ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter was before the Administrative Law Judge Division upon the request of
Petitioners Summer House Horizontal Property Regime and Ken Heritage, Richard Reeves, & Chris
Hays for a contested case hearing on the denials of two permit applications, OCRM-97-225-H and
OCRM-97-189-H, respectively, to install erosion control devices. These applications sought the
installation of 5' by 10' sandbags in the beach critical area. The Heritage, Reeves & Hays
application, filed with OCRM on May 9, 1997, sought to install the sandbags under three houses and
across a vacant lot. The stated purpose of the project was to prevent further erosion along these
ocean-front properties. The Summer House application, filed with OCRM on May 29, 1997, sought
to install the sandbags along an eroding oceanfront escarpment line to prevent further erosion at
Summer House Building One.
OCRM sent a letter denying both of these applications on June 25, 1997. On July 11, 1997,
Heritage notified OCRM of his appeal of the denial, and on July 14, 1997, Summer House gave
notice of their appeal. The appeals were timely transmitted to the Division.
Several motions were filed prior to the scheduling of the contested case hearing. The
Petitioners filed a motion for summary judgment and to expedite the hearing. The South Carolina
Coastal Conservation League and Louis Tisdale filed motions to intervene in this action. A hearing
was held on the motions to intervene and to expedite the hearing on August 29, 1997. By Order,
issued September 5, 1997, these motions were granted. A hearing was held on the Motion for
Summary Judgment on September 9, 1997. By order issued September 12, 1997, the motion was
denied.
After notice to the parties, a contested case hearing was conducted on October 2 and 3, 1997.
Based upon the evidence presented and the applicable law, the applications for permits to erect the
5' by 10' sandbags are denied. Any issues raised or presented in the proceedings or hearing of this
matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29B.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases and taking into account the credibility of the witnesses:
Background
1. Notice of the time, place and nature of the hearing was given to all parties.
2. Ken and Sallie Heritage are the owners of Lot 6, #6 Summer Dunes Lane, Wild
Dunes, Isle of Palms, South Carolina, having purchased the property on March 18, 1994.
3. Richard and Barbara Reeves are the owners of Lot 7, #7 Summer Dunes Lane, Wild
Dunes, Isle of Palms, South Carolina, having purchased the property on January 25, 1995.
4. Sunshine Properties is the owner of Lot # 8 Summer Dunes Lane, Wild Dunes, Isle
of Palms, South Carolina, ("vacant lot") having purchased the property on March 18, 1994.
Sunshine Properties is not a party to the present action.
5. Chris and Ruth Hays are the owners of Lot 9, #9 Summer Dunes Lane, Wild Dunes,
Isle of Palms, South Carolina, having purchased the property on November 30, 1994.
6. Summer House Horizontal Property Regime ("Summer House") is a two building,
fifty-five unit condominium complex located on Palmetto Drive in Wild Dunes, Isle of Palms, South
Carolina. Summer House is managed by Ravenel Associates, through their employee, Kellie
Swofford.
7. Ken Heritage submitted a permit application to OCRM on behalf of himself, Hays,
Reeves, and Sunshine Properties, for a permit to construct a sandbag revetment along an eroding
oceanfront scarp line, under their homes and across the vacant lot. The stated purpose of the project
as contained in the OCRM permit application was to prevent further erosion under the subject
homes. This application was placed on public notice on May 29, 1997.
8. Summer House, through its representative Kellie Swofford, submitted a permit
application to construct a sandbag revetment in front of Building One extending 100 linear feet
around the base of the building at an eroding scarp line. The stated purpose of the project was
erosion control. This application was placed on public notice on June 5, 1997.
9. Petitioners' proposed revetments would be comprised of 5' by 10' sandbags, each
weighing approximately 2 ½ tons. These bags are hydraulically filled with a sand/slurry mixture.
They are stacked and sloped against an eroding scarp line and under the structures. The height of
the proposed revetment could be as much as six rows of sandbags.
10. Comments relating to these applications were received by OCRM during the
comment period. The South Carolina Department of Natural Resources submitted written comments
on both applications and objected based on the potential for adverse impacts to sea turtle nesting
activity.
11. OCRM issued a written denial of both applications on June 25, 1997. This request
for a contested case hearing followed.
Petitioners' Properties
12. The Heritage, Hays, and Reeves houses are located in an area on which there is
periodic inundation by tidal and wave action so that no nonlittoral vegetation is established.
13. Lot #8, the vacant lot, is entirely beach critical area.
14. The area in front of Summer House, Building One, is beach critical area.
15. In establishing the baseline in front of Petitioners' property, OCRM classified this
portion of the Isle of Palms as an inlet erosion zone and utilized the most landward shoreline over
the past forty years.
16. OCRM adopted the 1984 shoreline as the baseline. The setback line was established
twenty feet landward of the baseline.
