State must step up to protect marsh islands

The state Supreme Court this week dealt a blow to a long-standing legal standard aimed at protecting the state's thousands of marsh islands and the sensitive ecosystems on and around them.

In a ruling on the title to Little Jack Rowe Island, a 15.5 acre island in Beaufort County, the court overturned a previous decision that the state was the presumptive owner of these types of islands. The title question was raised when the owner applied to the state for a dock permit.

In the 1990s, the court held that marsh islands, like the tidal marsh surrounding them, belonged to the state. Subsequently, someone had to show a king's grant for the property or a title transfer from the state to prove ownership. That principle was reiterated in a state attorney general's opinion in 2003.

But the court said in its ruling Monday that the state's claim to an island's high ground was at odds with the doctrine that the state held in public trust all land below the mean high water mark. The state cannot extend its claim beyond the surrounding marshlands.

The ruling states, "Of the 3,467 coastal islands in South Carolina, the (Department of Natural Resources) estimates that 72 percent of these are privately owned. We do not see a practical and uniform way to narrow the scope of (the previous decision) without clouding the title of potentially thousands of marsh islands."

Beaufort County has more than 1,400 of these islands.

The challenge lies in what comes next. Will state lawmakers and regulators do enough to protect these critical areas without laying claim to the property?

The court said it recognized the importance of these islands as "vestiges of our state's most fragile ecosystems, and we recognize the state's interest in protecting and preserving these lands for the enjoyment of all citizens. (The state Department of Health and Environmental Control) and other agencies of this state have the regulatory authority to prevent or limit the development of our state's pristine coastal areas, and our opinion today leaves them at liberty to continue those efforts. Current and potential marsh island owners should be keenly aware of this regulatory risk. However, we do not believe the protection and preservation of these islands should be effected through the unprecedented expansion of the public trust doctrine."

The court notes that most of these islands are very small, 53.7 percent are less than one acre and 81.5 percent are less than five acres. And it notes that DHEC has been very circumspect in invoking the claim. The agency has required a sovereign's grant for undeveloped islands only.

In October, we saw legal fallout from this doctrine when a Hilton Head Island man sued the attorney who represented him in the purchase of a marsh island in 2004. The state claimed title to the island, and he was unable to get a permit to build a footbridge to it. The title issue also come up in a request to build an 85-foot bridge to a half-acre island off Fripp Island.

Where and when to grant access to marsh islands has been an issue for many years. After the Supreme Court ruled in 2005 that the law was too vague to deny a bridge permit to an island near Mount Pleasant, tighter state regulations were enacted in May 2006. They prohibit building a bridge to an island smaller than 2 acres.

Unfortunately, development standards that included lighting, landscaping and stormwater runoff fell by the wayside. That was despite a strong push from lawmakers in Beaufort and Charleston counties, home to 80 percent of the undeveloped marsh islands.

Even without the presumption of ownership, the state can do much to protect these islands and the surrounding marshlands. We just have to have the will to do it.