South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Northern Beaufort County Committee vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Northern Beaufort County Committee

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, and Bull Point LLC
 
DOCKET NUMBER:
96-ALJ-07-0117-CC

APPEARANCES:
For the Petitioner: James Stuart Chandler, Jr., Esquire
For the Respondent, DHEC: Mary D. Shahid, Esquire
For the Respondent, Bull Point LLC: Ellison D. Smith, IV, Esquire
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE

This is a contested case, pursuant to the South Carolina Administrative Procedures Act, in which the Northern Beaufort County Committee ("Petitioner") challenges the proposed issuance of a critical area permit (permit 95-1G-332-P, which is hereafter referred to as the "permit" or "OCRM permit"), a coastal zone management consistency certification, and a 401 water quality certification to Bull Point LLC ("Bull Point") by the South Carolina Department of Health and Environmental Control ("DHEC") and DHEC's Office of Ocean and Coastal Resource Management ("OCRM"). The permit and certifications would allow Bull Point to construct four driveways, one road crossing, one boat ramp and staging dock, a board walk to Plantation Island, one community dock and a bridge to Big Bull Island, all of which are either within the "critical area" as defined in S.C. Code Ann. 48-39-10(J) (1976) or in jurisdictional wetlands regulated under 404 of the federal Clean Water Act, 33 U.S.C.  1344.

Petitioner alleges that the permit and certifications violate: (1) S.C. Code Ann.  48-39-30, 48-39-150; (2) S.C.Code Regs. 30-11(B) & (C); (3) S.C.Code Regs. 30-12(A), (G) and (N); (4) S.C.Code Regs. 61-57 and 61-101; and (5) Coastal Management Program (CMP) Policies at III-14 - III-17, III-61 - III-62, as found in the Program Refinements to the CMP dated August 2, 1993, regarding Wetland Master Planning and Dock Master Plans.

An initial hearing in this matter was conducted on June 19 and 20, 1996 at the Beaufort County Courthouse in Beaufort, South Carolina, and was concluded, following a recess, on July 2, 1996 at the Administrative Law Judge Division ("Division") offices in Columbia, South Carolina.

For the reasons that follow, the permit is granted with certain conditions.

SUMMARY OF THE EVIDENCE

A. Background Facts

To adequately understand the issues raised in this case, a description of the area where the permitted and certified activities are to take place is in order. Bull Point is a 654-acre drum stick shaped peninsula of high ground which extends in a southerly direction from Highway 17 near its intersection with Highway 21 in Beaufort County, South Carolina. At the tip of the peninsula is Huspah Creek, a tidal saltwater creek which empties into Whale Branch south of the property; it forks so that the entire peninsula, except where it adjoins Highway 17, is flanked on both sides by the waters of Huspah Creek and tidal salt marsh. Approximately half way down the peninsula on its western side, separated by approximately 700 feet of tidal salt marsh, is a ten acre island known as Big Bull Island, a part of the Bull Point property. With the exception of the village of Gardens Corner to the east, and the community of Sheldon to the west, the entire area is sparsely populated. The peninsula of Bull Point is unusual for the coastal plain of South Carolina because its topography is significantly higher and ranges anywhere from seven to thirty feet above mean sea level. In fact, none of the 146 lots in the proposed development are within the Federal Emergency Management Authority (FEMA) Flood Zones. The development is located on the peninsula and is largely confined to its eastern side until it reaches the narrower point of the drum stick and then proceeds to the tip of the peninsula. A site visit during the hearing confirmed that Bull Point does indeed have an unusual topography and that the 146 lots under development are located on the higher portions of the peninsula.

B. Permits and Certifications at Issue

The permits and certifications issued by OCRM allow Bull Point to: (1) fill 0.49 acres of freshwater wetlands for four driveway crossings and one road crossing; (2) construct one boat ramp and a staging dock; (3) construct one community dock; (4) construct a six-foot wide by 770 foot long boardwalk connecting the peninsula on its east side with a small island; and (5) construct a 750-foot long by 22-foot wide vehicular bridge connecting Bull Point to Big Bull Island.

