ORDERS:
ORDER
On January 22, 2004, a Final Order and Decision was issued in this case which granted
Petitioner a Construction in Navigable Waters Permit (Permit) for the construction of seven (7)
bulkheads at the Plum Branch Yacht Club on Lake Thurmond, South Carolina. The Permit was
issued by the South Carolina Department of Health and Environmental Control (Department) on
January 6, 2005.
On March 18, 2005, Petitioner filed a Rule to Show Cause with the Court
regarding the term of the permit issued by the Department. Petitioner contends that the Permit
should be issued for a term of ten (10) years rather than for the term of three (3) years for which
it was issued. Pursuant to the Court’s Order issued April 8, 2005, the parties submitted briefs on
the issue of the term of the Permit. Petitioner submitted its brief on April 18, 2005. The
Department filed its response on May 2, 2005.
The Permit, as issued by the Department on January 6, 2005, provides that construction
of the bulkheads must be completed by January 6, 2008. Petitioner asserts that the Department
erred in issuing the Permit for a period of three (3) years. Rather, Petitioner asserts that the
permit should be issued for a period of ten (10) years pursuant to 23 S.C. Code Ann. Regs. 19-450.4(A)(1)(Supp. 2002), which provides in part: “Permits for activities which require
continuous operation, such as marinas, will be issued for a term of ten (10) years or for such
longer period as the Department may grant.” However, the Department argues that the Permit is
correctly issued for a term of three (3) years pursuant to 23 S.C. Code Ann. Regs. 19-450.4(A)(4)(Supp. 2002).
Regulation 19-450.4(A)(4) provides:
The construction authorized by this permit must be completed within three years
of the date of issuance or such other time as the Department may set for good
cause shown. Extensions of time may be granted provided that the requests are
submitted to the Department in writing prior to the expiration of the original time
period, state whether there has been any change in the circumstances since the
permit was approved and the reason for the extension of time.
The Department asserts that it did not issue the Permit for a period of ten (10) years
because the Permit is for the construction of bulkheads, not a marina. The Department further
asserts that bulkheads are not “activities which require continuous operation, such as marinas.” I
conclude that the Department properly issued the Permit for a term of three (3) years pursuant to
Regulation 19-450.4(A)(4). Although Petitioner’s facility is a marina, the Permit was issued for
the construction of bulkheads and not a marina. Therefore, the term for which the permit was
issued is proper.
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion for Rule to Show Cause is denied.
AND IT IS SO ORDERED.
______________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
June 1, 2005
Columbia, South Carolina |