SC Administrative Law Court Decisions

This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) to issue a permit to Respondent John Leonardi, which allowed the construction of a private, recreational dock reaching Milton Creek, Edisto Island, South Carolina. The Petitioners timely requested a contested case hearing and the matter was transferred to the Administrative Law Judge Division (Division). A hearing was held before me on July 17, 2001, at the offices of the Division in Columbia, South Carolina.

Construction in the coastal zone of South Carolina is governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. Section 48-39-10 et seq. (1987 & Supp. 2000), and the regulations promulgated thereunder, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2000). Respondent OCRM is charged with administering and enforcing these provisions. The rules governing the permitting of docks and piers are found at 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2000). The Petitioners object to the permitted structure on several grounds, including view impacts and navigational concerns. Most significantly, the Petitioners allege that the permitted structure would cross a navigable creek, in violation of 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2000). That regulation provides that "[d]ocks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water."

OCRM and Respondent Leonardi assert that the tributary over which this dock would cross is not a navigable creek because the point at which the dock would cross is not a defined channel as evidenced by a significant change in grade.

Having observed the witnesses and exhibits presented at the hearing and taking into account the burdens of proof imposed upon the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Respondent John Leonardi is the owner of Lot 9, Tract C, Middleton Retreat on Edisto Island, Charleston County, South Carolina. His property is located in a critical area and, therefore, he must apply for and receive a permit from OCRM to construct a dock. On December 20, 2000, OCRM issued permit number OCRM-00-323-M to Respondent Leonardi. The permit allows for the construction of a private, recreational dock, which consists of a 4' x 700' walkway, leading to a 14' x 16' fixed pierhead and a 10' x 20' floating dock. The dock will access Milton Creek.

2. The Petitioners all own property on Edisto Island near Leonardi's lot. The lots of Petitioners Joseph and Scoville adjoin Leonardi's property. Petitioners Scoville and Liles object to the permitted structure primarily on the basis that it will cross a navigable creek in violation of the regulations and restrict their use of the tributary.

3. Within Leonardi's extended property lines is a small waterbody that cuts through the marsh. The tributary is approximately four feet wide. It connects to Milton Creek at one end, and connects to another unnamed tributary at its other point of termination. Each end of the tributary is highly vegetated with marsh grass which generally indicates a shallow elevation. The elevations of the tributary, from its base to the level of the surrounding marsh, have not been measured by a professional surveyor. The photographs, however, show a shallow channel that spreads into a shallow drainage area. At low tide the area is predominantly drained of water. The area where the dock would most likely cross the tributary is a mudflat area. ⁽¹⁾

4. Three members of the OCRM staff traveled to the tributary in a small motorboat at ¾ high tide. However, due to the heavy vegetation at both ends of the tributary, they did not attempt to navigate the water body. However, based on their experience and observations of the area in question, all three staff members concluded that the tributary was not navigable.

The Petitioners, on the other hand, testified that they have navigated this tributary: Mr. Liles in a small motorboat and Dr. Scoville in a small motorboat and a kayak. Nevertheless, the Petitioner's navigation of the tributary occurred very close to high tide or at high tide. Dr. Scoville's navigation of the tributary in his kayak occurred at various times between mid-tide and high tide. ⁽²⁾

5. In addition to their navigational objections, the Petitioners also object to the dock based on its impact to their view and their ability to observe the wildlife that inhabits the area. However, there was no evidence submitted to show that their view would be completely obstructed, nor that their ability to observe the wildlife habitat would be eliminated.

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000), and §§ 1-23-500 et seq. (1986 & Supp. 2000). Pursuant to S.C. Code Ann. Section 48-39-150(D) (1987 & Supp. 2000), the Division is authorized to hear contested cases arising under Chapter 39 of the South Carolina Code.

2. The standard of proof in a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dept. of Health & Env. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). The Petitioners, therefore, have the burden of proof to show, by a preponderance of the evidence, that the proposed structure would violate the Coastal Zone Management Act and the regulations promulgated thereunder.

3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10 et seq. (1987 & Supp. 2000), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2000). Those regulations govern the management, development, and protection of the critical areas and coastal zone of the state. Furthermore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. See 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 2000); S.C. Code Ann. § 48-39-130 (1987 & Supp. 2000).

Leonardi's property is located in a critical area as defined in Section 48-39-10 and Regulation 30-1(C)(4) and (12). Therefore, before he can construct from his property, he must apply for and receive a permit from OCRM.

4. The Petitioners raise several objections, primary of which is that the dock would cross a navigable creek in violation of 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2000).

Regulation 30-12(A)(2)(n) provides, in part:

Docks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water . . . .

(emphasis added). In other words, if a creek is navigable and has a defined channel, OCRM cannot permit a structure to cross it. ⁽³⁾

In determining whether a tributary is navigable, "the true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use." Hughes v. Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (1990), citing State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 449, 346 S.E.2d 716, 719 (1986). The term "valuable floatage" includes not only commercial vessels but also use of a waterway by the general public for boating, hunting, and fishing. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Furthermore, "[t]he test of navigability is not whether a waterway is accessible at all times. Rather, the test is whether it is accessible 'at the ordinary stage of the water.'" Hughes v. Nelson 303 S.C. 102, 106, 399 S.E.2d 24, 26 (1990) quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E. 884, 888 (1909).