During the hearing, Petitioner conceded that the boardwalk, the boat ramp with its staging dock, and the community dock were not an issue before the court and that their only challenge was directed to the 0.49 acres of wetland fill, the bridge to Big Bull Island, and the use of septic tanks as a means of sewage treatment and disposal for the planned development. This court, in a pretrial Order dated June 19, 1996, allowed Petitioner to present evidence "on the cumulative impact of the individual septic tank systems on all lots shown in the proposed development." Accordingly, the issue involving septic tanks on Bull Point was limited by this court's order to whether or not DHEC appropriately considered the cumulative impact of 146 individual septic tanks on the surrounding marshes and waters of Huspah Creek.

C. Summary of the Testimony

Petitioner presented a total of seven witnesses: Sally Murphy, Paul Chisolm, Katherine Doak, Jane Settle, Steve Snyder, Steve Moore, and Dr. B. L. Carlile.

Sally R. Murphy, a biologist employed with the Department of Natural Resources, lives at Green Pond in Colleton County, South Carolina. She testified that she and her husband own seventeen acres of property across the western branch of Huspah Creek in the Sheldon community. Ms. Murphy testified that she is on the Board of Directors of the Northern Beaufort County Committee, formed in 1994 to oppose a national weather service tower to be built near the Whale Branch River. According to Ms. Murphy, Petitioner is made up of people who live in Tax District 70 west of Whale Branch who are concerned about preserving the quality of life in rural northern Beaufort County. Petitioner has no membership criteria, nor a membership list, but considers everyone who lives in Tax District 70 to be a potential member. Petitioner's members are either residents of or property owners in northern Beaufort County.

Mrs. Murphy testified that the Sheldon Community Enrichment Program, Inc. ("Sheldon") provides tutoring and enrichment programs for children and aid to the elderly. Also, she testified that Petitioner was a standing committee of Sheldon and has since its inception operated under its by-laws, having no by-laws of its own. (Bull Point Exhibits 33 and 35). Ms. Murphy further testified that when Petitioner filed its request for a hearing, no one on behalf of the Board of Directors contacted other members of Petitioner to determine whether or not they supported the appeal or how they felt about the permits and certifications issued to Bull Point.

One of her primary concerns with the proposed development centered around the bridge to Big Bull Island which, in her opinion, would interfere with the scenic vista of Huspah Creek. She was concerned about potential for non-point pollution from "whatever drips from cars" traversing the bridge which might be washed into the marshes. Further, she was concerned that potential docks and the bridge might be visible from her property and would not be aesthetically pleasing. Additionally, she expressed general concern about the development of Bull Point characterizing it as a suburban development in a rural setting that would bring in more people, boats, cars, and traffic lights and "that sort of thing." Ms. Murphy expressed concern about the possibility of seeing lights on Big Bull Island from her property across Huspah Creek, and believes that lower density development on Bull Point would be more desirable. She stated that an 84-lot development would be more acceptable.

Mr. Paul Chisolm lives in a residence located on a 41 acre tract adjacent to Huspah Creek and approximately a half mile southwest of Bull Point. Mr. Chisolm has been on the Board of Petitioner since its inception in 1994. He shrimps and crabs in the waters of Huspah Creek and its tributaries. He expressed concern that run-off from septic tanks would contaminate the waters adjacent to Bull Point, affecting oysters and clams; however, he acknowledged that the waters had been closed to shellfish gathering for years. Mr. Chisolm's home is serviced by a well and a septic tank.

