SC Administrative Law Court Decisions

STATEMENT OF THE CASE

In the above-captioned matter, Petitioners Robert Setzer and John Gilgen filed an application with the United States Army Corps of Engineers and the South Carolina Department of Health and Environmental Control, Office of Environmental Quality Control, for a permit to construct a private, joint-use dock on the Ashepoo River in Colleton County, South Carolina. As provided under federal and state law, Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM or Department) reviewed the application for consistency with the South Carolina Coastal Zone Management Program (CZMP). On January 16, 2002, OCRM determined that the proposed dock was inconsistent with the CZMP and denied a coastal zone consistency certification to Petitioners' application

On April 2, 2002, Petitioners requested a contested case before this tribunal to challenge the Department's decision to refuse certification of their application. ⁽¹⁾ After timely notice to the parties, a hearing of this case was held at the Administrative Law Judge Division in Columbia, South Carolina on August 27, 2002. Based upon the evidence presented at the hearing and upon the applicable law, I find that OCRM's decision to deny a coastal zone consistency certification to Petitioners' application must be sustained.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioners Robert Setzer and John Gilgen own and reside on adjoining properties in Green Pond, South Carolina, along the Ashepoo River in Colleton County, South Carolina.

2. Petitioners submitted an application to the United States Army Corps of Engineers, Charleston District, and the South Carolina Department of Health and Environmental Control (DHEC), Office of Environmental Quality Control (EQC), for a permit to construct a pier and floating dock in the Ashepoo River with an attached walkway connecting the dock to their properties. Notice of this application was published on August 24, 2001.

3. The proposed project consists of a 4' x 180' walkway leading from the common property line of Mr. Setzer's and Mr. Gilgen's properties to a 10' x 20' fixed pierhead in the Ashepoo River. In addition, a 10' x 30' floating dock will be attached to the pierhead by a ramp. Petitioners seek to construct this dock for their joint, private, recreational use.

4. The proposed site of the dock lies within the "coastal zone" of this State, but is not located in a "critical area." ⁽²⁾

5. The walkway of the dock would traverse a canal originally excavated by Mr. Setzer in 1977 under a permit issued by the South Carolina Budget and Control Board. This canal connects to a larger canal and then to the Ashepoo River. Mr. Setzer currently has an existing dock that provides him with access to the canal. However, since its original excavation, the canal has accumulated silt such that it has become very shallow, and at certain times, nearly dry. Accordingly, nearby residents use the larger, adjoining canal to access the Ashepoo River, and rarely enter the canal bordering on Petitioners' properties. Nevertheless, the canal is a navigable waterway.

6. On January 16, 2002, OCRM found Petitioners' proposed project to be inconsistent with several provisions of the Coastal Zone Management Program (CZMP) and, on that basis, refused to certify Petitioners' permit application. This denial was largely based upon OCRM's concerns regarding the bridging of the canal behind Petitioners' properties. See Resp't Ex. #3, at 2 ("The proposed project is inconsistent due to the fact that it will bridge a navigable canal and interfere with navigation and public use of this canal. The applicant also has an existing dock that allows access to the canal."). Specifically, the Department determined that Petitioners' application was inconsistent with the following provisions of the CZMP:

(1) Chapter III, Section C.3(I)(7): "The possible long-range, cumulative effects of the project, when viewed in the context of other possible development and the general character of the area.";

(2) Chapter III, Section VI.C(1)(a): "Docks and piers will not be approved where they interfere with navigation or reasonable public use of waters.";

(3) Chapter III, Section VI.C(1)(c): "Docks and piers must be limited to a reasonable size and extension for the intended use."; and

(4) Chapter III, Section VI.C(1)(d): "Docks and piers should be located and designed to minimize disruption and shading out of salt, brackish or freshwater wetland vegetation." See Resp't Ex. #3, at 1. In its denial letter, OCRM also noted that:

Even though this project is located outside OCRM's direct permitting area (i.e. Critical Area), the project will cross and impede navigation in an existing navigable waterway. Under the permitting rules and regulations, projects are not allowed to cross these types of waterways and would be denied. Therefore, in addition to the expressed policies stated above [i.e., the provisions of the CZMP], the provisions of [23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2001)] were considered as guidance during this review[.]

Id. (emphasis added).

7. At the hearing of this case, two OCRM employees, George Madlinger and Jeff Thompson, testified that they had personally navigated the canal that would be crossed by the walkway of Petitioners' proposed dock. The two men described navigating the canal without difficulty in a 17-foot Boston Whaler some one to one-and-half hours before high tide on June 26, 2002.