17. When the Heritage, Hays, and Reeves houses were constructed, the location of the
homes did not occur within the critical area of the coastal zone. All of the houses were built a few
inches landward of the OCRM setback line.
18. Heritage, Hays and Reeves were not required to obtain any permits from OCRM to
erect their homes.
19. The Heritage, Hays and Reeves properties are in the "V" zone. The "V" zone is a
velocity zone defined by the Federal Emergency Management Agency as an area on the flood
insurance map that is subject to wave heights greater than three feet or high velocity floods. Each
house has been issued a V zone certification which certifies that the lowest floor or horizontal
structural member supporting the floor is 21 feet above sea level. It also certifies that each house
was designed to withstand wind and wave forces of a one-time event, such as a hurricane, and to
accommodate approximately 2 feet of scour or erosion around the foundation as a result of that
event.
20. The construction of the Heritage, Hays and Reeves houses met all of the applicable
building code requirements and were built according to the required specifications.
21. The structures were supported by wood pilings that were sunk beneath the surface to
a depth of approximately fifteen feet.
22. Summer House, Building One, is located approximately fifty feet landward from the
setback line.
Erosion History and its effect on Petitioners' Property
23. The north end of Isle of Palms, where Petitioners' properties are located, is generally
characterized as an accretional beach. This means that more sand is gained than is lost, over the
long-term.
24. The north end of the Isle of Palms is also periodically affected by shoal attachment
phenomena.
25. The process of a shoal attachment causes sand to bulge in front of the area where the
shoal is approaching the shore. The areas to the north and south of the bulge suffer severe erosion,
while the area in front of the bulge rapidly gains sand, or accretes. There is no way to predict when
a shoal will begin to come ashore, where the bulge will form, and where the erosion will occur.
There is also no way to predict the length of time affected properties will suffer from the erosional
event.
26. The shoal system results in extreme changes to the shoreline which level out over a
period of five to fifteen years.
27. This phenomenon has been documented to have occurred at least fifteen times over
the last fifty years. The most recent occurrences were in 1983, 1987, and 1995.
28. It is this latest occurrence which has caused the erosion at Petitioners' properties. The
shoal has attached near Beach Club Villas on the Isle of Palms. OCRM aerial photography indicates
that the sand is spreading to the north and the south of Beach Club Villas. Beach Club Villas is
located south of Petitioners' properties.
29. The owners of properties initially affected in 1995 by the current shoal attachment
are located at Beachwood East in Wild Dunes (also south of the Petitioners' properties). These
properties owners obtained an emergency order from DHEC to authorize sand scraping and
sandbagging.(1) These properties continue to suffer from erosion today.
30. All properties in Wild Dunes directly affected by the shoal phenomenon have been
authorized to use only the measures provided for in the emergency order - five gallon sandbags and
sand scraping.
31. The properties in Beachwood East are all located seaward of the OCRM setback line.
None of these houses has been lost during this erosional event.
32. Another shoal attachment phenomenon is occurring at the northeastern end of the
island (north of Petitioners' properties), causing a bulge to form near the golf course. This shoal is
creating erosion at the end of the island and is slowing the spreading of sand from the shoal that
attached at Beach Club Villas.
33. To help slow erosion in front of their properties, Petitioners Heritage, Hays and
Reeves began sand scraping in front of their houses in July or August of 1996.
34. Eventually Heritage, Hays and Reeves were unable to maintain a dune in front of their
properties due to erosion and, since that time, have stacked thousands of five gallon sandbags under
their structures to retard the erosion and scour around their foundations.
35. Summer House also scraped sand periodically from December, 1996 until June 1997.
No scraping or stacking of sandbags has been required at Summer House since June of 1997.
36. The sand scraping and sandbagging have been somewhat effective in providing
protection to these properties from wave action and in slowing erosion.
37. Sand scraping is a form of beach renourishment. Nourishment projects are intended
to be sacrificial. By scraping sand and placing it in a certain area, erosion is retarded. The displaced
sand is washed away by the tidal flow spreading the sand in the area where the erosion is occurring.
38. OCRM monitors every beach in the State. Monitoring data is collected at OCRM
survey stations and maintained by OCRM personnel.
39. Data obtained from stations 3167B (Beachwood East south), 3170B (Beachwood East
north), 3173B (Beach Club Villas), 3175B (Mariners Walk), 3178B (Summer House), 3180B (Port
O'Call), and 3183B (golf course) was used to create a "sand profile."
40. The sand profiles show recovery from the erosion caused by the most recent sand
shoal attachment at stations 3173B (Beach Club Villas), 3175B (Mariners Walk), and 3178B
(Summer House), south of the Heritage, Hays and Reeves properties. There is no indication that
recovery has reached as far north as 3180B (Port O'Call). The Heritage, Hays, and Reeves properties
are located between stations 3178B and 3180B.
41. Summer House manager Kellie Swofford has observed that the beach is improving.
The five gallon sandbags used by Summer House around Building One have not been replaced or
restacked, and have remained stable since June, 1997.
