SC Coastal Conservation League v. SCDHEC

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Coastal Conservation League, Appellant,

v.

South Carolina Department of Health and Environmental
Control and DeBordieu Colony Community Association,
Respondents.

Appellate Case No. 2021-000158

Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge

Opinion No. 6058
Heard March 7, 2024 – Filed May 1, 2024

AFFIRMED

Benjamin David Cunningham and Leslie S. Lenhardt,
both of S.C. Environmental Law Project, of Pawleys
Island, for Appellant.

Tracey Colton Green, of Columbia, and John Joseph
Owens and Randolph Russell Lowell, both of Charleston,
all of Burr & Forman, LLP, for Respondent DeBordieu
Colony Community Association.

Bradley David Churdar, of Charleston, and Sallie Page
Phelan, of North Charleston, for Respondent South
Carolina Department of Health and Environmental
Control.
KONDUROS, J.: The South Carolina Coastal Conservation League (the League)
appeals the administrative law court's (ALC's) order affirming the South Carolina
Department of Health and Environmental Control's (DHEC's) issuance of a permit
to Debordieu Colony Community Association (the Association) for the
construction of anti-erosion groins on the beach of Debordieu Colony (Debordieu
Beach). 1 The League contends the ALC erred in finding the groins would be
placed in a "high erosion" area, erosion threatened existing structures, and the
groins would not detrimentally impact the downdrift of sand to other beaches. We
affirm.

FACTS/PROCEDURAL BACKGROUND

The Association applied for a permit to execute a renourishment plan and construct
three groins 2 in an area of Debordieu Beach designated as Reach 3. 3 DHEC issued
the permit. The Belle W. Baruch Foundation 4 (Baruch), the neighboring downdrift

1
The ALC reviewed the grant of the permit based on the original application and
second amended application; the application was modified slightly based on
mediation with another party, Belle W. Baruch Foundation. For our purposes, the
difference between the two submissions is not important.
2
A groin is "a structure designed to stabilize a beach by trapping littoral drift.
Groins are usually perpendicular to the shore and extend from the shoreline into
the water far enough to accomplish their purpose. Groins are narrow and vary in
length from less than one hundred feet to several hundred feet. Groin fields are a
series of two or more groins which, because of their proximity to each other, have
overlapping areas of influence. Consequently, the entire groin field must be
considered as one system in order to accurately analyze beach response." S.C.
Code Ann. Reg. 30-1(26)(D) (Supp. 2023).
3
In the application, Debordieu beach is divided into four Reaches going north to
south and numbered sequentially.
4
Belle W. Baruch Foundation is a non-profit organization and owner of the
17,500-acre wildlife refuge, Hobcaw Barony, preserved for "purposes of teaching
and/or research in forestry, marine biology, and the care and propagation of
wildlife, flora and fauna" in connection with colleges and universities in the state.
https://sc.edu/study/colleges_schools/artsandsciences/baruch_institute/about/index.
php
property owner, and the League opposed the issuance of the permit. Baruch
negotiated a settlement with the Association, which provided for further assurances
that its property would not be negatively impacted by the construction of the
groins. The League remained in the suit and the ALC conducted a contested case
hearing.

Section 48-39-290(A)(8) of the South Carolina Code (Supp. 2023) provides that
for new groins to be erected seaward of the baseline, they must be on beaches:

that have high erosion rates with erosion threatening
existing development or public parks. In addition to
these requirements, new groins may be constructed, and
existing groins may be reconstructed, only in furtherance
of an ongoing beach renourishment effort which meets
the criteria set forth in regulations promulgated by the
department and in accordance with the following:

(a) The applicant shall institute a monitoring
program for the life of the project to
measure beach profiles along the groin area
and adjacent and downdrift beach areas
sufficient to determine erosion/accretion
rates. For the first five years of the project,
the monitoring program must include, but is
not necessarily limited to:

(i) establishment of new monuments;

(ii) determination of the annual volume and
transport of sand; and

(iii) annual aerial photographs.

Subsequent monitoring requirements must be based on
results from the first five-year report.

