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 permitting authority for erosion control devices in critical areas. S.C. Code Regs. 30-1 (B)(1). Critical areas are defined in the CZMA as tidelands and coastal waters. Id.

S.C. Code Regs. 30-15(G) of the CZMA governs groins. It allows groins under special circumstances and gives guidelines for issuing of permits. The rationale for the guidelines is the effect of groins on littoral drift and decreased public access along the beach. Id. Another regulation prohibits the issuance of a permit for any new seawalls or other erosion control devices within the 40-year setback zone. S.C. Code Regs. 30-21 (C)(1)(c); S.C. Code Ann. § 48-39-280(A). The setback zone is the area away from the beach shoreline in which development is prohibited. The area is determined by multiplying the distance of the average annual erosion by 40. § 48-39-280(B). In spite of these protections, groins and other erosion control structures were still built to protect some of South Carolina's shoreline. Two major considerations behind the policy of permitting groins and other erosion control structures are the high number of beachfront residents needing to protect their property as well as public beach access.

Although the CZMA adopted soft erosion control techniques such as retreating from the beach and beach nourishment and rejects construction of erosion control devices, the legislature needed a statute that clarified the existing beachfront management policy for construction of groins and other erosion control structures. S.C. Code Regs. 30-1(C)(6).

Based on the shortcomings of the CZMA, in 1986 the legislature formed a "Blue Ribbon" committee to study and report to the legislature on erosion problems. S.C. Code Regs. 30-1 (C)(3). Based on erosion concerns cited within the report such as "over fifty-seven miles" of beaches critically eroding, the legislature passed the BMA amendments to the CZMA in 1988. S.C. Code §§ 48-39-250-360.

The CZMA did several things to expand regulatory protection of coastal areas. It provided further regulatory guidance to OCRM in permitting the construction of erosion control structures. S.C. Code § 48-39-120. Section 48-39-290 requires special permits when erosion control devices are constructed or reconstructed seaward of the baseline or between the baseline and the setback line. § 48-39-290 (A). The baseline is OCRM's jurisdictional boundary, normally delineated by the crest of the oceanfront dune. § 48-39-280(A)(1). In cases where the shoreline has been altered through erosion control devices, groins or other man-made additions, the baseline is determined by using the "best scientific and historical data" on where the dunes would have been had there been no man-made alterations. Id.

No new construction is allowed seaward of the baseline except in certain circumstances. § 48-39-280(A). The goal of the CZMA is to prevent construction close to the beach and to promote a gradual retreat from the ocean and a reduction in the number of harmful erosion control devices. An exception to construction seaward of the baseline can be found on privately owned Fripp Island in Beaufort County. Section 48-39-290(B)(2)(e) describes Fripp Island but does not name it specifically. A beach monitoring program (now known as the South Carolina State of the Beaches Report) determines the erosion rates on an annual basis.

The Port Royal case

The CZMA appeared to allow construction of groins through § 48-39-290, among other code sections.

However, the process of gaining a permit was not without controversy. Port Royal, supra. Port Royal Plantation is a residential beachside community on Hilton Head Island. Much controversy was generated when Port Royal Plantation applied for permits to construct four new groins and reconstruct 17 existing groins along 8,000 feet of beach. Id.

After Port Royal applied to OCRM and received the groin permit, the South Carolina Coastal Conservation League and the Sierra Club (the intervenors) intervened and disputed OCRM's authority to issue the permits and requested a review of the permitting process by an Administrative Law Judge (ALJ). The ALJ found the issuance of the permits to be valid. OCRM's Coastal Zone Management Appellate Panel affirmed the ALJ by validating the permits. On appeal, the Beaufort County Circuit Court also affirmed the ALJ's order. The intervenors then went to the Court of Appeals which held that OCRM had exceeded its authority. The Supreme Court reversed the Court of Appeals and held that OCRM did have groin permitting authority, particularly in light of the 2002 amendment to the CZMA codified within § 48-39-290(A).

The Port Royal opinion hinged on the rules of statutory construction and interpretation. The intervenors wanted a strict interpretation of the CZMA. This would not have included groins within § 48-39-290(A), which stated "no new construction or reconstruction is allowed seaward of the baseline." Port Royal wanted a broad interpretation of the CZMA, relying in part on S.C. Code Regs. 30-13(N). This would have allowed groin construction after OCRM approved the permit. In the circuit court, ALJ and OCRM decisions, the CZMA was loosely interpreted as allowing groin construction. The Court of Appeals, however, agreed with the intervenors' view and adopted a strict interpretation.

Port Royal argued that S.C. Code Regs. 30-13(N)(1)(d)(i) was controlling law, which allowed groins when nourishment efforts were ongoing. The Court of Appeals denied that argument by determining that S.C. Code Regs. 30-13 (N) " . . . must fall when it alters or adds to . . . " § 48-39-290 (A). Port Royal at 345 S.C. at 539, 548 S.E.2d at 894. "[A]lthough a regulation has the force of law, it may not alter or add to a statute." Id.

