For many of you, there are a multitude of beach erosion and jurisdiction issues that are playing out at the same time, and this has led to confusion for some and anger for others. Social media postings, often with false or faulty information, has fueled this flame. Without promoting any point of view, I will attempt to give you information so you can reach your own conclusions.
First: government jurisdiction over private land. The U.S. Constitution takes a dim view of government taking private land without compensation other than for public safety or health reasons that are clearly and narrowly defined. As George Washington said, “Freedom and property rights are inseparable. You cannot have one without the other.” The Fifth Amendment to the U.S. Constitution says in summary: “Without just compensation, government regulations cannot limit the use of private property to such a degree that the landowner is deprived of all reasonable use or value.” The state of South Carolina in Section 48-39-30 of its beach management laws says: “In the implementation of the chapter, no government agency shall adopt a rule or regulation or issue any order that is unduly restrictive so as to constitute a taking of property without the payment of just compensation in violation of the Constitution of this state or of the United States.”
With this as background, the General Assembly has been very clear about its jurisdiction over private land on beaches by defining a beach critical area in Section 48-39-10. There is a baseline (toe of the primary dune) and a setback line (40-year erosion estimate of baseline) that are set every seven to 10 years and approved by the General Assembly. These lines are fixed until reset, and, for the Isle of Palms, were set in 2018 and are due to be reset in 2026. Based on these lines, beach critical areas are defined, setting the limit of state jurisdiction over private property.
Beach critical areas consist of two components – the Beach/Dune system, defined as seaward of the setback line, and Beaches, defined as those lands subject to periodic or routine tidal and wave action so that no nonlittoral vegetation is established. While active beach is a defined term in the overall tideland and wetlands act, that term is never used anywhere in state jurisdictional law defined in section 48-39-10. Active beach recently became a weapon the Office of Ocean and Resource Management uses to claim that if any waterfront property owner lost any land, even from one storm, that land became state jurisdiction. Once it becomes state jurisdiction, you can only use beach compatible sand to repair the property – no replacing shrubs, fences or even dirt. This is clearly illegal and would make state jurisdiction constantly variable and different for every owner and be impossible to track. It will be at the discretion of the state to tell you on an individual basis where their jurisdiction is. Baselines and setback lines will be obsolete. For homeowners, with one storm, your backyard can be annexed by the state and essentially become part of a public beach. I would hope that any waterfront owner would stand up and fight this jurisdictional grab that has never been voted on by the General Assembly.
Adding to this, IOP is the only municipality that has restrictions on property owners protecting their property that are more stringent than those of the state. The IOP ordinance states that homeowners cannot protect their property in any way for 250 feet landward from the high tide line, which is to the back porch of most homes. In addition to being inconsistent with constitutional law, this ordinance exposes every taxpayer in IOP to unlimited liability and puts them at the mercy of unpredictable juries. The first homeowner whose home falls into the ocean will claim the city ordinance prevented him from any protection whatsoever and the city is therefore liable for his losses and could be held negligent for not taking more aggressive action to protect the homeowner after prohibiting him from protecting himself. This unlimited liability is why no other municipality exposes its citizens to this risk.
Finally, in 2018, the state changed its policy from a retreat policy, where no protection was allowed, to a replenish, renourish and “hold the line” policy. Anyone who has watched the ocean rise and beach levels drop as much as 10 feet on the southern side of the island due to insufficient replenishment and excessive scraping will quickly realize that it is impossible to hold the line using only sand. The best compromise is a protective structure that is always covered in sand and landscaped, with sand dunes on the ocean side that support the eco structure we are all in favor of. The structure is only exposed in the event of a catastrophic storm that washes out the dunes and sand. The structure is immediately covered back with sand, having accomplished its goal of property protection. The state and city get out of trying to repair private yards and focus on building a nonexistent dune system and replenishing the public beach. We all have the same goals, but all the rhetoric and false accusations and pitting us against each other gets in the way of coming up with solutions that work for all.