8. The South Carolina Coastal Zone Management Program was developed by the South Carolina Coastal Council (the predecessor entity to OCRM) and was approved by the South Carolina General Assembly and Governor Richard Riley on February 14, 1979. Subsequently, on June 19, 1979, the CZMP was submitted by Governor Riley to the Office of Coastal Zone Management of the National Oceanic and Atmospheric Administration for its approval as required by federal law. See Resp't Ex. #6.

CONCLUSIONS OF LAW

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

In the instant case, Petitioners applied for a permit from the United States Army Corps of Engineers under Section 10 of the Rivers and Harbors Act of 1899, see 33 U.S.C. § 403 (2000), and a Navigable Waters Permit from DHEC's Office of Environmental Quality Control, see 23 S.C. Code Ann. Regs. 19-450 et seq. (Supp. 2001), for the construction of a dock and walkway on the Ashepoo River in Colleton County, South Carolina. Pursuant to the applicable federal and state statutes and regulations, OCRM reviewed Petitioners' permit application to determine whether the project would be consistent with the South Carolina Coastal Zone Management Program (CZMP). See 15 C.F.R. § 930 et seq. (2002); 23 S.C. Code Ann. Regs. 19-450.6, 19-450.7(C)(1). At the close of its consistency review, OCRM determined that the proposed dock was inconsistent with certain provisions of the CZMP and therefore declined to issue a consistency certification for Petitioners' application. Specifically, the Department found that, by crossing a small canal adjacent to Petitioners' properties, the proposed structure would unnecessarily impede navigation and burden the environment. Petitioners now challenge that decision before this tribunal.

Petitioners contend that the Department's decision to refuse certification to their permit application is flawed in several respects. First, Petitioners allege that OCRM improperly based its refusal to certify the permit on a Department regulation pertaining to dock applications in the critical areas of the state, rather than on the policies of the CZMP. Second, Petitioners contend that, even if OCRM did rely upon the provisions of the CZMP in denying certification to their permit, OCRM's use of the CZMP's provisions as binding norms for evaluating the consistency of the permit is invalid because the CZMP is merely a Department policy document and not a valid regulation promulgated under the APA. Third, Petitioners argue that, even if OCRM's review of the permit under the policies of the CZMP is proper, its conclusion that the proposed dock would impede navigation is in error because the canal bordering Petitioners' properties is not navigable in a practical sense. In response, OCRM contends that it only referred to its critical area regulations as guidance in making its determination, that it properly evaluated Petitioners' permit application under the provisions of the CZMP as required by the relevant statutory authority, and that Petitioners' canal is indeed navigable such that a walkway bridging the canal would impede navigation. Addressing each point in turn, I find that OCRM's decision to refuse certification to Petitioners' permit must be sustained.

Petitioners' contention that OCRM based its certification decision on a critical area regulation, rather than on the CZMP, must be rejected. While OCRM did make reference in both its consistency determination and its denial letter to 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2001), which applies only to dock construction in critical areas, OCRM plainly specified in both documents that Regulation 30-12 was merely "considered as guidance during [the] review" and that this guidance was only sought "in addition to the expressed policies [of the CZMP] stated above" as the basis for its determination of inconsistency. See Resp't Ex. #2, at ¶ V.B; Resp't Ex. #3, at 1. ⁽³⁾ Further, despite some confusion on the part of the OCRM employee who conducted the initial review of the permit regarding the application of Regulation 30-12 to the project, the two OCRM employees who had final approval authority over the certification decision clearly testified that the project's inconsistency with the CZMP, and not with the critical area regulation, was the sole ground for the Department's determination of inconsistency. See Hr'g Tr. at 93 (testimony of Jeff Thompson), 115 (testimony of Robert Mikell). ⁽⁴⁾ In short, OCRM based its decision to refuse certification to Petitioners' permit on the inconsistency between the proposed dock and the provisions of the CZMP, and not on the requirements of Regulation 30-12 or any other regulations pertaining to the critical area.

Petitioners' second argument, that the Department improperly relied upon the CZMP in making its consistency determination, must also fail. Relying upon Captain's Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991) and the Administrative Procedures Act (APA), S.C. Code Ann. §§ 1-23-10 et seq. (1986 & Supp. 2001), Petitioners contend that, because the CZMP has not been promulgated as a regulation under the APA, the CZMP is merely a Department policy without the force and effect of law, and that, as such, the CZMP cannot be employed by OCRM as a binding norm for the evaluation of permit applications. To the extent this argument calls for an evaluation of the legality of the CZMP, this tribunal is without authority to address the question. Whether or not the CZMP can be squarely characterized as a statute or regulation, it is an enactment of the South Carolina General Assembly that this tribunal, as an agency of the executive branch of government, must presume to be valid and having the full force and effect of law. ⁽⁵⁾ See Video Gaming Consultants, Inc. v. S.C. Dep't of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000) ("ALJs are an agency of the executive branch of government and must follow the law as written until its constitutionality is judicially determined; ALJs have no authority to pass upon the constitutionality of a statute or regulation."); see also State v. Charron, 351 S.C. 319, 323, 569 S.E.2d 388, 390 (Ct. App. 2002) ("The supreme legislative power of the State is vested in the General Assembly; the provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution[.]"). ⁽⁶⁾

