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Nov 11 2017

DHEC Holds Public Hearing Over Jurisdictional Lines

By Gregg Bragg, The Island Connection Sr. Staff Writer

Bill Eiser with Eiser Coastal Consulting initially spoke on behalf of the South Carolina Beach Advocates.

Blair Williams, Manager of Wetland Permitting with the South Carolina Department of Health and Environmental Control division of Ocean and Coastal Resource Management opened the public hearing on SC’s new shoreline development regulations in the usual manner. He called for a four-minute time limit on comments and insisted professional decorum be adhered to for the proceedings. The meeting in North Charleston’s North City Council Chambers on Oct. 24 was one of series that has been a long time coming. Development along SC’s coast had been gaining momentum for years, and drew DHEC’s attention. Its shoreline advisory committee suggested forming a special group to augment its report, Adapting to Shoreline Change, in July of 2010. The Blue Ribbon Committee on Shoreline Management (BRC) was designed to protect SC’s coastal legacy. The decision embraced by both the BRC and DHEC in 2015 was to set a line based on 2010 measurements. Depending on the interplay of tide/dunes/beach, a line would be drawn beyond which development would not be permitted. The SC general assembly introduced S.139 early in 2015 to cement the decision. Sen. Paul Campbell, who accepted accolades as a member of the BRC, subsequently introduced what would come to be known as the “Kiawah Amendment,” to S.139 late in 2015. The proposal made an exception of Captain Sam’s Spit (The Spit) and delayed drawing the line along the entire SC coast until at least 2020. Lobbyists of every stripe converged at the state house, and in a compromise no one really wanted, S.139 passed in June of 2016 with the caveat; the baseline would be drawn by the end of 2017, necessitating the DHEC hearing. DHEC staff opened their remarks by saying the adjacent break room was available for one on one consultation between DHEC staff and residents. They continued with a description of the science employed to establish the line, the equipment they used, and the appeals and comment processes.

Measurements were an amalgamation of those taken over the last 40 years, and included Matthew’s effects but, oddly, not Irma’s. Their complete presentation, including information on handling existing structures is available online at SCDHEC.gov. The close of the staff presentation signaled the beginning of the true comment period. Staff asked people to identify themselves by name and address, which was met with varying levels of success. The room was packed and maybe as many as 40 people signed up to speak. Twenty-two of them did make comments starting with Claude Burns. His property is now in front of the line, the effects of which he likened to an exercise of eminent domain, but without the accompanying compensation, he is left to wonder about the future of his property. Lewis Leak from Edisto also finds himself in front of the line, but defended his property as being on safe ground and posited the rhetorical; what are the insurance ramifications of this new baseline? Kiawah resident Wendy Kulick has long tilted with her home town developer, Kiawah Development Partners. KDP recently argued more construction would improve property values, and opposed the baseline they once supported in a letter to residents. Kulick expressed dismay at the attempted “gaslighting”, and essentially reminded participants of a lesson from their Econ 101 class; the less of something there is the more value it has, not the other way around. Rich Thomas of Johns Island expressed his concern that data from Irma was not included. He said an additional 20-30 feet of erosion had not been taken into account by DHEC, and more time was needed to study and account for the new data. His concerns were echoed by Kiawah resident Diane Lehder and Hamlin O’Kelley, an attorney representing clients from both Kiawah and the Isle of Palms. O’Kelley saved his questions for the break room, but wanted two points on the record. He felt the compressed time frame did not allow time to complete a Freedom of Information Act (FOIA) request. He also wanted it on the record that appeals of DHEC decisions meant a trip to Judge Anderson’s Administrative Law Court and questioned the time available for appeals, a concern shared by attorney Leslie Lenhardt of the Lenhardt Law Firm. “DHEC regulations provide a full year to file, but state law dictates a 15 day period to appeal,” observed Lenhardt during public comments. “Statutes always trump regulations,” she added. The comment shined a light on the personal, “break room” attention offered by DHEC personnel. Failure to file with DHEC could lead straight to judge Anderson, pitting hundreds individual plaintiffs against ‘city hall.’

