South Carolina Lawyer48

Climate Change, Beach Erosionand Beachfront Regulation

By Mary Shahid, Angelica Colwell and Kara Grevey

The South Carolina Departmentof Health and EnvironmentalControl (DHEC) will be embarkingon a legislative initiative to amendS.C. Code Ann. §§ 48-39-250 et seq.,the Beachfront Management Act(BMA),1 based on action taken thissummer by the agency’s governingBoard. The Board provided approvalto its staff to begin drafting revisionsto the BMA that incorporate recom-mendations of the Blue RibbonCommittee on ShorelineManagement (BRC). The BRC wascreated by DHEC in 2010 to reviewthe adequacy of the BMA “to ensurethe long-term health and sustain-ability of our coastal resources andthe communities that are dependenton them.”2 The final report of theBRC was made available in Februaryof 2013 and addressed the chal-lenges that have begun to emergealong the beachfront.3 These chal-lenges include chronic erosion andsea level rise.

South Carolina boasts 187 miles

of Atlantic Ocean shoreline, 114 ofwhich are accessible to the public.4

While the state’s coast is character-ized by pristine white beaches androlling sand dunes, the coastlineitself is in a constant state of fluxdue to a common coastal process—beach erosion.5 Generally, areas thatare erosional over the long-termhave experienced both increases inhuman development and sea levelrise, the two leading causes of beachmigration.6 Tide gauges show thatsea level has risen an average of 1.7mm a year during the 20th century.7

Satellite data indicates an even larg-er increase of 3.17 mm a year since1993.8 Recent studies have suggestedsea level rise by the end of the cen-tury as being close to a meter ormore.9 South Carolina is not exemptfrom the global trend. Sea level inthe Charleston area has risen nearlya foot during the last century.10

A rise in sea level may have vari-ous consequences. First, beachesand marshes adjacent to develop-

ment may experience increasedflooding.11 In addition, sea level risehas the potential to magnify theimpacts of storms by raising thewater level that storm surgesaffect.12 Storm surges already pose athreat to coastal regions, floodinglow-lying areas, damaging propertyvalues and destroying habitats.13 Yetsea level rise has not been a deter-rent to growth and development inSouth Carolina’s coastal counties.From 1990 to 2000, more than one-fourth of the state’s growth (28.1percent) occurred in the eightcoastal counties.14 The most recentcensus data indicates SouthCarolina’s coast now has three ofthe nation’s fastest growing countiesand three of its fastest growingmunicipalities.15 Nor has the threatof sea level rise impacted coastalproperty values. In 2007 the averagecost of a home on Sullivan’s Islandwas $905,000.16 Now values haveincreased as much as 60 percent to$1.5 million.17 IL

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These trends and concernsprompted the BRC to offer 16 rec-ommendations. The Board adoptedeight of the 16 recommendations,all of which would require either astatutory amendment to the BMA orto regulations. Certain recommenda-tions of the BRC as adopted by theBoard will, at best, interfere withinvestment-backed expectations orcause a temporary or partial loss ofuse of valuable property and, atworst, lead to a denial of all eco-nomically viable use of valuableproperty. These include a restrictionon seaward movement of the base-line and on construction of habit-able structures on renourished shore-lines. In addition, the Committeerecommends removal of local gov-ernments from their traditional roleof identifying storm-related emer-gency events and restricts ocean-front golf course construction. Theseadditional recommendations war-rant scrutiny from a public policyand economic perspective.

Recommendation: Amend S.C. Code§ 48-39-280 to eliminate any future

seaward movement of the baseline.The baseline is a jurisdictional

boundary line established by DHEC.The baseline is set on the landwardcrest of the primary oceanfront sanddune or at the most landward pointof erosion at any time during thepast 40 years.18 Since the adoptionof the BMA in 1988, property own-ers are required to disclose the loca-tion of the baseline in any deed orpurchase contract for oceanfrontproperty. Prospective purchaserswho seek information regarding theimpact of the baseline on an ocean-front lot learn that the baseline andanother jurisdictional line, the set-back line, are reviewed and revisedevery eight to 10 years to reflectboth erosional and accretionaltrends. Consequently, a propertyowner has a reasonable expectationof seaward movement of the base-line on a stable or accretional beach.Construction seaward of the base-line is restricted and requires aDHEC permit. The baseline positionon an oceanfront lot is a significantissue for a property owner.

