Kiawah Development Partners, II v. South Carolina Department of Health and Environmental Control

Captain Sam’s Spit (the spit), an undeveloped sandy inlet, extended from the western tip of Kiawah Island off the South Carolina’s coast. The spit’s narrow neck extended from the island into a bulbous end that contained a maritime forest. Historically, spits had formed, eroded, and reformed at least twice in the same location. Although the spit as a whole was growing, the western portion extending along the Kiawah River was eroding. In 1999, the state established a setback line that permitted the spit’s owner, Kiawah Development Partners (the developer) (plaintiff), to develop the spit. In 2005, the town of Kiawah Island and the developer entered an agreement for a housing development on the spit. In an effort to stop erosion and facilitate development, the developer sought a permit to construct a combination bulkhead and articulated concrete-block revetment (the project) starting at a county park and extending along the shoreline for 2,783 feet. The Department of Health and Environmental Control (DHEC) (defendant) denied the permit for all of the project area except 250 feet of shoreline adjacent to the county park, finding that the project would have long-range, cumulative effects on a sensitive area and a negative effect on rare and endangered species. The developer appealed DHEC’s decision. The administrative-law court (ALC) found that the permit should have been issued for the entire project area because that the project’s impact on public access would be insubstantial and therefore not prohibited by DHEC regulation 30-12(C), a prohibition on bulkheads and revetments that adversely affect public access unless no feasible alternative exists. The ALC also determined that that no feasible alternative to the project existed under 30-12(C)’s exception. The DHEC appealed the ALC’s decision.