(b) Groins may be permitted only after
thorough analysis demonstrates that the
groin will not cause a detrimental effect on
adjacent or downdrift areas. The applicant
shall provide a financially binding
commitment, such as a performance bond or
letter of credit that is reasonably estimated
to cover the cost of reconstructing or
removing the groin and/or restoring the
affected beach through renourishment
pursuant to subitem (c).

At the contested hearing before the ALC, the League presented Matt Slagel, the
DHEC/Office of Ocean and Coastal Resource Management's (OCRM's) project
manager for the permit at issue, as an adverse witness in its case-in-chief. Slagel
stated the OCRM considers anything above about -3 feet per year to be a high
erosion rate "based on an analysis of our [almost 500] statewide network of beach
monuments." He indicated knowing the range of erosion rates rather than the
average was more important in evaluating whether an erosion rate is high. He
stated the rate of erosion in the proposed groin field was about -6 feet to -8 feet per
year. In examining a report created by OCRM for setback purposes, 5 Slagel
agreed some of the relevant area showed a rate of erosion less than -4 feet per year.
However, he explained the 2017 data for the report was skewed based on the
inclusion of a 2016 renourishment of Debordieu beach. Over time, renourishment
will artificially inflate the rate of erosion because more sand is there to erode. But
in this case, the aerial photograph of the shoreline used to establish the setback was
so close in time to the renourishment that it diminished the appearance of the
shoreline change rate. Slagel also referenced Regulation 30-21, entitled
Beachfront Management Plan, in which a subpart discussing beach access
describes Debordieu Colony as "a private beach community. Access is controlled
by a security gate. The entire beach is developed, and public access is nonexistent.
The island is highly erosional in areas." 6 As to threatened structures, Slagel
testified the relevant statute does not define the term. He stated DHEC has
considered the emergency order regulation in determining this question, noting that
the emergency order qualifies a structure as in "imminent danger" if it is twenty

5
The OCRM is charged with designating setback lines on all oceanfront properties
of the state at a distance forty times the average annual erosion rate. No setback
line can be less than twenty feet. This process must happen every seven to ten
years. See S.C. Code Ann. § 48-39-280(B)(C) (Supp. 2023); S.C. Code Ann. Reg.
30-1 (C)(6),(D)(47) (Supp. 2023).
6
S.C. Code Ann. Reg. 30-21(D)(5)(b) (2011).
feet from erosion. 7 He indicated about eighteen homes in the permit area have a
repeated history of being threatened depending on conditions.

Slagel stated the entire application for the permit was around 2,600 pages including
comments and letters from the public and other parties and agencies. He indicated
OCRM incorporated several recommendations, specifically from the South
Carolina Department of Natural Resources. He testified the OCRM reviewed the
alternative analysis presented in the permit application but agreed with the permit
application that the groin and renourishment was the most feasible plan. He also
testified the Association represented in the application it had a reserve fund and a
newly established preservation fund that would create $32 million for beach
projects including groins and maintenance. Slagel stated DHEC does not have
computer software to model the 3-D downdraft impacts included in the application,
but it examines the impacts in conjunction with its own data about erosion rates.
Additionally, he testified the permit application called for monitoring of the
downdrift area and included a mitigation trigger of -8.1 cubic yards per foot per
year at which point renourishment or reconfiguration of the groins would be
addressed. The amended permit application reduced the trigger rate to -6.0 cubic
yards per foot per year.

Dr. Rob Young testified for the League as an expert in coastal geology, coastal
processes, and coastal zone management policies. He opined Debordieu Beach did
not experience a high erosion rate as required by statute for the issuance of the
permit. He stated Debordieu Beach would not be considered a "hot spot." He
testified his opinion was based on his decades of work in this field and by
examining a report DHEC commissioned from Dr. Chester Jackson entitled
Mapping Coastal Erosion Hazards Along Shelter and Coastlines in South Carolina,
1849 to 2015 (the Jackson Report). 8 Dr. Young testified the Jackson Report found
the mean erosion rate of South Carolina beaches is -2.2 meters to -2.4 meters per
year or roughly -7 feet to -8 feet per year. In his opinion, the -5.46 feet per year
measured by Coastal Science and Engineering (CS&E) at Debordieu Beach would
constitute a "moderate" rate of erosion. Dr. Young stated he arrived at his opinion
by considering both a qualitative and quantitative approach. Qualitatively, beaches
that experience "very rapid high erosion rates" are characterized by "trees falling
over in the ocean, the forest dying" or "houses are sitting in the ocean."
Quantitatively, Dr. Young testified he would look to reliable measures, like the