The BRC’s recommendation was

based on the assumption that anoceanfront property owner shouldnot expect to gain any benefit fromaccreted property.19 DHEC’s justifica-tion for adoption of the recommen-dation was to limit encroachmentinto areas considered unstable andhazardous.20 In both instances theunderlying basis for the recommen-dation is flawed. The seawardboundary of most oceanfront lots ismean high water, which is a movingboundary based on shorelinechange. When the lot erodes, meanhigh water migrates onto what wasformerly private property andreduces the size of the lot. Whenthe lot accretes, mean high waterextends potentially beyond its posi-tion at the time the lot was platted.The legislature has already limitedan oceanfront landowner’s ability toassert ownership to property accret-ing beyond the original boundaryline. “[N]o property rebuilt oraccreted as a result of natural forces… shall exceed the original propertyline” and “no person … may devel-op ocean front property accreted …beyond the mean high water

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mark.”21 But an oceanfront propertyowner should enjoy the benefit ofaccretion up to the location ofmean high water at the time the lotwas platted. The BRC ignored thesewell-settled principles of boundarylaw in recommending that the base-line be fixed so as to prevent alandowner from enjoying the bene-fits of accretion up to the plattedseaward boundary line.

The Board may repeat history,seeking to limit encroachment intoareas presumably unstable. Theunderlying basis for the seminalconstitutional challenge to the BMA,Lucas v. South Carolina CoastalCouncil, 22 was that landownersshouldn’t be allowed to use propertythat may become unstable. The BMAinitially prohibited all new construc-tion seaward of the baseline. DavidLucas’ two beachfront lots were sea-ward of the baseline but were entire-ly suitable for residential construc-tion, although at some point duringthe past 40 years prior to Lucas’ownership the shoreline hadencroached on the lots. A regulatoryprohibition that denies a landownerall economically viable use of prop-erty did not survive constitutionalscrutiny. A newly adopted propertyrestriction to eliminate the seawardmovement of the position of thebaseline to prohibit encroachmentinto areas that, at some time in thepast, were unstable arguablyamounts to a resuscitation of thesame policies that were determinedto be over-reaching in Lucas.

Recommendation: The Departmentshall consider whether a proposedstructure would be constructed on arenourished beach.

The BRC recommended that“DHEC should consider historicalbeach nourishment in determiningthe vulnerability of a property duringthe evaluation of a special permitrequest.” 23 The BRC concludes that“beach renourishment may provide aviable temporary option for restoringthe beach; it is not a long-term orpermanent solution.”24 DHEC soughtBoard approval of this recommenda-tion “to potentially deny a permitapplication if the beach seaward ofthe baseline is determined to be

unstable and hazardous.”25

S.C. Code Sec. 48-39-290 pro-vides for issuance of a special permitseaward of the baseline. This sectionis one of the substantive amend-ments adopted in 1990, after theLucas challenge was filed. This sec-tion operates as a variance, allowingfor construction seaward of the base-line including the construction of ahouse. Since the adoption of theamendments to the BMA in 1990,DHEC has not denied an oceanfrontproperty owner the right to constructa residence on an oceanfront lot.However, the recommendation thatDHEC consider beach nourishmentin the assessment of the vulnerabilityof a property for the purpose ofpotentially denying the use of theproperty evokes Lucas. This changehas a far-reaching effect. Many areasof shoreline, because of single signifi-cant storm events or episodic ero-sional events, have required renour-ishment prior to natural recovery. Asthe BRC noted, 116 EmergencyOrders have been issued by localgovernments allowing a combinationof renourishment and other meas-ures to address localized erosion.26

Consequently, there are numerousbeachfront properties impacted bythe Committee’s policy of restrictingdevelopment on lots and parcels thathave been renourished.

This recommendation alsoreflects a rejection of a long-stand-ing policy promoted by the BMA.The BMA promotes soft-solutions toerosion. Beach renourishment is themost commonly used soft solutionto restore an eroding shoreline andto protect upland development. Thelegislative declaration of state policyin the BMA includes “encourag[ing]the use of erosion-inhibiting tech-niques which do not adverselyimpact the long-term well-being ofthe beach/dune system” and “pro-mot[ing] carefully planned nourish-ment as a means of beach preserva-tion and restoration where econom-ically feasible.”27

Many beachfront communitiesand private developments haveembraced these policies and havespent hundreds of thousands of dol-lars in designing and permittingbeach nourishment projects. The

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BRC determined that at least 25major renourishment projects haveoccurred since 1985. A combinedtotal of $233 million has been spenton renourishment.28 In addition,coastal communities are committedto periodic renourishment andactively explore funding mecha-nisms to ensure that renourishmentis performed when needed. HiltonHead Island implemented anaccommodations tax that providesthe funding for periodic renourish-ment of the island’s beaches andbeachfront communities. FollyBeach receives federal monies for aperiodic renourishment projectdesigned to redress the negativeimpacts of the Charleston Harborjetties on sand transport and sedi-ment supply to Folly Beach. TheGrand Strand has also benefittedfrom federal and state appropria-tions for renourishment. Any actiondiscouraging the use and economicviability of renourished beachfrontlots appears to be contradictory tothe state policy of promoting softsolutions to beach erosion.