42. Petitioner Hays has observed that the beach has recovered by two feet since the
beginning of the summer (1997) in front of the Summer Dunes Lane property.
43. Heritage and Reeves continue to reside in their houses. They have street access to
their front doors, and all of their utilities are in place and working. They have lost landscaping, back
porches, and back stairs. Continued erosion threatens the electrical and sewer systems.
44. Hays rents his house on Summer Dunes Lane and lives in Mt. Pleasant. The Hays'
parking slab has been undermined by the flow of water and has collapsed. Hays has also lost
landscaping, a back porch, back stairs and an elevator. The structure has lost access to cable services
and is in danger of losing electrical power.
45. Summer House has lost landscaping, a boardwalk, and two units have lost their back
porches and stairs.
46. The five gallon sand bags have provided a small measure of security to the property
owners despite the need for maintenance and replacement. In the case of Heritage, when the five
gallon bags are in place they have stabilized his foundation.
47. The Heritage, Hays and Reeves properties have suffered approximately seven feet of
erosion around the foundation and currently have a pile embedment depth of eight feet.
48. As a result, these properties are structurally vulnerable to failure through uplift at
wind speeds in excess of 40-45 mph. These wind speeds are typical of a strong northeaster or a
tropical storm.
49. The main building structure at Summer House is unaffected and occupancy is safe.
Notice to Petitioners
50. Heritage, Hays and Reeves were provided actual notice of the dynamic nature of the
shoreline in front of their properties at the time that they purchased their lots. Each deed contained
a lengthy exclusion paragraph for limitations on use imposed by the State and Federal Coastal Zone
Management Acts. The deeds further state these "Acts may also restrict the Grantee's right to build,
repair or rebuild structures on the property."
51. Each deed contained an ocean front property disclosure statement and an erosion and
accretion disclosure statement. The language of the erosion and accretion disclosure statement states
that the property "is subject to periodic accretion and erosion from wind and wave action,... ."
52. Heritage lived in Wild Dunes, at Pelican Bay and Ocean Club Villas, for ten years
before purchasing and building on his lot. He observed erosion at Ocean Club Villas.
53. Reeves has owned a unit at Mariners Walk since 1985. He recalled an erosional event
that affected Mariners Walk and resulted in the installation of a rock revetment. This erosion was
caused by the 1983 shoal attachment. Reeves observed the erosion at Beachwood East before
construction of his residence at Summer Dunes Lane. Reeves' loan closing on his Summer Dunes
Lane lot was after he observed the events at Beachwood East.
54. Hays had been informed about spot erosion occurring within the community on
numerous occasions.
55. Petitioners Heritage, Hays and Reeves had actual and constructive notice of the
dynamic nature of the shoreline at Summer Dunes Lane prior to the purchase of their lots.
Nature of Proposed Construction and Similar Activity
56. There is no dispute that Petitioners are constructing an erosion control structure.
57. Proposed construction of the Heritage, Hays and Reeves revetment would be from
the setback line landward for approximately eight feet under the houses and across the vacant lot
approximately 60 feet landward of the setback line.
58. Both proposed projects would require "engineering" to be effective. The construction
of the Summer House revetment would consist of sandbags installed in a sloping fashion
approximately 35 feet landward of the setback line and extending 100 feet along the eroding
shoreline.
59. The most effective installation for Petitioners Heritage, Hays and Reeves would be
to place a sandbag revetment in front of the houses, seaward of the OCRM setback line and stacked
in a stair step configuration with the top bag abutting the foundation concrete slab. The bags would
extend across all four lots and on the sides to protect the foundation and sand at its base along the
escarpment.
60. The proposed construction will restore, to a degree, pile embedment to the Heritage,
Hays and Reeves structures and it will aid the structures in resisting wind uplift.
61. There are other methods of reinforcing these structures which include retrofitting the
foundations of the existing structures. These methods have not been explored by the property
owners.
62. A 5' by 10' bag, with a volume of approximately 600 gallons and weighing over 2
tons, is not a sandbag in the traditional sense. This device can be used to construct an erosion control
structure, in the same manner that rocks weighing over 2 tons can be used.
63. These sandbags will withstand the force of a wave four to five feet in height.
64. A five gallon sandbag can be dislodged and will float away during a high tide.
Because a five gallon sand bag is subject to wave action and can be easily moved or dislodged, it can
not be used to construct an erosion control structure.
65. The life expectancy of a 5' x 10' sandbag, without maintenance, can be six to ten
years. The structure is less permanent than a rock revetment.
66. Several property owners on Sullivans Island installed large sandbags behind the
erosional scarp on their properties, on high ground. This was done in anticipation of further beach
erosion.
