SC Lawyer, Nov. 2004, #8. Groin law developments in South Carolina.

• Author: By Max C. Sparwasser

South Carolina Lawyer

2004.

SC Lawyer, Nov. 2004, #8.

Groin law developments in South Carolina

South Carolina LawyerNovember 2004Groin law developments in South CarolinaBy Max C. SparwasserGroins are man-made structures designed to protect against beach erosion. Portions of South Carolina's coast face the constant threat of erosion ranging from the gradual rise and fall of the tide to the often severe erosion caused by tropical storms and hurricanes. Littoral drift, or longshore current, is the movement of sand along a shoreline caused by ocean currents. Waves breaking at an angle to the beach are a visible manifestation of littoral drift. Littoral drift can be interrupted by groins built perpendicular to the beach. However, the dispute over groins occurs because they often cause the up current shoreline to accrete and the down current shoreline to erode in excess of that normally caused by littoral drift.

The regulation of groins in South Carolina has been in flux over the last few years. The S.C. Court of Appeals case of South Carolina Coastal Conservation League v. South Carolina Department of Health and Environmental Control, 345 S.C. 525, 548 S.E.2d 887 (2001) (Port Royal) ruled that the Beachfront Management Act amendments to the South Carolina Coastal Zone Management Act (now collectively just the CZMA) prohibited the construction of groins. The South Carolina legislature then stepped in and trumped the Court of Appeals case by amending the CZMA to allow groins in certain circumstances. Subsequently, the S.C. Supreme Court reversed the Court of Appeals and held that the CZMA does not prohibit the South Carolina Department of Health and Environmental Control's Office of Ocean and Coastal Resource Management (OCRM) from issuing permits for groin construction.

As of 1991, South Carolina had at least 152 groins. S.C. Code Regs. 30-1(D)(24). The largest and oldest "groins" not listed on the South Carolina statutory list of groins are the Charleston Harbor jetties. Id. The Charleston Harbor jetties are unlike typical groins because they were constructed as shallow curves rather than perpendicular to the beach. These massive rock structures were built in the 1890s by the U.S. Army Corps of Engineers in order to maintain channel depth for ships coming into the harbor. They consist of two long groins arching outward on either side of the channel extending from the harbor out beyond the beach. The jetties serve a two-fold purpose: the first intended, the second accidental. First, by artificially constricting the outflow area at the mouth of the harbor, the same volume of water moves at a higher velocity thereby keeping waterborne sediment from settling in the channel. Second, in the area where they extend through the beach to the ocean, they have the same effect on littoral drift sand as the more traditional groin.

Folly Beach has a long history of rapid erosion exacerbated by the Charleston Harbor jetties. South Carolina Maps and Aerial Photographic Systems and Clemson University, within the College of Engineering and Science, note that Folly Beach has eroded at a rate of almost five feet per year and haseroded 800 feet since records were first kept. To combat this erosion problem, 47 groins have been constructed on Folly Beach since 1949. Id. According to the Duke University Program for the Study of Developed Shorelines database, in conjunction with groin construction, taxpayers have spent an estimated $8,134,000 on beach nourishment for Folly Beach since the 1980s. The National Oceanic and Atmospheric Association (NOAA) Coastal Services Center estimated that the Charleston Harbor jetties have resulted in more than half of the erosion on Folly Beach. Consequently, the South Carolina legislature exempted Folly Beach from part of the CZMA. S.C. Code §§ 48-39-290(E) - 48-39-300.

Regulatory history

Before the 1970's, erosion control structures in South Carolina were regulated, if at all, at the county level. The federal Coastal Zone Management Act (CZMA) of 1972 was enacted as a voluntary law used to encourage coastal states to protect coastal resources. 16 U.S.C. § 1451(i). The federal CZMA uses federal funds as an incentive for states todevelop and implement Coastal Zone Management Plans (CZMPs) for coastal resource conservation. 16 U.S.C. § 1451(j). For federal fund approval, a state CZMP must, among other things, establish a planning process to assess the effects of shoreline erosion and study ways to control or decrease shoreline erosion as well as restore areas adversely affected by such. 16 U.S.C. § 1455 (d)(2)(I).

In efforts to garner federal funding, the South Carolina legislature adopted the South Carolina CZMA in 1977 to implement its state CZMP. S.C. Code Regs. 30-1. The CZMA created the South Carolina Coastal Council (now OCRM) which was responsible for the economic welfare of citizens and the protection of coastal resources. The Coastal Council had...