Recommendation: Prohibit the con-struction of new golf courses and themodification or expansion of existinggolf course seaward of the baseline.Normal repair, maintenance andreplacement to existing conditions willbe allowed.

The rationale of the BRC for thisrecommendation was the need to“prohibit the installation of infra-structure and landscaped course fea-tures in unstable areas and to pre-vent the seaward expansion of golfcourses in the event of natural ormanmade shoreline accretion.”29

The Board adopted the recommen-dation based on its belief that“course development should occuraway from highly unstable beachareas seaward of the baseline.” 30

Such construction has beenauthorized since adoption of theBMA based on the conclusion that“golf courses … adjust to a changingshoreline more readily than othertypes of land uses.”31 Express author-ization for construction of golfcourses seaward of the baseline isprovided for in S.C. Code Ann. § 48-39-290(A). Since the adoption of the

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BMA and until the Board’s recentaction, golf courses were consideredto be appropriate uses of areas sea-ward of the baseline. The basis forthis change in sentiment is the needto prevent “landscaping” and “infra-structure” from unstable areas.

South Carolina is home tonotable links courses adjacent to theocean. Wild Dunes includes twolinks courses. Harbour Town onHilton Head is a links course as isthe Ocean Course on Kiawah. Thesegolf courses host major champi-onship play, service famous resortareas and are central to the econom-ic impacts of tourism to theseresorts. Portions of these courses arelocated seaward of the baseline.Traditionally, in Scotland, “links”are strips of land adjacent to theocean. The proximity of playingareas to the ocean is integral to thedesign of links courses. While theBoard is preserving the ability torepair, maintain and replace por-tions of golf courses seaward of thebaseline, any modification seawardof the baseline is prohibited. Suchrestriction could have a significant

negative impact on the playabilityof these golf courses. And, a prohi-bition that results in banning con-struction of any new links coursesneeds consideration as a matter ofpublic policy as it relates to the eco-nomic benefit derived from the abil-ity to construct internationally rec-ognized golf courses.

Recommendation: Eliminate localgovernment’s role in declaring anemergency that warrants the use ofsandbags to respond to erosion.DHEC will become the “sole issuanceauthority” for requests to use sandbags for flood control.32

Since the inception of coastalzone management in 1977, localgovernments are empowered todeclare emergencies related to“damages or erosion to any beach orshore resulting from a hurricane,storm or other such violent distur-bance.”33 Upon such declarationproperty owners were allowed to usefive-gallon sandbags installed alongthe escarpment to protect improvedproperties. The BRC concluded that“serious deficiencies exist … pertain-

ing to when it is appropriate toissue an Emergency Order.”34 Thisconclusion is based on a findingthat there are “several reasons torestrict the use of sandbags foremergency erosion control.”35 AsDHEC advances its cause to the leg-islature, inquiry is needed as to thebasis for restricting the use of five-gallon sandbags, made of biodegrad-able material, that contain cleanbeach sand. The harm, if any,caused by this method of flood con-trol may not outweigh the signifi-cant benefit to individual developedproperties facing rising waters.

The Board intends to accom-plish this change without a statuto-ry amendment.36 Presently, the fol-lowing activities are statutorilyexempt from the requirement toobtain a DHEC permit: “The accom-plishment of emergency orders ofan appointed official of a county ormunicipality or of the State, actingto protect the public health andsafety, upon notification to thedepartment. However, with regardto the beach/dune critical area, onlythe use of sandbags, sandscraping,

South Carolina Lawyer54

or renourishment, or a combinationof them, in accordance with guide-lines provided by the department isallowed pursuant to this item.”37

A local official is currently statu-torily empowered to issue anEmergency Order and allow a prop-erty owner to utilize sandbags infront of a structure on an erodingshoreline to combat rising water.The guidelines referenced in thisexemption dictate the size and typeof material utilized. To accomplish,with any clarity, what DHECintends to accomplish would appearto require a statutory amendment.More importantly, the use of sand-bags has been critical to the protec-tion of beachfront homes duringepisodes of erosion. Local govern-ments have responded at least 116times since 1985 and issued emer-gency orders authorizing sandbags,sandscraping or minor renourish-ment, or a combination of the threepermissible remedies. The BRC’s rec-ommendation, adopted by theBoard, is to divest local authoritiesof the ability to declare an emer-gency on behalf of local taxpayersand constituents and transfer thatauthority exclusively to DHEC.