Moreover, the evidence does not support the Petitioners' contention that this creek is navigable. The only times that the Petitioners navigated this tributary in anything other than a kayak or canoe was at high tide or close to high tide. In order for a tributary to be navigable, it must be navigable at the ordinary stage of the water. In other words, the fact that an area within the tributary can be navigated by a small motorboat at high tide is not significant. Because of the amount of water that ebbs and flows in the South Carolina Coastal Zone during regular high and low tides, most tidal areas are navigable at high tide. In fact, it is possible for a kayak to maneuver in the marsh, where there is not even a channel, at high tide.

Therefore, the Petitioners must establish that the tributary was accessible "at the ordinary stage of the water." Furthermore, a small waterway cannot be a navigable waterway if it cannot be entered by valuable floatage "at the ordinary stage of the water" from the navigable waterways connecting to the tributary. Accordingly, in this case, the tributary must not only be accessible to water craft within the confines of its waterway but accessible to craft that wish to enter the waterway. However, the Petitioners not only failed to establish that the tributary itself had the capacity for valuable floatage "at the ordinary stage of the water," but also failed to establish that valuable floatage could enter the tributary "at the ordinary stage of the water."

Additionally, in the cases above, the Courts developed a policy on the significance of preserving navigation. However, the fact scenarios that gave rise to these decisions are distinguishable from this matter, in that in those cases the private citizens sought to completely obstruct, or eliminate, public trust lands or public waterways. The type of construction contemplated in this case is not comparable to the construction of gates, or a dam across public waterways and public trust lands. In other words, the Petitioners failed to establish that Respondent Leonardi's dock will be placed in a manner that does not allow the current watercraft using the area to pass under the walkway.

Furthermore, the presence of a navigable waterway is not enough to satisfy the provisions of Regulation 30-12(A)(2)(n). The regulation prohibits the crossing of a waterway with a defined channel. A defined channel is one "evidenced by a significant change in grade with the surrounding marsh." In this case, the evidence does not establish that the dock will cross a navigable creek in violation of Regulation 30-12(A)(2)(n). Because the Petitioners carry the burden of proof, they are under the obligation to prove that the proposed structure would violate Regulation 30-12(A)(2)(n), in that it would cross a navigable creek, as evidenced by a defined channel with a significant change in grade. In other words, the evidence simply did not show that there is a defined channel where the dock would cross, nor did the evidence show a significant change in grade.

The only evidence that was submitted by the Petitioners was their personal observations and measurements of the depths of the water. There was no expert testimony about the changes in elevation in the water body. When weighed against the OCRM staff's observations and experience in applying Regulation 30-12(A)(2)(n), I conclude that their evidence is not persuasive. Although the location of the dock has not been exactly staked out in the field, the testimony in the record from OCRM and Leonardi reflects that the dock will cross this tributary at a point where the channel spreads into a shallow mudflat. A mudflat has been defined as "a muddy, low-lying strip of ground by the shore, or an island, usually submerged more or less completely by the rise of the tide." American Geological Institute, Dictionary of Geological terms, Rev. Ed. 1976. The OCRM staff concluded that this area of the marsh does not have a defined channel, nor does it have a significant change in grade. Therefore, based on the record before me, I conclude that the Petitioners have not carried their burden of proof with regard to whether the permit violates Regulation 30-12(A)(2)(n).

5. The Petitioners contend that permitted structures must not restrict the reasonable public use of state lands and waters and that this structure would restrict their access to this tributary. This requirement is found in 23A S.C. Code Ann. Regs. 30-12(A)(2)(a), which provides:

Docks and piers shall normally be limited to one structure per parcel and shall not impede navigation or restrict reasonable public use of state lands and waters.

I conclude that the dock, in this instance, will not restrict the tributary's reasonable public use. The main uses of this tributary is navigation in a kayak or canoe which will not be prevented by the construction of the Respondent's dock.

6. The Petitioners also raise the argument that their view and enjoyment of the marsh will be diminished as a result of this structure, in violation of 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 2000). OCRM must consider the extent to which the adjacent property owners' value and enjoyment of their property is affected by a proposed structure. However, OCRM must balance the interests of adjacent property owners against the interests of the applicant. A neighboring property owner's objections to view is not a reason in and of itself to deny an application. A private landowner does not acquire an easement providing an unobstructed view over adjoining property. Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983). Therefore, I conclude that the impact to the Petitioners' view and enjoyment is not a sufficient reason to deny the permit.

7. The Petitioners allege that the proposed dock will cross the extended property lines of Lot 20, which is owned by another property owner on the opposite side of Leonardi's lot. This crossing of their lines, they argue, would violate the regulatory prohibition against that in normal circumstances. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(p) (Supp. 2000). However, I conclude that since the owners of Lot 20 are not a party to this appeal, the Petitioners do not have standing to raise this issue and therefore this issue is not before me.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, to issue this permit to Respondent John B. Leonardi to Milton Creek be upheld.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

February 26, 2002

Columbia, SC

1. OCRM does not consider mudflat areas to be navigable under the regulations.

2. A canoe or kayak would be able to navigate under the Respondent's dock since docks are required to be constructed at least three feet above mean high water. Therefore, Dr. Scoville's kayak use will not be hindered by the issuance of this permit.

3. Presumably, under the regulations, if a creek is navigable but does not have a defined channel, it can be crossed. Nevertheless, the dock could not impede navigation under Article XIV, Section 4 of the South Carolina Constitution or S.C. Code Ann. § 49-1-10 (1987 & Supp. 2000). Furthermore, 23A S.C. Code Ann. Regs. 30-12A(2)(a) and (b) (Supp. 2000) provide that a dock "shall not impede navigation" or "be constructed in a manner that . . . restrict[s] water flow."