Further, to the extent Petitioners' argument can be understood not as an attack on the legality of the CZMP, but as a challenge to OCRM's implementation of the CZMP consistency review process, this tribunal finds that OCRM has properly fulfilled its responsibilities under the applicable statutory scheme. Pursuant to the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10 et seq. (Supp. 2001), OCRM is required to "develop a comprehensive coastal management program" for the lands and waters in the coastal zone of South Carolina. S.C. Code Ann. § 48-39-80 (Supp. 2001). This Coastal Zone Management Program must include "a system whereby the department shall have the authority to review all state and federal permit applications in the coastal zone, and to certify that these do not contravene the management plan," id. § 48-39-80(B)(11), and OCRM is specifically granted "the responsibility for enforcing and administering the program in accordance with the provisions of [Chapter 39 of Title 48] and any rules and regulations promulgated under [that] chapter." Id. § 48-39-80. ⁽⁷⁾ Therefore, under Section 48-39-80, the CZMP itself is required to contain provisions for conducting a consistency review and OCRM is authorized to execute the provisions of the CZMP. And, unlike S.C. Code Ann. § 48-39-130(B) (Supp. 2001), which requires OCRM to develop regulations for evaluating permit applications for the critical area, and which OCRM ran afoul of, as enunciated in Captain's Quarters, by failing to promulgate a permitting rule as a regulation, Section 48-39-80 does not mandate that OCRM adopt regulations to implement the CZMP. Rather, Section 48-39-80 merely requires that OCRM's implementation of the CZMP be "in accordance with" the other provisions of the Coastal Zone Management Act and any regulations that have been promulgated under the Act. Despite Petitioners' arguments to the contrary, Section 48-39-80 plainly contemplates that OCRM will directly enforce and administer the CZMP, including consistency certifications made under the CZMP, without the need for implementing regulations.

In sum, as to this issue, this tribunal must presume that the CZMP has the force and effect of law, and thus conclude that OCRM's use of the provisions of the CZMP as binding norms during its consistency review is valid. Further, the Coastal Zone Management Act clearly authorizes OCRM to conduct consistency reviews under the CZMP itself without the promulgation of further regulations.

Petitioners finally argue that, even if OCRM's review of the permit under the CZMP is legitimate, OCRM's conclusion that the proposed dock will impede navigation so as to be inconsistent with the provisions of the CZMP is erroneous. Specifically, Petitioners contend that the small canal to be bridged by the dock's walkway is not navigable in any meaningful way, and that, consequently, a walkway bridging the canal would not impede navigation, particularly if the walkway were raised by six feet as proposed by Petitioners. This argument cannot succeed.

Chapter III, Section VI.C(1)(a), of the CZMP provides that "[i]n the coastal zone, OCRM review and certification of permits for docks and piers will be based on the following policies: a) Docks and piers will not be approved where they interfere with navigation or reasonable public use of the waters." ⁽⁸⁾ In determining whether a waterway is navigable, "[t]he true test to be applied is whether a stream inherently and by its nature has capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use." State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 449, 346 S.E.2d 716, 719 (1986) (first emphasis in original). This "[v]aluable floatage is not necessarily commercial floatage," id., and can include pleasure boating by members of the general public. See id. at 449-50, 346 S.E.2d at 719. Further, "[t]he fact that a waterway is artificial, not natural, is not controlling," Hughes v. Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (Ct. App. 1990), and "[w]hen a canal is constructed to connect with a navigable river, the canal may be regarded as a part of the river." Id. And, importantly for the case at hand, "[t]he test for navigability is not whether a waterway is accessible at all times[; but] [r]ather, the test is whether it is accessible 'at the ordinary stage of the water.'" Id. at 106, 399 S.E.2d at 26 (quoting Columbia Water Power Co.).

Here, the evidence in the record clearly demonstrates that the canal bordering Petitioners' properties is a navigable waterway. The canal may not be navigable at all times and tides, and it may not be frequently navigated at those times it is passable. Nevertheless, at its ordinary stage, the canal does have the capacity for valuable floatage, and as such, is legally navigable. Bridging this navigable canal with a dock walkway-even by a slightly raised walkway-would interfere with navigation in the canal and would impair the reasonable public use of the waters in the canal. Accordingly, OCRM's determination that the proposed dock project is inconsistent with the protection of the public interest in navigable waterways found in Chapter III, Section VI.C(1)(a) of the CZMP, must be sustained.