Ms. Katherine Harriet Doak, a wildlife biologist with the United States Fish and Wildlife Service ("Service") office in Charleston, South Carolina, testified that the Service provides comments and recommendations to permitting agencies such as OCRM and the United States Army Corps of Engineers ("Corps") on projects involving the issuance of coastal consistency certifications, 401 Water Quality Certifications, and Corps 404 permits under the Clean Water Act. She testified that 404 permits involve any kind of dredging or filling or mechanized land clearing within the jurisdictional waters of the United States, which includes wetlands.

Ms. Doak testified that she reviewed Bull Point's permit application and attended an on-site interagency meeting in November 1995 at Bull Point where she, along with other representatives of both state and federal agencies spent a part of the day touring Bull Point, specifically looking at the isolated freshwater wetlands existing on the property.

Ms. Doak testified that wetland "J" on the Bull Point permit drawings, where fill is to be placed for four driveway crossings, was the largest wetland on the 654-acre tract, and felt that four driveway crossings were excessive, preferring instead one crossing of the wetland. Ms. Doak testified that her site visit also included an inspection of the area between wetland "J" and the property designated as upland below the wetland (between the wetland and the adjacent saltmarsh). The lots in this area drop off in elevation as one moves from the road to the wetland, and the area below the wetland, although designated as upland, is not significantly higher in elevation than the wetland.

Ms. Doak said that four crossings of wetland "J" appeared to be an excessive encroachment. Her opinion was that one crossing would be sufficient to access the highland. She stated that the filling at the four crossings would directly eliminate wetlands, and the resulting fragmentation of the wetland would also degrade the overall wetland system.

Ms. Doak and the Service recommended an alternative to filling the wetland the crossings could be bridged in whole or in part. ( Pet. Ex. 1). The use of bridges would save the wetland habitat, maintain the natural wetland grade and vegetation, and leave the wildlife corridor essentially intact. She said that placement of a pipe beneath each driveway, while allowing for surface water flow if positioned correctly, would not eliminate the concerns about fragmentation of the wetland and direct loss of habitat through filling. Ms. Doak acknowledged that the federal agency in charge of permitting impacts to freshwater wetlands was the Corps and that she was aware that the Corps had issued the 404 permit for the driveway crossings.

Ms. Doak also testified that her agency had some concern about construction of the bridge to Big Bull Island and recommended that it be built at a higher elevation to increase sunlight penetration under it or construct a one lane bridge.

Lastly, Ms. Doak opined that while she thought the preservation in perpetuity of the remaining 31.67 acres of wetlands on the tract under development was appropriate mitigation for the fill of less than one half an acre of freshwater wetland, there should have been some requirement that the larger wetlands be buffered to protect them from human intrusion and safeguard wildlife habitat.

Ms. Jane B. Settle is an environmental quality manager with the marine division of the South Carolina Department of Natural Resources ("DNR"), Having held that position since July, 1995. Prior to that, she was a biologist with DNR. Part of her duties and responsibilities require her to prepare official comments for DNR on projects requiring OCRM permitting or certification.

Ms. Settle also attended the interagency meeting at the site in November of 1995. She believes that wetland "J" is the largest and highest quality wetland on the tract. Ms. Settle felt that the placement of four driveways through wetland "J" would result in the fragmentation of habitat (the inability of creatures living in the wetland to move back and forth freely) and might result in potential water quality impacts from runoff and human encroachment.

Ms. Settle further testified that she originally had concerns about the height of the bridge to Big Bull Island when its elevation was proposed at four feet, she was not aware that a condition of the OCRM permit requires the elevation be raised to five feet. Although she had not calculated the mathematics, she was sure the additional foot in elevation would alleviate most of her concerns. Finally, Ms. Settle testified she was concerned that the remaining 31.6 acres of wetlands, all of which are to be preserved in perpetuity, are not to be protected by a 35 foot buffer.

Steve Snyder is the Director of the Coastal Zone Management Division within OCRM, having held that position for the last ten years. He exercises final authority over OCRM consistency certifications.