67. Three property owners on Marshall Boulevard on Sullivans Island installed large sand
bags seaward of the setback line without an OCRM permit. These bags became the subject of three
enforcement actions initiated by OCRM. OCRM has not issued an enforcement order in these
actions at this point in time. OCRM has agreed to hold these actions in abeyance while the Town
of Sullivans Island applies for a permit to restore the groins on the beach. This construction will help
manage the beach erosion and reduce its effects on the property owners on Marshall Boulevard.
68. One of the Marshall Boulevard property owners, Dennis Fisher, has had large
sandbags on his property since October, 1991. Six years later, the bags were still intact.
69. OCRM has never specifically authorized a sandbag larger than 5 gallons to be used
for erosion control. A 50 gallon sandbag has been proposed as part of a settlement in an action filed
or threatened by the Beachwood East property owners, but that settlement was never consummated.
70. A property owner (Byrd), who resides in Beachwood East on the Isle of Palms, used
50 gallon bags pursuant to the proposed settlement of the civil action. Although the settlement was
never consummated, OCRM took no action to remove the 50 gallon bags.
Impact of Proposed Construction
71. Sea turtles are a threatened species and some species (including the loggerhead sea
turtle) nest on the north end of Isle of Palms.
72. Sea turtles must nest in a dry sand location. They do not nest in wet sand. Sometimes
they nest at the base of the scarp dune.
73. Nesting generally occurs from mid-May to mid-August.
74. Sandbags, rock revetments, and other erosion control structures prevent sea turtles
from digging deep into the dry sand to lay the eggs resulting in a "false crawl." These false crawls
require great expenditures of energy by the sea turtles and result in a delay in laying eggs or no
nesting at all, thereby reducing the turtle population.
75. Erosion control structures on the beach will adversely impact sea turtles who come
to shore to nest.
76. Sandbags cause scour when waves strike the bags and energy is deflected downward
onto the beach.
77. A 5' x 10' sandbag will armor or harden the shoreline by affixing the position of the
shoreline.
78. Erosion control structures on the beach block the littoral drift of sand.
79. Erosion control structures on the beach can cause negative impacts to structures
located down drift.
80. Erosion control structures on the beach have the potential to obstruct the beach at high
tide and negatively impact public access.
81. Islands such as Hilton Head, Folly, and Fripp are almost entirely armored; therefore,
the impacts of erosion control structures on the South Carolina coast are likely to be cumulative.
82. Installation of the 5' x 10' sandbags under the structures may cause the structures to
fail. The wave action against the sandbags could cause scour at the base of the bags which may
result in settlement or displacement of the bags. In addition, the waves as they strike the sandbags
create forces on them which may cause the sandbags to strike or rest against the pilings. The force
of the sandbags against the pilings could cause structural damage particularly in a storm event.
83. FEMA, through regulations implemented locally, may prohibit the installation of any
obstructions underneath the homes.
DISCUSSION
Petitioners are beachfront owners whose lots and structures have been eroding due to a shoal
attachment on the Isle of Palms. Petitioners sought a remedy to protect their properties. Once the
tidal waters were within ten feet of their homes, OCRM allowed the use of sandbags pursuant to
emergency orders. The use of sandbags has retarded the erosion but it has been a costly and
expensive measure to control and abate the erosion because the bags and the scraped sand are
washed away by the tide. Petitioners obtained a permit to install large five by ten foot hydraulically
filled sandbags from the City of Isle of Palms to protect their property. In response to an inquiry
from the Petitioners to OCRM for advice concerning the installation techniques, OCRM asserted
jurisdiction and informed Petitioners of the permit requirement before proceeding with the project.
Upon application, the Petitioners were denied the permits.
In determining whether a permit application is granted or denied, OCRM must be guided by
the policies specified in the statutes and what is commonly referred to as the ten general
considerations. S.C. Code Ann. § 48-39-150. OCRM based its denial of the permits on several
factors specified in its letter denying the permits. These factors include:
a. Policies for permitting in the critical area;
b. The extent to which the permitted activity affects fish, marine or wildlife;
c. The extent to which the permitted activity causes erosion;
d. The extent to which the permitted activity affects rare and endangered species
e. The extent of any adverse environmental impact;
f. The extent to which the permitted activity affects the use and enjoyment of adjoining
property owners;
g. The regulations prohibit new erosion control structures;
h. The regulations promote soft solutions to erosion;
i. Five by ten foot sandbags constitute erosion control devices or structures.
South Carolina has adopted a policy to prevent unwise development within the coastal
beach/dune system and to protect the state's shoreline from long term adverse impacts. S.C. Code
Ann. §§ 48-39-250 and 48-39-260. To implement the policy, the legislature established a forty-year
retreat policy from that system by establishing baselines, setback lines, and construction restrictions
between those lines. S.C. Code Ann. §§ 48-39-280 and 290. The policy is intended to protect the
South Carolina shoreline from long term adverse impacts. S.C. Code Ann. § 48-39-260(3) and (4).
