and regulations to an invaluable—in environmental, economic, and social terms—stretch of tidelands located on the edge of a spit of land along the South Carolina coast. A landowner and real estate developer seeks a permit to construct a bulkhead and revetment stretching 2,783 feet in length and 40 feet in width over the State's tidelands, thereby permanently altering 111,320 square feet or over 2.5 acres of pristine tidelands. The landowner seeks to halt ongoing erosion along that stretch of tidelands in order to facilitate a residential development on the adjacent highland area. DHEC denied the majority of the requested permit and granted a small portion to protect an existing county park. An administrative law court (ALC) disagreed and found a permit should be granted for the entire structure, and this appeal followed. We conclude the ALC committed several errors of law and therefore, we reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

Kiawah Island is a barrier island approximately one mile wide and stretching approximately ten miles along South Carolina's coast. At the island's eastern end it is separated from Folly Beach by Stono Inlet where the Stono River empties into the Atlantic Ocean. The Island is separated from John's Island and the mainland to the north by the Kiawah River. At the island's western end, the Kiawah River turns to the south and travels along the Island's western edge. From the western tip of the Island, Captain Sam's Spit extends along the coast in a southwesterly direction towards Seabrook Island. The Spit consists of a narrow “neck” where it extends away from the Island and then grows into a large, bulbous end. At the point at which the Kiawah River meets the Spit where it extends from the end of the Island, the Kiawah River turns to the west, wraps around the bulb of the Spit, and then turns to the south. There the River passes through Captain Sam's Inlet between the Spit and Seabrook Island and empties into the Atlantic Ocean.

Fig. 1: Captain Sam's Spit

At the present time, where the Spit meets the larger island and Kiawah River turns to travel along the Spit—the neck—the Spit is approximately 450 feet wide measured from the critical line on the River side to the mean high water line on the Atlantic Ocean side. At its widest part the Spit has a high ground width of more than 1,600 feet. The Spit has a number of high dune ridges running its entire length, and, on the river side of the bulbous end, a young and growing maritime forest. When the tide recedes in the River, a soft, sandy beach is exposed on the Spit along the area where the River bends. The portion of the Island at the western end immediately upriver of the Spit's neck is occupied by a Charleston County park which the County leases from Kiawah Development Partners, II, Inc. (Kiawah). The Spit's neck and the adjacent area where the county park is located are eroding. At points along the bend in the river, a vertical escarpment as high as ten to twelve feet exists. While a portion of the river side of the Spit is eroding, on the ocean side the Spit has steadily accreted over the past several decades.

While the River side of the Spit is experiencing erosion, the Spit as a whole is growing. The ocean side of the Spit has steadily accreted sand for the past sixty years and at present the accretion is occurring at a faster rate than the rate of erosion on the River side. Over the past three hundred years, however, at least twice a version of the Spit has formed, followed by the breach of the Spit's neck, and the disappearance of the Spit. The present Spit began to reform around 1949.

In 1988, Kiawah purchased the Island including the Spit; the same year the Town of Kiawah Island was incorporated. Prior to 1999, there was no building setback line on the Spit and therefore the Spit could not be developed.¹ Accordingly, in 1994, the Town and Kiawah entered into a development agreement which limited the uses of the Spit to green space and parkland and thereby prohibited development of the Spit. In 1999, due to continued accretion on the ocean side of the Spit and the Spit's resulting growth, the State established a setback line on the Spit thereby permitting development on the Spit landward of the setback line. In 2005, the Town and Kiawah entered into a new development agreement which permits development of up to fifty home sites and two community docks on the Spit.

In order to facilitate development of the Spit, Kiawah hired an engineering firm to design an erosion control structure to stop the erosion occurring along the bend in the Kiawah River. The firm recommended the combination of an articulated concrete block mat² and a bulkhead and prepared a permit application on Kiawah's behalf. The application sought approval from the South Carolina Department of Health and Environmental Control (DHEC) to construct a combination bulkhead and articulated concrete block revetment beginning at the county park and extending for 2,783 feet along the Spit around the bend in the River.³ The mat would extend a width of forty feet from the bulkhead down into the River and would cover the entire beach.

DHEC staff issued a permit to Kiawah but only for construction of a bulkhead and revetment to extend 270 feet along the shoreline adjacent to the county park. It denied the remainder of the requested 2,783 feet of bulkhead and revetment. The staff found the structure would “affect the ability of the inlet and the beach/dune system to migrate, as it has been known to do in the recent past.” They also found the structure and the proposed development that the structure would facilitate would “have long-range and cumulative effects on [sensitive areas] and on the general character of the area.” The staff found the proposed structure would contravene Section 48–39–150(A)(6) of the South Carolina Code (2008) due to its effect on rare and endangered species. The staff found Regulation 30–11 of the South Carolina Code of Regulations (2011) implicated because the structure would “prevent the normal shoreline migration and the cycle of creation and subsequent in-fill of a tidal inlet” and because the development the structure would facilitate would “have a significant impact on the general character of the area.”

Kiawah and the South Carolina Coastal Conservation League (League) both requested a final review conference before the DHEC Board, and the Board denied the request for a final review conference. Kiawah then requested a contested case hearing before the ALC challenging DHEC's denial of the remainder of the permit. The League also filed a request for a contested case hearing challenging DHEC's decision to authorize the 270 feet of bulkhead and revetment adjacent to the county park. The ALC held a contested case hearing at which the parties presented witnesses and exhibits in support of their positions.

The ALC ruled in favor of Kiawah, granting the permit for the full 2,783 feet of bulkhead and revetment, but modifying the requested permit in several ways. In so concluding, the ALC found the structure would not contravene any of the applicable statutes and regulations asserted by DHEC and the League. As to section 48–39–150, the ALC found its provisions satisfied because “there are no significant negative impacts” from the structure. Specifically, the ALC found “neither the bulkhead/revetment nor...