080317 Environment: Judge chides county inaction in denial of groin permit
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The public beach access still had a remnant of a dune following Hurricane Matthew last fall.

Environment: Judge chides county inaction in denial of groin permit

By Charles Swenson
Coastal Observer

An Administrative Law Court judge this week denied a permit for Georgetown County to build a rock and concrete groin in front of the public parking lot on the south end of Pawleys Island. The ruling came 1,363 days after a hearing on the permit and nearly five years after the permit was challenged by conservation groups.

In all that time, the court has not heard from Georgetown County, Judge Phillip Lenski noted in his six-page decision, which did not address the time it took to rule. “As of the date of this Order of Dismissal, Georgetown has failed to contact the court, file any documents ordered by the court, respond to any pleadings by the petitioners or to appear at any hearings,” he wrote.

As a result, Lenski ruled that the county has abandoned the permit so he dismissed the case and denied the permit. An effort by the town of Pawleys Island to intervene in the appeal to defend the permit was now moot, the judge said.

The county sought to build a 205-foot groin in front of the parking lot to prevent erosion from damaging the largest free public beach access in the county. The Coastal Conservation League and the local chapters of the League of Women Voters and Sierra Club appealed a permit for the project issued in September 2012 by the state Department of Health and Environmental Control.

The conservation groups, represented by the S.C. Environmental Law Project, argued that the permit didn’t meet the state law because the erosion rate on the island didn’t pose a threat to the public facility. At a motion hearing in November 2013, attorney Michael Corley also argued that since the county didn’t respond to the pleadings, the permit should be denied. An attorney for DHEC asked the court to allow the appeal to go to trial, but under questioning from the judge, he admitted he wasn’t representing the county.

While Lenski said in this week’s ruling that the procedural argument was “a drastic remedy, it is impossible not to conclude that Georgetown has both defaulted in this action and failed to comply with the rules of this court.”

“While this court has made every effort to afford Georgetown the opportunity to represent itself and its interest in this case, it has elected, for whatever reason, not to do so,” Lenski wrote. He noted that the county attorney, Wesley Bryant, submitted an affidavit to DHEC saying that it was not abandoning the permit and merely lacked the money to defend it.

“While the court sympathizes with the tight budgets under which all government subdivisions and agencies operate, it also recognizes that legal challenges to permits such as the one in issue are part of the process, and the willful failure to respond to those challenges and put forth a defense is tantamount to abandonment of the permit,” Lenski wrote.

He declined to rule on a motion by the opponents for summary judgement, saying the case hadn’t gone far enough. Instead, Lenski said that by dismissing Georgetown County there was no longer a case before the court. “The ruling of this court in no way finds fault with [DHEC’s] actions or determinations,” he added. “Now that there is no longer a party seeking a permit, there is no issue before the court. Any further expenditure of resources by this court or any remaining party to this matter would be without purpose.”

Amy Armstrong, head of the S.C. Environmental Law Project, called it a “long-awaited, but much-welcomed decision.” She pointed to an Army Corps of Engineers report from 2002 that found that while groins trap sand on one side, they exacerbate erosion on the other, or downdrift, side. “We are pleased that the court denied the permit,” she said.

The town of Pawleys Island wanted to protect the parking lot because the public access is a factor in obtaining state and federal funds for beach nourishment. While the permit has been under appeal, the town has endured two hurricanes and moved forward with plans for a beach nourishment project that starts just north of the parking area.

The town has also pushed for a ruling in the case. “I will make my decision very quickly,” Lenksi said at the end of the November 2013 hearing. The parties were told last November he planned to issue a ruling before Thanksgiving. In March, they were told it would be issued within a week.

Last month, Town Council asked Town Attorney David DuRant to go to the chief judge of the Administrative Law Court to press for a ruling.

Mayor Bill Otis said it was too soon to say what if anything the town might do. Of the ruling, he said, “it doesn’t sound like there’s anything in there that couldn’t have been said three years ago.”

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