South Carolina has adopted a forty-year policy of retreat from the shoreline over the alternative of
armoring the beach with erosion control devices. S.C. Code Ann. § 48-39-280, 23A S.C. Code Ann.
Regs. 30-1(B).
The Coastal Zone Management Act and the Beachfront Management amendments do not
provide an absolute prohibition on erosion control devices landward of the setback line or on active
beach which developed landward of the setback line after these lines were set. OCRM jurisdiction
does not extend beyond the setback line if there is no active beach or periodic inundation of tidal
waters. Once the tide reached the setback line and the erosion began, OCRM had jurisdiction over
the area. Once jurisdiction was established, the Petitioners needed a permit to alter the critical area
unless subject to an exemption. Although the statutes prohibit new erosion control structures
seaward of the setback line, landward of the setback line such structures located within OCRM
jurisdiction may be permitted at OCRM's discretion.
Petitioners reiterate their argument that the statutes and regulations promulgated thereto do
not confer upon OCRM authority to regulate any construction landward of the setback line. As
stated in the Order denying summary judgment, the legislature defined the areas over which OCRM
has control. That area included beaches. The delineation and creation of the setback line and the
baseline did not divest OCRM of jurisdiction over those areas landward of the setback line when
oceanfront beaches are subject to tidal wave action. In fact, the regulations promulgated by OCRM
and adopted by the legislature allow OCRM to take action in cases in which the "active beach"
affects certain structures. OCRM jurisdiction is restricted to the critical area which includes
tidelands, beaches, coastal waters, and the beach/dune systems which extend to the setback line.
Beach includes those lands subject to periodic inundation by tidal and wave action so that no
nonlittoral vegetation is established.
With respect to Petitioners' application to install sandbags, the statutes are clear. No new
erosion control structures or devices are allowed seaward of the setback line except to protect a
highway which existed on June 25, 1990. The evidence is uncontroverted that Petitioners seek to
erect a revetment which is a sloping structure built along an escarpment to protect the shoreline from
erosion or to erect a seawall which is a retaining wall designed specifically to withstand normal wave
forces. Although Petitioners have applied for a structure resembling a seawall (which is also an
erosion control structure under the statute), their expert and OCRM's expert agree that the
appropriate configuration to provide the protection sought is equivalent to a revetment. The design
envisioned by Petitioners' expert is to slope the sandbags against the wooden pilings. Such a
configuration would require construction of the revetment seaward of the setback line. This is
absolutely prohibited by law.
The Department is directed to severely restrict the use of hard erosion control devices and
to encourage in their place soft technologies which will provide protection of the shoreline without
long-term adverse effects. S.C. Code Ann. §48-39-260(3); 23A S.C. Code Ann. Regs. 30-11(D)(2).
Petitioners argue that the sandbags are soft erosion control structures because they are subject to
destruction by waves and debris and can be removed if necessary. However, a structure made from
five by ten foot sandbags weighing two tons each that have to be installed with heavy machinery is
a hard erosion control device. See, Jerozal v. S.C. Department of Health and Environmental
Control, Charleston County Court of Common Pleas No. 95-CP-10-4365, Order of Judge Larry R.
Patterson, dated April 4, 1997, nunc pro tunc September 6, 1996. The law does not define an
erosion control structure by the type of material used to construct it.
Petitioners also argue that the use of these sandbags is only a temporary measure and any
harm is only temporary in nature and will not have long term adverse impacts upon the beach, shore
or beach/dune system. The Beachfront Management Act does not attempt to distinguish between
permanent and temporary erosion control structures. Instead the policies are to "severely restrict the
use of hard erosion control devices to armor the beach/dune system and to encourage replacement
of hard erosion control devices with soft technologies as approved by the department which will
provide for the protection of the shoreline without long-term adverse effects." S.C. Code Ann. § 48-39-260(3). The policies also "encourage the use of erosion-inhibiting techniques which do not
adversely impact the long-term well-being of the beach/dune system." S.C. Code Ann. § 48-39-260(4). The issue is not whether the sandbags are temporary or permanent but whether the
installation of the sandbags will have long-term adverse effects on the beach/dune system and the
shoreline.
OCRM has determined that the existence of these five foot by ten foot sandbags will have
at least three effects on the beach/dune system and the shoreline. These are: (1) interruption of
onshore transport of littoral flow - interruption of sand as it moves along the beach; (2) localized
scour around the bags lowering the beach profile and access by the public; (3) the revetment limits
erosion of the uplands and therefore limits the amount of sand that washes from the uplands to the
beach. The evidence demonstrated that this area of Isle of Palms is already beginning to experience
some recovery which may take between two and five years. OCRM did not expect the recovery of
the beach to exceed the level achieved in the early 1990's in which the shoreline was at its most
seaward location. While Sullivans Island has had a positive experience with the use of these large
sandbags, it is not subject to the same dynamics as the Isle of Palms. Over the long-term, as Isle of
Palms is expected to accrete, the use of these two ton sandbags as requested by Petitioners will
harden the shoreline.