This determination that the canal is navigable and that the construction of a walkway across the canal would interfere with navigation also supports the other grounds cited by OCRM for its denial of certification to Petitioners' application. In reaching its decision in this matter, OCRM was justified in considering the potential negative cumulative impact on navigation and the environment that would result if such bridgings of navigable streams were routinely permitted. See CZMP, Chapter III, Section C.3(I)(7). OCRM was also justified in determining that, by crossing a navigable waterway that connects to the Ashepoo River simply to reach the Ashepoo River directly, the proposed dock was not limited to a reasonable size and extension for its intended purpose, and that, by unnecessarily crossing nearly 200 feet of marsh to directly reach the Ashepoo, the proposed dock was not located and designed to minimize disruption and shading out of salt, brackish or freshwater wetland vegetation. See CZMP, Chapter III, Section VI.C(1)(c), (d). In conclusion, OCRM properly concluded that Petitioners' proposed dock project is inconsistent with the provisions of the CZMP.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that OCRM's decision to deny a coastal zone consistency certification to Petitioners' application for a dock permit on the Ashepoo River is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

December 12, 2002

Columbia, South Carolina

1. While OCRM's coastal zone consistency determinations are not final permitting decisions, these certification decisions are nevertheless reviewable as contested cases under the provisions of the South Carolina Administrative Procedures Act (APA). See Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 522 n.14, 560 S.E.2d 410, 418 n.14 (2002).

2. By definition, the "coastal zone" of South Carolina includes "all lands and waters" in Beaufort, Berkeley, Charleston, Colleton, Dorchester, Horry, Jasper, and Georgetown counties. S.C. Code Ann. § 48-39-10(B) (Supp. 2001). In contrast, only coastal waters, tidelands, beaches, and beach/dune systems are considered "critical areas" under South Carolina law. Id. § 48-39-10(J).

3. In particular, the CZMP's proscription that docks and piers "will not be approved where they interfere with navigation or reasonable public use of waters" and its prescription that docks and piers "must be limited to a reasonable size and extension for the intended use," see CZMP, Chapter III, Section VI.C(1)(a), (c), reflect a similar policy concern as Regulation 30-12. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2001) ("Docks must extend to the first navigable creek . . . . [and] [s]uch creeks cannot be bridged in order to obtain access to deeper water."). These provisions of the CZMP are broader in scope than Regulation 30-12(A)(2)(n) and clearly support OCRM's decision independent of Regulation 30-12.

4. When asked to elaborate on why the critical area regulation was cited in the consistency determination, Mr. Mikell testified that "the critical area had put a lot of emphasis on this problem of jumping creeks, so we wanted to emphasize it. We tried to be very clear that we weren't using this policy as the reason for our denial but just as an emphasis that there was a less damaging alternative." Hr'g Tr. at 115.

5. The original version of the CZMP was ratified by the General Assembly, signed by the Governor, and published as a special version of the State Register in the late 1970s. See 1979 S.C. Acts 904; 2 S.C. State Reg., No. 26 (Oct. 20, 1978). Certain amendments to the CZMP were adopted by the same procedure in 1993 and likewise published in the State Register. See 17 S.C. State Reg., No. 5, Part I, at 155-66 (May 28, 1993); 17 S.C. State Reg., No. 6, at 55-56 (June 25, 1993).

6. It should further be noted that the question of the legality of the CZMP is currently pending before the South Carolina Supreme Court in Tony Porter et al. v. S.C. Dep't of Health & Envtl. Control, C/A No. 01-CP-07-944.

7. A brief summary of the legal basis for OCRM's consistency review under the CZMP can also be found in Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 516-17, 560 S.E.2d 410, 415 (2002).

8. This concern for the interests of the public in the unimpeded use of waterways is firmly rooted in South Carolina law. The rights of the public in navigable waters have their origins in the common law, see State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 190, 63 S.E. 884, 889 (1909), and these common-law rights have been preserved in the South Carolina Constitution and the South Carolina Code of Laws. See S.C. Const. Art. XIV, § 4 ("All navigable waters shall forever remain public highways free to the citizens of the State and the United States . . . ."); S.C. Code Ann. § 49-1-10 (1987) ("All streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navigable watercourses and cuts are hereby declared navigable streams and such streams shall be common highways and forever free, as well to the inhabitants of this State as to citizens of the United States . . . .").