7
S.C. Code Ann. Reg. 30-15(H) (Supp. 2023).
8
The Jackson Report is not in the record but according to Dr. Young is available
on DHEC's website.
Jackson Report, find an average erosional rate, and consider anything around that
number—in this case "six to seven feet per year"—would be "moderate." Dr.
Young opined the shoreline at issue was not "experiencing critical high erosion."

With regard to threatened structures, Dr. Young testified he believed existing
structures in the area were not threatened by coastal erosion. He stated that "if
your standard is the next big hurricane, well, then every structure on every barrier
island in South Carolina is threatened." As to downdrift impacts, Dr. Young
testified "the groins themselves will cause a downdrift impact." He stated "the
statute doesn't say you can pre-mitigate the harm that a shore perpendicular
structure is going to cause"; therefore, he opined that even if a permittee
renourishes the upper beach or takes steps to mitigate the impact, the statute is not
satisfied. The ALC inquired of Dr. Young whether the Jackson Report considered
a median erosion rate. 9 He indicated it did not contain a median and he had not
conducted such an analysis. Dr. Young acknowledged South Carolina has a
"pretty good span" of erosion rates 10 and conceded to the ALC's question that "ten
times the annual erosion rate" would threaten a home.

Dr. Tim Kana, president of CS&E, testified as an expert for DHEC in beach
erosion, coastal geomorphology and processes, sediment buckets and transport,
beach restoration, planning, design, and implementation, and tidal inlet sediment
dynamics. Dr. Kana testified his company had worked with DeBordieu Colony on
a long-term beach management plan and prepared the submission to DHEC. He
noted the area of Debordieu Beach at issue has a large gradient in erosion from
north to south and the groins are designed to try and offset the resulting sand loss.
Dr. Kana explained that the closure of an inlet around the 1930s precipitated the
increased erosion in the area. He stated the volumetric loss of sand in an area can
be converted to a shoreline change rate or linear measurement by multiplying the
former by a ratio of 1.3. Dr. Kana opined the -4.2 cubic yards per foot per year or
-5.8 to -6.0 feet-per-year linear rate constituted a moderate to high erosional rate.
He clarified that the south end of Debordieu Beach is eroding at a much greater
rate. He indicated he does not have a "hard and fast rule as to what is defined in
terms of statute as high, medium, [or] low," because it would depend on the

9
The median is the value in the middle of a data set, meaning that 50% of data
points have a value smaller or equal to the median and 50% of data points have a
value higher or equal to the median.
10
Dr. Young noted places like Harbor Island, Hunting Island, and Pritchard Island
have "dramatically high erosion rates."
"context of the setting." He indicated the erosion rate at south DeBordieu Beach is
"definitely" high.

Dr. Haiquing Kaczkowski, a registered professional engineer at CS&E, was
qualified as an expert in modeling studies and evaluations of coastal engineering
projects and in design and engineering of erosion control structures. She indicated
CS&E used two models to evaluate the downdrift impact of the groin installation: a
three-dimensional model and a one-dimensional model. Dr. Kaczkowski stated the
modeling showed the downdrift impact on Debordieu Beach would be limited to a
1500-foot zone immediately on the other side of the southern-most groin. She
explained this is how the volume of sand needed in renourishment was determined
and proposed. She indicated that overall, the downdrift area should experience a
positive impact. On cross-examination Dr. Kaczkowski acknowledged she had
previously stated during her deposition that -5 cubic yards per foot per year was a
magic number impacting whether you may be able to consider a soft solution, like
renourishment alone, or something else. However, she further indicated the
solution depended on where the project was located. She opined the erosion rate at
the project area was high and Debordieu Beach was currently in an "unhealthy"
state. She testified the community needed to act quickly to try and contain the
situation before it worsened.