We were his [Anderson] favorites the last time we went through this. Although legal fees were shared, each of 20+ clients had to pay the $500 filing fee,” Lenhardt told Island Eye News in a phone call the day after the hearing. Sullivan’s Island resident, retired DHEC Commissioner, and attorney Gerald Kaynard displayed a knack for working the room. He said he couldn’t understand the information DHEC provided in the allotted time. He turned to attendees and asked for a show of hands to make the point no one else in the audience understood it either. He said Sullivan’s had been accreting sand, snickering as he claimed it came from Folly Beach, and asked why it took 16 months (e.g. from passage of S.139) to hold the hearing. “There is no mechanism for individual protests. Individual homeowners are the appellants,” he said. Peter Tessa from Sullivan’s Island now finds his home in front of the line despite the presence of bulkheads designed to protect his property. Edisto residents Ann Balderson, Bill Fuller, and Jackie DeJean also find themselves in front of the line, and all four asked for more time to review their plight. Trenholm Walker, an attorney representing KDP, Kiawah’s community association (KICA), and the Kiawah Island Golf Resort (KIGR), argued the long-term trend on Kiawah suggested accretion of sand, not erosion. All three organizations have construction projects in varying stages of development, jeopardized by the new baseline. KICA has closed its recreation center for renovations which include a pool built into the dunes seaward of the building. New construction in front of the line is frowned on and new pools are specifically prohibited. “We’ve spent $250,000 planning this [renovation]. Captain Sam’s is the only thing not impacted by the new line,” said James Bailey, KICA’s COO. Bill Eiser with Eiser Coastal Consulting initially spoke on behalf of the South Carolina Beach Advocates. “There is no compelling reason to fix the baseline by the arbitrary Dec. 31 date. The compressed schedule is the wrong approach to a permanent state policy,” read part of a lengthy statement from the group of municipal officials and administrators. He closed with his personal recommendation DHEC could meet the deadline by fixing the line in places where accretion was moving seaward [satisfying the letter of the law], while waiting for better data in places where erosion was occurring [to salve the law’s spirit]. Eiser was the only person who responded to Island Eye News follow-up questions. Asked if there was any chance the comment period can be extended/what an extension might change, Eiser said “the OCRM regulation states ‘the Department shall afford the public a 30-day comment period.’ So OCRM staff is following the letter of the law. However, there’s no prohibition on extending the comment period based on public demand. It’s difficult to speculate if it would result in changes to the proposed line revisions, but at least it would give the pubic more time to become aware of all this, thoroughly review it, and provide comments.” Asked why Captain Sam’s Spit wasn’t affected by the new baseline, Eiser said, “Captain Sam’s Spit is classified as an ‘Un-stabilized Inlet Zone,’ so the baseline is set at the most landward shoreline position during the past 40 years. Basically, OCRM has determined that the erosion from Hurricane Matthew, even though it was significant, didn’t move the shoreline any farther landward than it was 40 years ago.” “OCRM staff has stated that no data from after Irma was included in their analysis. This probably has to do with the timing of their review work. They were just about finished when Irma came through. It would have been difficult to start all over again for the entire coast and still meet their stated deadline of Dec. 31,” replied Eiser. Anybody wondering if public comments make a difference got their answer on Nov. 3. Tim Kelly, DHEC’s Director of Media Relations issued a press release headlined, “DHEC Extends Public Comment Period on Proposed Beachfront Jurisdictional Lines Until April 6, 2018.” Salient parts of the notice include; “Because of this extension, the department will begin to adopt final revised beachfront jurisdictional lines in May 2018 with all lines published by December 31, 2018. A tentative adoption schedule for each beach will be available on DHEC’s website on November 13, 2017. “Existing jurisdictional lines will remain in place until final revised lines are adopted. A 2016 amendment of the Beachfront Management Act prohibits the baseline from moving seaward from its position on December 31, 2017. “The decision to adopt revised lines after December 31, 2017 affects landowners who own property where the baseline was proposed to move seaward of the existing baseline under the department’s current proposal. “DHEC is asking property owners to contact the department prior to December 4, 2017 by email at ocrm-comments@dhec.sc.gov or by phone at 843.953.0200 to receive information on requesting a board review. DHEC will also attempt to proactively reach out to these property owners.”

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