Additionally, the Department of Natural Resources has identified potential adverse impacts
on threatened species of wildlife. Particularly in the instant case, the Atlantic Loggerhead Sea Turtle
is the affected species. Sea turtles in South Carolina are considered a threatened species. 27 S.C.
Code Ann. Regs. § 123-150.1 (1992). It is specifically prohibited to "take" a sea turtle. Id. The
Loggerhead is listed as threatened on both the South Carolina and federal lists. 27 S.C. Code Ann.
Regs. 123-150.2 (1992); 50 C.F.R. 17.42(b) (1997). This species also holds special status in South
Carolina, having been named the Official State Reptile. S.C. Code Ann. § 1-1-625 (Supp. 1997).
The Beachfront Management Plan favors protection of sea turtles, stating that one of the objectives
is to "[l]imit man's impact to sea turtle nesting areas by use of ordinances at local and state
government levels." 23A S.C. Code Ann. Regs. § 30-21(B)(5)(c) (Supp. 1997). The Plan continues,
identifying Loggerheads as threatened and establishing guidelines for the management of turtles
using the beaches, citing among other reasons for the threatened status of the species - the armoring
of beaches. 23A S.C. Ann. Regs. § 30-21 (F)(5)(a)(i) (Supp. 1997).
The Loggerhead turtles use the north end of Isle of Palms as a nesting area. The turtles
require dry sand to nest in. The proposed erosion control devices could result in "false crawls" by
the sea turtles and prevent the laying of eggs. The resulting long-term effects on the sea turtle
population could be serious. A continued reduction of the already limited suitable nesting habitats
would certainly endanger an already threatened species, and runs contrary to the explicit goals and
policies of not only South Carolina, but the United States as well. OCRM properly considered the
possible impact of the erosion control devices on the turtles and concluded such devices are
detrimental to the species and contrary to the law. The evidence in the record supports this
conclusion.
Petitioners further allege that OCRM regulations provide for an exception to the permit
requirements for normal maintenance and repair. 23A S.C. Code Ann. Regs. 30-5(D) applies only
to work on a structure which has been previously permitted or is grandfathered or exempted and is
still generally intact and functional in its present condition. The work may extend only to the
original dimensions of the structure. Any expansion, additions, or major rebuilding requires a permit
or written approval by the Department. Construction of the revetment as proposed by the Petitioners
does not constitute normal maintenance or normal repair. In fact, these measures constitute
extraordinary maintenance or repair. Although maintenance is designed to preserve the structure
from failure or decline, the use of sandbag revetments is not normal maintenance of these structures.
However, a permit is not required for emergency repairs to an existing bank, dike, fishing
pier, or structure, other than oceanfront erosion control structures or devices, which has been erected
in accordance with federal and state laws or provided for by general law or acts passed by the
General Assembly. S.C. Code Ann. § 48-39-130(D)(6) (Supp. 1997); 23A S.C. Code Ann. Regs.
30-5(A)(6) (Supp. 1997). Emergency is defined as "any unusual incident resulting from natural or
unnatural causes which endanger the health, safety or resources of the residents of the State,
including damages or erosion to any beach or shore resulting from a hurricane, storm or other such
violent disturbance." S.C. Code Ann. § 48-39-10(U) (Supp. 1997). Any emergency repair to these
structures can be done without a permit from OCRM. At first glance, it appears that such relief is
available to the Petitioners. The definition of emergency, however, precludes such relief. The
phenomena of shoal attachments is not an "unusual" incident occurring on Isle of Palms. In fact,
shoal attachments are a regular and integral part of the coastal processes that make Isle of Palms an
accretional beach. Although the effects of this phenomenon may create disturbance to the shoreline,
it is not the same type of sudden or violent event as a hurricane or storm.
No permit is required for the accomplishment of emergency orders issued by the Department
to protect public health and safety. S.C. Code Ann. § 48-39-130(D) (Supp. 1997); 23A S.C. Code
Ann. Regs. 30-5 (Supp. 1997). Petitioners have availed themselves of the protections allowed in
these emergency orders. Such emergency orders only allow sandbags, sandscraping, or
renourishment, or a combination of these within the beach critical area and then only as provided by
the Department. S.C. Code Ann. § 48-39-130(D)(1) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-5(A)(1) (Supp. 1997). The Department's Guidelines for Emergency Use of Sandbags allow a
maximum size of five gallon sandbags to be used which must be removed within three months of
installation unless they are completely buried by a dune.
The construction of the sandbag revetment as proposed by the Petitioners' expert is not an
emergency repair to the structures. Rather, this is construction of a separate structure. The
application by Petitioners seeks to install the sandbags under the foundation of their homes
extending outward and across the vacant lot. This is certainly prohibited under the statutes and
regulations.