William Eiser testified he is currently the president of Eiser Coastal Consulting but
previously worked for the OCRM from 1989 through 2015. Part of his work with
OCRM consisted of determining long-term erosion rates for purposes of evaluating
setback lines. Eiser also evaluated permit applications. He was qualified as an
expert in coastal processes and coastal zone management. Eiser testified that in his
opinion, the permit area in question had a high erosion rate. He explained anything
higher than -3 feet per year was high and the area in question historically had
erosion rates of -8 to -12 feet per year. The -3-feet figure was based on his
professional experience working with beach erosion in South Carolina and other
reports evaluating the erosion rate. Eiser alluded to a 1977 paper by Hubbard,
Haze, and Brown 11 indicating erosion rates are typically -1 to -3 feet per year and a
report by Dr. Kana from 1988 indicating that out of 88 miles of shoreline, 26 miles
were eroding at more than -1 foot per year. Eiser then testified regarding notes he
made from a 2009 report he prepared containing erosion rates for all the islands
and beaches in South Carolina. He indicated some areas represented miles of
coastline, like Myrtle Beach, while others represented a very small coastline, like
Harbor Island. He believed, based on that data, -3 feet per year represents a

11
This paper was not included in the record.
relatively high erosion rate, meaning existing structures, unless they are set back
many hundreds of feet, could potentially be impacted by the ongoing threat of
erosion. Eiser stated he did not think the groins would create detrimental impact to
the downdrift area because "the trapping capacity of the groins will be greatly
exceeded by the volume of sand that will be placed on the beach at the time the
groins are constructed. And because there is an ongoing commitment for future
beach renourishment projects for the life of the groins."

DHEC recalled Slagel who testified the erosion rate at the southern end of Reach 3
was higher than Reaches 1 and 2 and even the upper side of Reach 3. With regard
to Dr. Young's testimony, Slagel testified Dr. Young relied on an erosion rate that
excluded many of the State's shorelines because they do not all erode. Some
accrete and some remain relatively stable. According to Slagel, the Jackson Report
indicated the average overall shoreline change was -.14 meters or -.46 feet per
year. 12 Slagel also testified he had done additional computations based on data the
OCRM had collected as part of establishing setback lines and this calculation
produced an average erosion rate of approximately -1.46 feet per year. Slagel
testified a median number of the data would be -.11 feet per year.

The ALC affirmed the issuance of the permit, explaining it found Dr. Kana's
testimony to be the most credible and that the consideration of all rates of erosion
for beaches in South Carolina was not arbitrary or unreasonable. It stated

examining erosion rates in the context of shorelines
change rates as a whole provides a broader picture of
how certain erosional rates fall within the spectrum of the
[s]tate's rates as a whole. Overall, whether I follow
[DHEC]'s interpretation or that of Dr. Kana, I conclude
that the uncontested erosion rate of - 4. 2 cy/ft/yr or
- 5. 5 ft/yr is a high erosion rate under section 48-39-
290(A)(8).

As to threatened structures, the ALC concluded:

12
In Braden's Folly, LLC v. City of Folly Beach, 439 S.C. 171, 181 n.5, 886 S.E.2d
674, 680 n.5 (2023), the supreme court cited to the Jackson Report in a footnote
and stated "the average annual erosion rate for beaches in South Carolina is 1.8 feet
per year." The issue in that case was whether the change in the setback line would
warrant a taking of the plaintiff's property, so no discussion of the exact derivation
of this figure was included in the opinion.
In this case, by any reasonable definition, several
structures behind the southern portion of the bulkhead
and adjacent to it are threatened by erosion. The
photographic and video evidence from multiple site visits
showed water encroaching within feet of several of the
homes and overtopping the bulkhead, which is causing
erosion and scour behind the bulkhead in addition to
allowing water to flow toward the lower level of homes
directly behind the bulkhead. Some of this evidence was
procured while a storm passed by South Carolina, but
some was not. Water does not necessarily overtop the
bulkhead on a daily basis, but the bulkhead is exposed to
wave action on a daily basis and lacks the protection and
cover of a dry sand beach in front of it. Thus, erosion is
not only threatening the structures behind the bulkhead
but the structure of the bulkhead itself. It is imminently
clear that erosion is threatening existing structures and
this requirement of section 48-39-290(A)(8) has been
fulfilled.

