Climate Change, Beach Erosion and Beachfront Regulation, 13 SCBJ, SC Lawyer, September 2013, #1

• Author: Mary Shahid, Angelica Colwell and Kara Grevey

Climate Change, Beach Erosion and Beachfront Regulation

Vol. 25 Issue 2 Pg. 48

South Carolina Bar Journal

September, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Mary Shahid, Angelica Colwell and Kara Grevey

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The South Carolina Department of Health and Environmental Control (DHEC) will be embarking on a legislative initiative to amend S.C. Code Ann. §§ 48-39-250 et seq., the Beachfront Management Act (BMA), ¹ based on action taken this summer by the agency’s governing Board. The Board provided approval to its staff to begin drafting revisions to the BMA that incorporate recommendations of the Blue Ribbon Committee on Shoreline Management (BRC). The BRC was created by DHEC in 2010 to review the adequacy of the BMA “to ensure the long-term health and sustainability of our coastal resources and the communities that are dependent on them.”² The final report of the BRC was made available in February of 2013 and addressed the challenges that have begun to emerge along the beachfront.³ These challenges include chronic erosion and sea level rise.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0South Carolina boasts 187 miles of Atlantic Ocean shoreline, 114 of which are accessible to the public.⁴ While the state’s coast is characterized by pristine white beaches and rolling sand dunes, the coastline itself is in a constant state of flux due to a common coastal process—beach erosion.⁵ Generally, areas that are erosional over the long-term have experienced both increases in human development and sea level rise, the two leading causes of beach migration.⁶ Tide gauges show that sea level has risen an average of 1.7 mm a year during the 20th century.⁷ Satellite data indicates an even larger increase of 3.17 mm a year since 1993.⁸ Recent studies have suggested sea level rise by the end of the century as being close to a meter or more.⁹ South Carolina is not exempt from the global trend. Sea level in the Charleston area has risen nearly a foot during the last century.¹⁰

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A rise in sea level may have various consequences. First, beaches and marshes adjacent to development may experience increased flooding.¹¹ In addition, sea level rise has the potential to magnify the impacts of storms by raising the water level that storm surges affect.¹² Storm surges already pose a threat to coastal regions, flooding low-lying areas, damaging property values and destroying habitats.¹³ Yet sea level rise has not been a deterrent to growth and development in South Carolina’s coastal counties. From 1990 to 2000, more than one-fourth of the state’s growth (28.1 percent) occurred in the eight coastal counties.¹⁴ The most recent census data indicates South Carolina’s coast now has three of the nation’s fastest growing counties and three of its fastest growing municipalities.¹⁵ Nor has the threat of sea level rise impacted coastal property values. In 2007 the average cost of a home on Sullivan’s Island was $905, 000.¹⁶ Now values have increased as much as 60 percent to $1.5 million.¹⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0These trends and concerns prompted the BRC to offer 16 recommendations. The Board adopted eight of the 16 recommendations, all of which would require either a statutory amendment to the BMA or to regulations. Certain recommendations of the BRC as adopted by the Board will, at best, interfere with investment-backed expectations or cause a temporary or partial loss of use of valuable property and, at worst, lead to a denial of all economically viable use of valuable property. These include a restriction on seaward movement of the baseline and on construction of habitable structures on renourished shorelines. In addition, the Committee recommends removal of local governments from their traditional role of identifying storm-related emergency events and restricts oceanfront golf course construction. These additional recommendations warrant scrutiny from a public policy and economic perspective.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Recommendation: Amend S.C. Code § 48-39-280 to eliminate any future seaward movement of the baseline.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The baseline is a jurisdictional boundary line established by DHEC. The baseline is set on the landward crest of the primary oceanfront sand dune or at the most landward point of erosion at any time during the past 40 years.¹⁸ Since the adoption of the BMA in 1988, property owners are required to disclose the location of the baseline in any deed or purchase contract for oceanfront property. Prospective purchasers who seek information regarding the impact of the baseline on an oceanfront lot learn that the baseline and another jurisdictional line, the setback line, are reviewed and revised every eight to 10 years to reflect both erosional and accretional trends. Consequently, a property owner has a reasonable expectation of seaward movement of the baseline on a stable or accretional beach. Construction seaward of the baseline is restricted and requires a DHEC permit. The baseline position on an oceanfront lot is a significant issue for a property owner.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The BRC’s recommendation was based on the assumption that an oceanfront property owner should not expect to gain any benefit from accreted property.¹⁹ DHEC’s justification for adoption of the recommendation was to limit encroachment into areas considered unstable and hazardous.²⁰ In both instances the underlying basis for the recommendation is flawed. The seaward boundary of most oceanfront lots is mean high water, which is a moving boundary based on shoreline change. When the lot erodes, mean high water migrates onto what was formerly private property and reduces the size of the lot. When the lot accretes, mean high water extends potentially beyond its position at the time the lot was platted. The legislature has already limited an oceanfront landowner’s ability to assert ownership to property accreting beyond the original boundary line. “[N]o property rebuilt or accreted as a result of natural forces … shall exceed the original property line” and “no person … may develop ocean front property accreted … beyond the mean high water mark.”²¹ But an oceanfront property owner should enjoy the benefit of accretion up to the location of mean high water at the time the lot was platted. The BRC ignored these well-settled principles of boundary law in recommending that the baseline be fixed so as to prevent a landowner from enjoying...