Likewise, the installation of the revetment in front of Building One at Summer House is
construction of an erosion control structure that is not subject to any exceptions. Building One was
in imminent danger at the time Summer House began to use sandbags. However, since the sandbags
have been installed and sand has been scraped, the beach has shown some recovery. For at least six
months, Summer House has not experienced any erosion or had to replace sandbags or scrape sand.
A portion of Summer House is still on active beach as the escarpment line is landward of Building
One. It is still within the critical area and therefore within OCRM jurisdiction. The building is no
longer threatened, does not need emergency repair, and the installation of a revetment extending for
approximately 100 linear feet is not required to protect the building.
When permitting, the Department is required to consider cumulative impacts of the project.
Due to the shoal attachments in the north end of Isle of Palms, issuing this permit could require
OCRM to issue many other similar permits which would result in revetments installed the length of
the shoreline. It would also require OCRM to issue similar permits at other beach locations,
renewing the proliferation of erosion control structures which the Beachfront Management Act was
intended to prevent. Prior to adoption of the Beachfront Management Act, it was difficult to deny
successive permits for erosion control structures in the same community once any such structure was
permitted. For this reason, whole islands such as Hilton Head, Folly, and Fripp are almost entirely
armored. This demonstrates the likelihood of cumulative impacts of erosion control structures.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
Jurisdiction, Controlling Principles, and Standard of Proof
1. The Administrative Law Judge Division has subject matter jurisdiction pursuant to
S.C. Code Ann. § 48-39-150(C) (Supp. 1997), S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp.
1997), and 23A S.C. Code Ann. Regs. 30-6(B) (Supp. 1997).
2. The proposed project area is within the critical area of the state and is within the
jurisdiction of OCRM.
3. In determining whether a permit application is granted, the administrative law judge
must base his determination on the individual merits of each case, the policies specified in Sections
48-39-20 and 48-39-30, and the ten general considerations contained in § 48-39-150(A) (Supp.
1997). Regulations properly promulgated have the force and effect of law. Goodman v. City of
Columbia, 318 S.C. 488, 458 S.E.2d 531 (1995).
4. The proper standard of proof to be applied in a contested case conducted pursuant to
the Administrative Procedures Act is a preponderance of the evidence. Anonymous (M-156-90) v.
State Bd. Of Medical Examiners, Op. No. 24754 (S.C. Sup. Ct filed January 26, 1998) (Davis Adv.
Sh. No. 5 at 11); National Health Corp. v. South Carolina Dep't. of Health and Envtl. Control, 298
S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
5. Findings of fact based upon a "preponderance" of the evidence are those reflected by
the greatest "weight, amount, credibility or truth" as reflected by the whole of the evidence before
the court, or "evidence which convinces as to its truth." Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d
225, 235 (1955); Nettles v. Nettles, 138 S.C. 318, 136 S.E. 297 (1927).
6. The trier of fact must weigh and pass upon the credibility of evidence presented. See
S.C. Cable Television Ass'n. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge is in the best position to weigh witnesses' demeanor and veracity and to
evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay
v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct.
App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
7. "If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of opinion or otherwise."
Rule 702, SCRE.
8. An expert is granted wide latitude in determining the basis of his or her opinion.
Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier
of fact must weigh its probative value. Small v. Pioneer Machinery, Op. No. 2748 (S.C. Ct. App.
filed November 17, 1997) (Davis Add. Sh. No. 32 at 7); Berkeley Elec. Coop. v. South Carolina
Public Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991).
9. The trier of fact is not compelled to accept an expert's testimony, but may give it the
weight and credibility he determined it deserves and may accept the testimony of one expert over
another. S.C. Cable Television Ass'n. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992); Florence County Dep't of Social Servs. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App.
1992).
Statutory Considerations
10. It is the policy of South Carolina to "protect, preserve, restore, and enhance the
beach/dune system" and "to create a comprehensive, long-range beach management plans for the
protection, preservation, restoration, and enhancement of the beach/dune system." S.C. Code Ann.
§ 48-39-260(1) & (2) (Supp. 1997). The legislative declaration of state policy also provides that the
state policy is "to formulate a comprehensive beach erosion and protection policy including the
protection of necessary sand dunes." S.C. Code Ann. § 48-39-30(B)(4) (Supp. 1997).
11. Section 48-39-130 (C) (Supp. 1997) prohibits anyone from erecting any structure on
or in any way altering any critical area without first obtaining a permit. Section 48-39-130(D) (Supp.
1997) provides the exceptions.
12. Critical areas are defined as any of the following: (1) coastal waters; (2) tidelands;
(3) beaches; (4) beach/dune system. S.C. Code Ann. § 48-39-10(J) (Supp. 1997). "'Beaches' means
those lands subject to periodic inundation by tidal and wave action so that no nonlittoral vegetation
is established." S.C. Code Ann. § 48-39-10(H) (Supp. 1997). Further, S.C. Code Ann. § 48-39-270(13) states that "[a]ctive beach is that area seaward of the escarpment or the first line of stable
natural vegetation, whichever first occurs, measured from the ocean." Summer House and the
Reeves, Heritage and Hayes houses are located on the "beach" and "active beach" and are all within
the critical area.