Here, S.C. Code Regs. 30-13 allowed groins while the former § 48-39-290(A) did not expressly authorize groins. The Court of Appeals interpreted § 48-39-290(A) as governing authority not allowing groin construction. The Court of Appeals has said " . . . this Court should not completely disregard the text of an unambiguous statute based on an alleged conflict with an earlier statute. Hodges v. Rainey, 341 S.C. 79, 88, 533 S.E.2d 578, 582 (Ct. App. 2000).

OCRM, Port Royal Plantation and the Town of Hilton Head (therespondents) argued that S.C. Code § 48-39-290 could not be read in isolation and must be read in conjunction with the entire CZMA. They asserted that if the legislature had wanted to ban groins in the CZMA, the word "groin" could have been added to §§ 48-39-270 and 48-39-290(B)(2). In addition, if the legislature had intended to prohibit groins, the legislature would not have allowed 152 groins to be built along the coast in the first place. S.C. Code Regs. 30-1(D)(24).

The respondents argued that beach nourishment and groin construction went hand in hand. S.C. Code Ann. § 48-40-20. The CZMA is cited as encouraging the use of beach nourishment as a soft erosion control technique. Port Royal attempted to combine beach nourishment with groins to slow erosion. Without groins the likelihood of erosion increased.

The respondents argued that OCRM should be charged with the administrative decisions of granting or denying permit applications and interpreting the CZMA. To that end, Port Royal asserted that OCRM should be the sole authority in permitting pursuant to and interpretation of the CZMA.

The circuit court determined that OCRM arguably had authority to issue groin permits via § 48-39-120(F). That section states that OCRM may issue permits not otherwise provided by state law for erosion in or upon the tidelands. Both the circuit court and the ALJ relied on this section in upholding the permit. The S.C. Court of Appeals determined that § 48-39-120(F) conflicted with § 48-39-290(A), which stated "no new construction or reconstruction is allowed seaward of the baseline except . . ." Groins was not, prior to 2002, one of the enumerated exceptions to construction seaward of baseline. Therefore, the decision to uphold the groin permit was reversed by the S.C. Court of Appeals.

The amicus brief, submitted on behalf of DeBordieu Colony Community Association, Inc., repeatedly discussed the subject of groins being essential elements of a successful beach nourishment program. The brief distinguished groins from erosion control structures such as seawalls, bulkheads and revetments mentioned in § 48-39-270. The brief cited the following three differences: (1) groins are located on the active beach; (2) groins run perpendicular to the shoreline and extend into the sea while seawalls, bulkheads and revetments run horizontal to the shoreline and do not extend into the sea; and (3) groins are integral to beach nourishment projects by causing accretion while other erosion control structures merely stop the erosion of sand.

The amicus brief reasoned, together with the respondents, that because OCRM administered the CZMA, that agency should be the one to interpret the legislature's intent as to issuing a permit. Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council was cited for the proposition that the construction of a statute by the administering agency will be accorded the most respectful consideration and will not be overruled absent compelling reasons. 306 S.C. 488, 413 S.E.2d 13 (1991). In this regard, OCRM interpreted the CZMA to allow for the construction of groins by special permits.

The intervenors argued that OCRM's permitting process violated S.C. Code § 48-39-290(A) (none of which named groins in particular) by prohibiting the construction of groins seaward of the baseline, with certain exceptions. This was true until the 2002 BMA amendments to the CZMA legalized groin construction in certain circumstances.

The intervenors' strongest argument, which ended up prevailing in the Court of Appeals, was that while S.C. Code § 48-39-290 did not specifically ban groin construction, thestatute is a blanket prohibition in that " . . . no construction or reconstruction is allowed seaward of the baseline."

The Court of Appeals determined that a general statute cannot supercede a more specific statute. By strictly interpreting § 48-39-290, the Court of Appeals reversed the ruling by OCRM, ALJ and the circuit court in interpreting the CZMA as a whole rather than as independent statutory sections.

The Court of Appeals agreed with the intervenors that groin construction permits violated the CZMA. Port Royal, 345 S.C. at 532, 548 S.E.2d at 890. In 2001, the Court of Appeals denied the groin construction permit because it violated the Beachfront Management Act. Port Royal, 345 S.C. at 542, 548 S.E.2d at 896.

The Court of Appeals interpreted § 48-39-290(A) as not allowing the building of erosion control structures on the active beach. Id. The active beach is the " . . . area seaward of the escarpment or the first line ofstable natural vegetation." S.C. Code Regs. 30-1(D)(23). Because groins fit this definition, the statute prohibited their construction.

