By Theresa Stratford for The Island Connection
For Kiawah Development Partners (KDP), it’s back to the drawing board if it wants to continue its now 12-year pursuit of the development of Captain Sam’s Spit. On June 2, the South Carolina Supreme Court denied permits that KDP so desperately needed from DHEC to construct a 2,380-foot steel wall along the neck portion that connects Kiawah to Captain Sam’s. These permits would have also allowed infrastructure like roadways, stormwater systems and utility lines. This is the third time the SC Supreme Court has ruled in favor of protecting Captain Sam’s Spit, a small and fragile piece of property, which many local wildlife call home, located on the southern tip of Kiawah Island. Its first ruling against the development of 50 homes on Captain Sam’s came in 2014 when the S.C. Supreme Court ruled against it because of “the complete loss of area held in trust for the benefit of the people.” Then again in 2018, the Court ruled in favor of the public benefits for preserving the spit and at that time blocked the construction of a half-mile long bulkhead/revetment on the Kiawah River. Emily Cedzo, senior program director of land, water & wildlife for the Coastal Conservation League, sent out an eblast on June 2: “Captain Sam’s is such a fragile, wild place and a rarity along our fairly developed coastline. Large-scale development does not belong there, and we will continue to ensure that never happens.” She ended the email with, “This is your victory just as much as it is ours.” Cedzo thanked the CCL attorneys at the South Carolina Environmental Law Project (SCELP). Amy Armstrong of SCELP came out with this statement: “This is a resounding victory for the protection of Captain Sam’s Spit and the public. It not only vindicates the efforts of so many years for preserving this state treasure — one of the three pristine beaches readily accessible to the general public — but it also reinforces the protections provided under the Critical Zone Management Act.” The wall that KDP wanted to build was meant to fend off erosion for the construction of the development, but Armstrong said that the spit has been completely underwater before – three times in recorded history in fact, and most recently in 1949. “It could happen again and in the grand scheme that was not that long ago. It may be in the next 20 years or it could be in just five years. Either way, we know it is a real possibility. It is a dynamic formation that changes in a cyclical pattern,” she contended in an interview after the March 23 S.C. Supreme Court argument against the permits. At that time, for Armstrong, the argument was mostly about the washout of the sandy riverbank that the public utilizes for recreation. The opinion authored by Justice Kaye Hearn of the S.C. Supreme Court issued on June 2 explained that the steel wall was to be constructed outside of the critical area. A critical area is defined as coastal waters, tidelands, beaches and beach/dune areas. KDP’s wall was planned upland of the critical area. As the opinion reads,
“However, this interpretation is misleading, and is actually similar to the steel wall itself — initially it may be obscured, but once the sand shifts, it will become visible and ultimately replace the sandy beach. All the expert testimony confirmed the erosion would continue until the wall became exposed — otherwise there would be no need for an erosion control device. Even DHEC acknowledged in its brief the ‘admittedly realistic concern’ that the critical area will overtake the steel wall.”
Back in March, KDP argued that developing the property would provide significant economic gain, such as tax dollars to the town, which, they said, outweighs the eventual loss of the riverside access to public citizens. DHEC contended at the argument in March that its only job was to approve the infrastructure permit based on whether the development fit state policy.
Armstrong said, “While economic interests are relevant, relying on tax revenue or increased employment opportunities is not sufficient justification for eliminating the public’s use of protected tidelands.” Hearn’s opinion concluded with, “Further, because the shoreline will erode until the riverbank reaches the steel wall, the public is essentially left in the same situation — the complete loss of area held in trust for the benefit of the people. Despite this inescapable conclusion, the Administrative Law Court disregarded that paramount concern for a third time.”
She continued, “The League contends the ALC erred in solely relying on the economic benefit of the overall project. Specifically, the League argues the ALC improperly focused on the expected tax revenue and increased jobs as part of its public benefit analysis.
Conversely, KDP asserts the ALC properly balanced the economic, social, and environmental interests. We agree with the League.” The mission of the ALC is to provide a neutral forum for fair, prompt and objective hearings for any person affected by an action or proposed action of certain agencies of the State of South Carolina. The agency in this case is DHEC. Armstrong concluded, “The Court rules that any known impact to tidelands, coastal waters, beaches and dunes including from projects out of such critical area must be considered to provide maximum public benefit. When balancing competing interests in these dwindling public trust resources, public beneficial uses must be prioritized.” Cedzo, reiterated the CCL’s stance. “There are so few areas of the South Carolina shoreline that are not already encumbered by erosion or infrastructure. Captain Sam’s Spit is one such area that has remained a special recreational resource for Kiawah residents and visitors alike, in addition to serving as an important home for threatened wildlife.
A massive steel wall and utility infrastructure would have detrimental impacts on this resource that would absolutely diminish the public benefits it could provide to future generations.” Juliana Smith, south coast project manager for CCL, explained that there are many wildlife that thrive on Captain Sam’s Spit.
She pointed out the unique strand feeding that dolphins engage in on the sandy slope on the river side. “That behavior is so unique. You can actually see a mother dolphin teach her young to do it. It’s incredible. The dolphins would lose that beach if a wall was constructed, and people would lose getting to watch these animals in the wild.”
Smith said that the Lowcountry Marine Mammal Network educates people on dolphin strand feeding. Smith noted that Captain Sam’s Spit is also home to the endangered diamondback terrapins where they nest on the sandy, uninhabited shore. Not to mention, there are the many migratory birds, including the ever elusive Red Knots, and many songbirds as well, that have also set up camp on Captain Sam’s.
And then there are the bobcats. “There have been many confirmed bobcat dens on Captain Sam’s Spit. What is nice about Captain Sam’s is that there is no rat poison there. It gives them space to be themselves and thrive,” Smith commented. Kiawah Island Wildlife Biologist Jim Jordan confirmed that building on Captain Sam’s Spit would reduce habitat value for the animals living there. “It is obvious that their habitats would decline. It is a fairly large patch of undeveloped land that these animals can prosper on,” Jordan said. Laura Cantral, executive director of the CCL concluded, “Building homes on the fragile Captain Sam’s Spit was a bad idea years ago when developer KDP first announced its plan to construct 50 homes there. The South Carolina Supreme Court drove home, for the third time, today that it’s still a bad idea. The fragile piece of sand is no place for a 2,380-foot steel wall, along with a roadway, stormwater management system, and utility lines, which would have been devastating to such an ecologically sensitive and fragile landscape. Captain Sam’s is a valuable public resource. We are celebrating this victory, and we will continue our fight to protect Captain Sam’s Spit.” KDP attorney Trenholm Walker was reached out to for comment, but did not respond by the time of publication.
The future development of Captain Sam’s Spit has been argued in and out of court since 2009. Only time will tell if this is the end of the saga with developing Captain Sam’s Spit.