Developers are facing legal opposition and a race against the tides in the fight to construct homes on the rapidly eroding Captain Sam’s Spit.

In May, Kiawah Development Partners received state approval to go ahead with construction for a residential subdivision known as Cape Charles. As part of their ongoing effort to stop the project, the Coastal Conservation League appealed the Department of Health and Environmental Control’s decision, which would allow for developers to build an access road to the project site and other related infrastructure. Due to the pending case, KDP was unable to move forward with the project, but that all changed earlier this month when the state’s Administrative Law Court partially lifted the automatic stay prohibiting construction. The decision was a big win for the developers who face a shrinking coastline that may sink plans for the proposed subdivision before things even get started.

The judge’s recent decision allows KDP to move ahead with the construction of a 2,380-foot steel sheet pile wall intended to prevent erosion along the neck of the spit. According to court documents, KDP argues that if the wall is not installed immediately, “There is a significant risk that the area for the permitted access roadway to the planned development area will erode way, thus preventing access to the residential lots on Captain Sam’s Spit.”

Court affidavits show that the available width for the access road has narrowed by at least six feet since May and as much as 67 feet since 2006. Without the steel wall, KDP argues that the land necessary to construct the access road could be lost within seven months or possibly within hours if the area experiences a severe storm. For developers, the wall is necessary for protecting their investment, but Coastal Conservation League sees things differently.

“It’s not even a question of how do we debate what type of development we want to see on the spit. This is a ludicrous place to build anything. This should be nothing but pristine wildlife habitat,” says Katie Zimmerman, program director with Coastal Conservation League. “Let the public recreate there as they’re able to, but let this property do what it does naturally, which is erode and accrete pretty regularly. … It is the exact opposite of a place where you would want to build anything.”

Captain Sam’s Spit sits in what is known as a COBRA zone, and due to its location, homes built on the spit are prohibited from receiving federal flood insurance. According to the Federal Emergency Management Agency website, “The Coastal Barrier Resources Act (COBRA) of 1982 and later amendments, removed the federal government from financial involvement associated with building and development in undeveloped portions of designated coastal barriers.”

According to Zimmerman, Coastal Conservation League has been involved in legal action over proposals for Captain Sam’s Spit for around eight years. All along, she says, the group’s goal has been to maintain the natural state of the spit and to protect threatened and endangered wildlife that frequent the area. In the past, the state Supreme Court has sided with the Coastal Conservation League, denying earlier permit applications to allow construction on the spit. Along with the S.C. Environmental Law Project, the league has filed a legal motion requesting that the automatic stay remain in effect and the spit remains untouched.

“The automatic stay is what prevents anything going forward while a permit is being disputed. It’s a really important thing. It’s sort of the whole basis for protecting things. You want to make sure everything is legal and good to go before you allow construction,” says Zimmerman. “Our attorneys requested extraordinary relief from the state Supreme Court to have that stay imposed before they can move forward. Now we’re in waiting mode. We’re waiting to hear what the Supreme Court has decided as far as our request.”

As part of the court’s decision to allow for the construction of the steel wall on Captain Sam’s Spit, KDP has agreed to post the necessary bond to cover the cost of the removal of the wall should the ruling be reversed. The price for removing the wall is estimated at around $380,000, but those opposing the project say the cost is much higher to the integrity of the coastline.

“If there’s a wall on that shore, it’s going to change forever that shoreline,” says Amy Armstrong, executive director and chief counsel for the S.C. Environmental Law Project. “That spit has a history of completely eroding and washing away and redepositing. It’s a really dynamic, moving piece of land, and they’re trying to stop nature from doing what nature does.”

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