13. Section 48-39-210 gives exclusive state permitting authority to DHEC for any
alteration or utilization within the critical area except for exemptions granted under Section 48-39-130(D). These exemptions make it unnecessary to apply for a permit for "[e]mergency repairs to an
existing bank, dike, fishing pier, or structure, other than oceanfront erosion control structures...."
S.C. Code Ann. § 48-39-130(D)(6) (Supp. 1997).
14. Erosion control structures or devices include revetments which are defined as a
sloping structure built along an escarpment or in front of a bulkhead to protect the shoreline or
bulkhead from erosion. S.C. Code Ann. § 48-39-270(1)(c) (Supp. 1997).
15. The use of sandbags as emergency measures to protect public health and safety is
specifically authorized by Section 48-39-130(D)(1). The emergency orders issued by the Department
limit the size of the sandbags to five gallons.
16. A permit is not required for emergency repairs to an existing bank, dike, fishing pier,
or structure, other than oceanfront erosion control structures or devices, which has been erected in
accordance with federal and state laws or provided for by general law or acts passed by the General
Assembly. S.C. Code Ann. § 48-39-130(D)(6) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-5(A)(6).
Emergency is defined as "any unusual incident resulting from natural or unnatural causes which
endanger the health, safety or resources of the residents of the State, including damages or erosion
to any beach or shore resulting from a hurricane, storm or other such violent disturbance." S.C.
Code Ann. § 48-39-10(U) (Supp. 1997). The shoal attachment causing the erosion to the beach is
not an unusual incident or similar in nature to a hurricane, storm, or other violent disturbance.
17. The state's policy also is to encourage the use of erosion-inhibiting techniques which
do not adversely impact the long-term well-being of the beach/dune system. S.C. Code Ann. § 48-39-260(4) (Supp. 1997). The Department is directed to severely restrict the use of hard erosion
control devices and to encourage their replacement with soft technologies which will provide
protection of the shoreline without long-term adverse effects. S.C. Code Ann. § 48-39-260(3) (Supp.
1997); 23A S.C. Code Ann. Regs. 30-11(D)(2) (Supp. 1997).
18. Soft technologies include sand scraping and the use of sandbags as authorized in the
emergency orders. Hydraulically filled five foot by ten foot sandbags weighing in excess of two tons
are not soft technologies.
19. OCRM regulations also provide an exception for "normal maintenance and repair."
23A S.C. Code Ann. Regs. 30-5(D). This exception only applies to work on a structure which has
been previously permitted, is grandfathered, or is exempted. Normal maintenance and repair can only
extend to the original dimensions of the structure. S.C. Code Ann. § 48-39-130; S.C. Code Ann.
Regs. 30-5(D) (Supp. 1997). The proposed construction does not constitute normal maintenance and
repair of the structures.
20. S.C. Code Ann. § 48-39-150 (A) and Regs. 30-11 provide the ten general
considerations for OCRM in weighing a permit application. OCRM weighed the permit application
based upon these factors and cited several of these factors as a basis to deny the permit applications.
21. Of the factors considered, items (3) the extent to which the project affects the
production of fish, shrimp, oysters, crabs or clams or any marine life or wildlife or other natural
resources; (4) the extent to which the activity could cause erosion; (5) the extent to which the
development could affect existing public access to beaches or other recreational coastal resources;
(6) the extent to which the development could affect the habitats for rare and endangered species of
wildlife; and (10) the extent to which the proposed use could affect the value and enjoyment of
adjacent owners, were enumerated by OCRM in denying the permit.
22. The proposed project, in the long term, would adversely affect the sea turtles (a
threatened species) and their ability to nest. The proposed activity would cause erosion from the
wave action along the revetment and the lowering of the beach profile thereby affecting public access
to the beach. The revetment adversely affects adjoining property owners by preventing the littoral
drift of sand which may cause further erosion at other areas of the beach.
ORDER
Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, it is hereby
ORDERED, that the application of Summer House Horizontal Property Regime for 5' by
10' sandbags installed along the eroding oceanfront escarpment line at Summer House Building One
is denied;
IT IS FURTHER ORDERED, that the application of Ken Heritage, Richard Reeves &
Chris Hays for the installation of 5' by 10' sandbags under their homes and across the vacant lot is
denied;
AND IT IS SO ORDERED.
_______________________
ALISON RENEE LEE
Administrative Law Judge
April 28, 1998
Columbia, South Carolina.
1. These emergency measures are allowed for properties in the beach/dune critical area
without a permit. A condition of the emergency order is that the erosional scarp must be within
ten feet of the habitable structures. |