With regard to detrimental downdrift impacts, the ALC found "if the statute only
allowed for groins that did not require mitigation or were placed so as not to create
a detrimental effect as the League suggests, then the statute would have no reason
to include monitoring, mitigation, and notice provisions for downdrift property
owners." This appeal followed.

STANDARD OF REVIEW 13

This [c]ourt will affirm a decision by the [ALC] unless the findings or conclusions
are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

13
As with all cases involving our state's exceptional coastline, we recognize the
General Assembly's desire to minimize alterations to tidelands except in limited
circumstances. See S.C. Code Ann. § 48-39-20(F) (2008) (noting the need to "give
high priority to natural systems in the coastal zone").
(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-610(B)(a)(f)(2023).

"The ALC is the finder of fact in contested case hearings related to DHEC
certifications and permits." S.C. Coastal Conservation League v. S.C. Dep't of
Health & Env't Control, 434 S.C. 1, 10, 862 S.E.2d 72, 77 (2021). "In determining
whether substantial evidence supports the ALC's decision, the [c]ourt must find
'looking at the entire record on appeal, evidence from which reasonable minds
could reach the same conclusion that the AL[C] reached.'" Id. (quoting Hill v. S.C.
Dep't of Health & Env't Control, 389 S.C. 1, 9-10, 698 S.E.2d 612, 617 (2010)). 14

LAW/ANALYSIS

I. High Erosion Rate

The League contends the ALC erred in finding the permit was for an area with a
high erosion rate as required by statute because the area in question only
experiences moderate erosion when compared to other eroding coastal areas.
DHEC and the Association maintain the permit area experiences a high erosion
rate based on an examination of all coastal areas including those that actually
experience accretion or remain stable. We disagree with the League.

Dr. Kana and Dr. Kazckowski testified the erosion rate in the permit area was high.
Dr. Kana acknowledged his deposition testimony indicating the overall rate for
Debordieu Beach might be characterized as moderate to high. However, he

14
We need not decide whether DHEC's interpretation of -3 feet-per-year as high is
appropriate or entitled to deference. Whether the erosion rate of -5.46 feet per year
contained in the permit application satisfies the statutory requirement of a high
erosion rate is the subject of this controversy.
clarified the specific area of the groins must be considered and the north-south
gradient along this area created a high erosion rate. Likewise, Dr. Kazckowski
acknowledged her deposition testimony that a rate of less than -5 feet per cubic
yard per year might call for soft solutions, but she clarified that position was case
dependent. She stated Reach 3 at Debordieu Beach required immediate attention.
According to Dr. Eiser, only 22 out of 86 miles of shoreline in South Carolina are
eroding at all. Of the list of beaches prepared by Eiser, 22 beaches have a lower
erosion rate than Debordieu Beach and seven have a higher rate of erosion.

Dr. Young testified an area with -6.6 feet per year or -8.8 feet per year was not an
area experiencing "critical high erosion." He further stated "in a state that has
shorelines with 'extremely high erosion rates that are on the order of tens of feet,
this—this would be moderate erosion.'" However, the statue does not require
"critical high erosion" or "extremely" high erosion rates. Carrying Dr. Young and
the League's argument that the mean of negative-only erosion rates dictates what is
high erosion to its conclusion could produce an absurd result. For example, if
erosion mitigation techniques are successful at various locales, the mean erosion
rate could be reduced, resulting in a lower high rate of erosion. Likewise, if certain
locales begin experiencing extreme rates of erosion, then a mean rate of erosion is
increased and what was once considered high is now in the moderate range. An
approach that focuses on the range of erosion rates, including accreting and stable
beaches, as Slagel suggested, brings a more predictable approach to what would be
considered high and does not exclude beaches with high erosion rates from the
protections of the statute simply because some other beaches have higher rates.
While differing sides might reasonably debate what, if any, methods should be
employed to prevent erosion, the statute allows the construction of new groins
under specified conditions. Based on the record presented, we find the ALC's
decision, based on the probative, substantial, and reliable evidence in the record, is
not clearly erroneous nor is it arbitrary or capricious.