The Court of Appeals addressed the validity of § 48-39-120(F) in its opinion. Port Royal, 345 S.C. at 538, 548 S.E.2d at 893. This section authorized OCRM to issue permits for structures below the mean high tide line if the structure benefits the public health, safety and welfare and protects public and private property.

The Court of Appeals construed the statute as not defining what a structure was and even if it did include groins, § 48-39-120(F) would then contravene § 48-39-290(A). Therefore, because of the conflict, the more recent § 48-39-290(A) governed. The court noted that the legislature could have amended § 48-39-120(F) to trump later laws by inserting language such as " . . . notwithstanding any other provision of state law . . . " into the text.

The Court of Appeals determined that the permit violated provisionsof the CZMA. The court also found that § 48-39-290(A) was applicable and it stated that " . . . no new construction or reconstruction is allowed seaward of the baseline." This resulted in a denial of the groin construction permit. The court concluded that the legislature, in enacting the CZMA, excluded the word groin for a reason. In addition, the opinion recited that the CZMA and the state's coastal erosion policy preferred soft erosion control technology rather than "hard" erosion control devices. Soft erosion control technology consists of beach nourishment and retreating from the beach while hard erosion control structures are rock revetments, sea walls and groins.

The Court of Appeals agreed with the intervenors that § 48-39-290(A) precluded OCRM from issuing any permits for the construction or refurbishment of groins because groins do not fit within the statutory exceptions.

In interpreting § 48-39-270(1), the court applied the statutory construction principle that to express one thing excludes the thing not mentioned. This limited the statutory definition of erosion control structures or devices. Port Royal at 891. Only seawalls, bulkheads and revetments are allowed under § 48-39-270(1). Another justification for not including groins as erosion control structures was definitional: groins are constructed perpendicular to the beach, whereas seawalls, bulkheads and revetments are constructed parallel to the beach.

Beachfront Management Act

revisions

In 2002, the legislature amended the CZMA to specifically allow the construction of groins and in the process rendered the Court of Appeals case moot. Act 198, S.C. Code § 48-39-290(A)(Supp. 2002) became effective on March 27, 2002. As a result of the new legislation, groin construction is statutorilyallowed, whereas after the decision in Port Royal, it was not. Port Royal at 887; § 48-39-290 (A). However, groin permitting is now a more difficult process with more hoops through which to jump. The amendment to § 48-39-290 gives authority to OCRM to permit groin construction and sets out several requirements to be met in order for the groin to be permitted.

For instance, groin alteration can only be done in furtherance of ongoing beach nourishment. The applicant must implement a monitoring program before and after the construction and provide funds to cover costs of removing the groin or beach nourishment. Id. The monitoring program consists of establishing new monuments, determining the annual volume and transport of sand and annual aerial photographs. Id. If the groins, as indicated through the required monitoring program, result in increased erosion, OCRM must require one of the following three measures: (1) reconfigure the groin so the erosion rate is decreased to the pre-construction rate; (2) remove the groin; or (3) restore the adversely affected beach through beach nourishment. Id.

The latest amendments to the CZMA attempt to sidestep a dispute over statutory construction. The legislation still has language that can lead to multiple interpretations. There currently appears to be no limit to what can be done to existing groins. In addition, the costs associated with nourishing beaches, particularly down current of groins, will only increase.

After these amendments became effective, the Supreme Court granted certiorari in Port Royal. The intervenors argued that the issue was moot and should not be decided by the Supreme Court. The respondents argued that the Court of Appeals case should have been reversed, thus allowing the Port Royal groin permit to be approved by OCRM. The Supreme Court held that theCZMA " . . . did not prohibit OCRM from issuing permits to landowner allowing repair of existing groins, as well as construction of new groins, in active beach area." South Carolina Coastal Conservation League v. South Carolina Dept. of Health and Environmental Control, 354 S.C. 585, 582 S.E.2d 410 ___ (2003).

Conclusion

Recently the S.C. Supreme Court ruled that the 2002 Act amended § 48-39-290(A) to authorize groin construction permitting. The Court also noted that the CZMA explicitly authorized groin construction and maintenance. S.C. Code Ann. § 48-40-20(3).

Not much has been debated on the negative effects of groins until the last few decades. Evidently, since South Carolina legislators did not include the term "groin" within the former § 48-39-290(A), they either purposely did not want groins included with seawalls, bulkheads and revetments, or they did not believe groins warranted such legislation. This has since changed with the 2002 amendment to the BMA.

Much of the groin debate stems from the increased scientific knowledge of the impact of groins on the down current shoreline, an increase in property values and development along the coast within the past several decades and a coordination among environmental organizations to oppose groin permitting by OCRM. The current § 48-39-290(A) reflects the increased knowledge of groins. Whether the statute, as written, will actually protect the down current landowner remains to be seen.

Max C. Sparwasser is an attorney with McWhirter, Bellinger & Associates, P.A. in Lexington.

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