The BMA was adopted becauseof the same trends, data and con-cerns prompting the Board’s actionsin 2013. Any future proposedrestrictions on oceanfront develop-ment should undergo review todetermine if the land use or activitybeing restricted is an actual threat tothe state’s beaches.

Mary Shahid is a member,Angelica Colwell is special counsel andKara Grevey is a law clerk in theCharleston office of Nexsen Pruet.

Endnotes1 The BMA was initially adopted in 1988 andsubstantively amended in 1990.

2 Letter from William W. Jones, Jr., BRCChairman, to Allen Amsler, Board Chairman(Feb. 5, 2013), available at www.scdhec.gov/administration/library/CR-010631.pdf.

3 See Blue Ribbon Committee on ShorelineManagement, Final Report,Recommendations for Improved BeachfrontManagement in South Carolina, available atwww.scdhec.gov/administration/library/CR-010631.pdf [hereinafter Final Report].

4 Beach Access, State of the Beach State Report,BEACHAPEDIA, www.beachapedia.org/State_of_the_Beach/State_Reports/SC/Beach

_Access (last visited July 31, 2013). 5 Frequently Asked Questions - BeachfrontProperty, SCDHEC-OCRM, www.scdhec.gov/environment/ocrm/faq_beach.htm#1 (lastvisited July 31, 2013) [hereinafter FAQBeachfront].

6 See id., see also Coastal Areas Impacts &Adaptation, EPA, www.epa.gov/climatechange/impacts-adaptation/coasts.html (last visited July 31, 2013) [hereinafter Impacts & Adaptation].

7 The Impact of Climate Change on the Mid-Atlantic Region, EPA, www.epa.gov/reg3artd/globclimate/ccimpact.html (lastvisited July 31, 2013) (citing U.S. ClimateChange, Changes Science Program, FinalReport, Abrupt Climate Change (2008))[hereinafter Mid-Atlantic Region].

8 Id. 9 See Bruce Henderson, Coastal N.C. CountiesFighting Sea-Level Rise Prediction,NEWSOBSERVER (May 28, 2012), www.newsob-server.com/2012/05/28/2096124/coastal-nc-counties-fighting-sea.html.

10 FAQ Beachfront, supra note v. 11 Sammy Fretwell, Ex-wildlife chief warns ofclimate change in SC, THE STATE (Feb. 26,2013), www.thestate.com/2013/02/26/2650685/ex-wildlife-chief-warns-of-climate.html.

12 Impacts & Adaptation, supra note vi. 13 Id.14 The Changing Faces and Places of CoastalSouth Carolina, SCDHEC-OCRM, www.scdhec.gov/environment/ocrm/docs/CCF/FS_CF.pdf (last visited Aug. 12, 2013).

15 Bruce Smith, Census Data: SC PopulationGrowth Centers on the Coast, THE STATE (June13, 2013), www.thestate.com/2013/06/13/2817014/census-data-sc-population-growth.html.

16 Sullivan’s Island Homes for Sale, CAROLINAONE REAL ESTATE, www.locountry.com/sullivans_island_south_carolina.html (lastvisited Aug. 12, 2013).

17 See Wild Dunes Real Estate, www.wilddunesrealestate.com/search-mls-real-estate.php (last visited Aug. 12, 2013).

18 S.C. CODE ANN. § 48-39-280 (2008).19 Final Report, supra note iii, at 8.20 Blue Ribbon Committee on Shoreline

Management, Matrix of Recommendations(July 11, 2013) (on file with author) [here-inafter Matrix].

21 S.C. CODE ANN. § 48-39-120(B) (2008).22 505 U.S. 1003 (1992).23 Final Report, supra note iii, at 11.24 Id.25 Matrix, supra note xx. 26 Final Report, supra note iii, at 13.27 S.C. CODE ANN. §§ 48-39-260(4) and (5)

(2008).28 Final Report, supra note iii, at 20.29 Final Report, supra note iii, at 12.30 Matrix, supra note xx.31 S.C. CODE ANN. Reg. 30-13(Q) (2012). 32 Final Report, supra note iii, at 16. Matrix,supra note xx.

33 S.C. CODE ANN. § 48-39-10(U) (2008).34 Final Report, supra note iii, at 13.35 Id.36 Matrix, supra note xx.37 S.C. CODE ANN. § 48-39-130(D)(1) (2008).

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