II. Threats to Existing Structures

The League contends the ALC erred in finding existing structures were threatened
as contemplated by the statute. DHEC and the Association argue existing homes
are threatened because the erosion of Debordieu Beach places existing homes in
danger of flooding and damage in the case of significant weather events. We
disagree with the League.

Again, the statute does not define what constitutes a threat to an existing structure.
The League suggests a structure must be constantly threatened directly by erosion
to warrant groins. It also argues the ALC erred in considering the bulkhead to be a
structure. DHEC and the Association maintain a structure is threatened as
contemplated by the statute if it is recurrently threatened by the impact of weather
events made much more significant by erosion.

While neither interpretation is unreasonable, the League's interpretation is
somewhat inconsistent with the principle of permitting any new groins in
developed areas. This is evidenced by Dr. Young's testimony that all structures on
barrier islands are threatened by hurricanes. The statutory requirement of
threatened existing structures indicates the preservation of existing structures is
important to the legislature. To draw a distinction between stopping a structure
from floating away under typical weather conditions and allowing it to be
destroyed by incoming storm surge seems to undercut the purpose of saving
existing structures by permitting new groins at all. See Hinton v. S.C. Dep't of
Prob., Parole & Pardon Servs., 357 S.C. 327, 332, 592 S.E.2d 335, 338 (Ct. App.
2004) ("A law must be interpreted reasonably and practically, consistent with the
purpose and policy of the General Assembly."); see also Ga.-Carolina Bail Bonds,
Inc. v. County of Aiken, 354 S.C. 18, 22, 579 S.E.2d 334, 336 (Ct. App. 2003) ("A
statute should be given a reasonable and practical construction consistent with the
purpose and policy expressed in the statute.").

According to Slagel, at least eighteen existing structures in the permit area have a
"repeated history" of being threatened depending on conditions. Additionally,
Slagel testified the OCRM considered Regulation 30-15, which addresses
emergency barriers like sandbags and sand scraping efforts when evaluating a
permit request. That regulation provides a "structure is considered to be in
imminent danger when the erosion comes with twenty feet of that structure."
Therefore, Slagel reasoned if a structure is in "imminent danger" at twenty feet, a
structure could be "threatened" at some point beyond that. Furthermore, the ALC
relied on pictures and videos and did not exclusively base its findings on its
consideration of the bulkhead as a threatened structure.

Based on the substantial, reliable, and probative evidence in the record, we
conclude the ALC's decision was not clearly erroneous, arbitrary, or capricious,
and we affirm.

III. Detrimental Effect on Adjacent or Downdrift Areas
Finally, the League argues the ALC erred in affirming DHEC's finding that the
installation of the groins would not create a detrimental impact to downdrift
beaches. We disagree.

Dr. Young testified the groins would have a detrimental effect on downdrift
properties. However, his opinion was essentially based on the fact that groins are
designed to trap sand. All of DHEC's experts agreed the groins would trap sand
and therefore impact the downdrift beaches. However, Dr. Kaczkowski testified
the modeling performed by CS&E predicted the renourishment necessary to
maintain downdrift beaches and the permit proposal reflected that information.
The statute itself contemplates any party installing a groin will need to maintain
downdrift beaches through renourishment and provides that if monitoring indicates
unacceptable impact, the groins can be modified or even removed. The statute
requires permittees to understand this and requires them to demonstrate financial
responsibility to fund any or all of these efforts. Had the legislature not recognized
the inherent impact of groins, it would not have provided for measures to mitigate
such. See Duvall v. S.C. Budget & Control Bd., 377 S.C. 36, 42, 659 S.E.2d 125,
127-28 (2008) ("The [c]ourt must presume the [l]egislature intended its statutes to
accomplish something and did not intend a futile act."). Consequently, the
League's argument is without merit, and substantial evidence in the record supports
the ALC's decision. 15

CONCLUSION

Based on all of the foregoing, the decision of the ALC affirming DHEC's issuance
of the permit to the Association is

AFFIRMED.

WILLIAMS, C.J., and MCDONALD, J., concur.

15
We also note the adjacent downdrift property owner, Baruch, was sufficiently
satisfied with the Association's concessions regarding monitoring and
renourishment in that it ultimately acquiesced in the issuance of the permit.