December 12, 2014

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On December 10, 2014, the South Carolina Supreme Court ruled in a 3-2 decision that a developer could not construct a proposed bulkhead and revetment at Captain Sam’s Spit on Kiawah Island.  The developer asserted that the bulkhead was needed to stop erosion to facilitate development of the spit.  When the developer submitted its original permit application for the bulkhead to the South Carolina Department of Health and Environmental Control (DHEC), the agency permitted only 270 of the 2,513 proposed feet of the structure.  That decision was then reversed by an Administrative Law Court Judge, clearing the way for construction.  DHEC and the Coastal Conservation League appealed the Administrative Law Court’s decision.  In 2011, the Supreme Court ruled in their favor but then in 2013 reversed course and sided with the developer.  A few months later, the Supreme Court agreed to reconsider the case for a third time, resulting in this week’s ruling.

Justice Kaye Hearn, writing for the majority, stated that the lower courts did not adequately evaluate whether the bulkhead would ensure “maximum public benefit,” noting that “Captain Sam’s Spit and the public tidelands along its margins are of great importance to the people of South Carolina.”  Chief Justice Jean Toal dissented, stating that the Administrative Law Court Judge reached a reasonable decision and that the Supreme Court’s reversal “undermines South Carolina’s longstanding approach to controlling unrestrained bureaucratic decisions regarding private property rights.”