Mr. Snyder testified that insofar as the 0.49 acres of wetland fill at Bull Point was concerned, it has been the policy of OCRM, consistent with its regulations, to allow placement of fill in wetlands for vehicular driveways. Further, after a review of Bull Point's application and site visits by members of his staff, OCRM determined that the four driveways across wetland "J" provided reasonable access to the lots. He explained that Bull Point had originally proposed eight driveway crossings, but OCRM had reduced the number to four. Insofar as mitigation of the wetland fill is concerned, Mr. Snyder testified that OCRM has no hard and fast mitigation formula but rather exercises discretion and decides appropriate mitigation based upon the nature of the fill involved.

Mr. Snyder further testified that Bull Point, OCRM's request, engaged in Wetlands Master Planning. This policy is applied to large undeveloped acreage and allows a property owner to fill isolated wetlands containing an acre or less where there are no endangered species or critical habitat, without restriction, as long as the owner mitigates for the fill. Further, it allows OCRM to exercise control early in the process and provides a property owner with the ability to engage in long-range planning without the necessity of having to obtain individual permits for each minor wetland fill. In the case of Bull Point, some 32 acres of isolated wetlands were identified early on in the permitting process, and under the Wetlands Master Planning policies, Bull Point could have filled approximately ten and one-half acres of wetlands. Mr. Snyder testified that since Bull Point intends to fill less than one half an acre, the preservation of over 31 acres without additional acreage being set aside for buffers is reasonable and appropriate mitigation, consonant with OCRM policies and procedures.

Further, Mr. Snyder said that for mitigation purposes OCRM is requiring the remaining wetlands at Bull Point to be protected from any disturbance through a deed restriction, covenant, easement, or similar document. However, no upland buffers adjacent to the wetlands are being required. Although mitigation policies allow OCRM discretion to make a determination whether wetland impacts of a project are so minimal as to warrant no mitigation, a determination was made in the case of Bull Point requiring mitigation. Since Bull Point voluntarily agreed to leave the remaining freshwater wetlands undisturbed, although 22 acres of them met OCRM's definition allowing fill, OCRM did not require Bull Point to impose a 35 foot buffer around these wetlands. As of the date of the hearing, the restrictive covenants required as mitigation have not been submitted by Bull Point.

Mr. Snyder further testified that in reviewing a project for certification approval, his staff evaluates potential impacts on Geographic Areas of Particular Concern ("GAPCs"). GAPCs are resources that warrant extra consideration or protection in making permit and certification decisions. He identified shellfish areas as a GAPC potentially impacted by the Bull Point project. Public comments were received by OCRM expressing concerns about the impact of the development on adjacent shellfish beds. However, he acknowledged the OCRM certification records contain no documentation of any assessment by OCRM of the potential impacts, whether direct, indirect or cumulative, for developing Bull Point with septic tanks. He stated that OCRM reached no conclusions about the impact of septic tanks at Bull Point. He further stated that OCRM has no process for reviewing DHEC decisions on subdivision approval for septic tanks, nor for review of individual septic tank permits.

Mr. Snyder testified that OCRM has concerns about septic tanks, particularly if they are located close to sensitive areas. He acknowledged that the CMP contains policies directing OCRM to require "adequate sewage disposal service (septic tanks or treatment systems) which meet the Environmental Protection Agency, the South Carolina Department of Health and Environmental Control, and local health department standards . . . in residential development plans," and directing OCRM to "coordinate with local health departments, DHEC, and other implementing agencies to ensure that septic tank standards and regulatory enforcement are adequate to protect coastal resources."

Mr. Snyder testified that his staff did not consider potential impacts of developing the property with septic tanks. He stated that his division does not review and certify DHEC septic tank permits. Mr. Snyder testified that OCRM did not have the staff capability to review individual septic tank permits in the coastal zone since approximately 3500 permit applications for septic tanks are filed in the eight coastal zone counties every year. Mr. Snyder and his staff follow policy set forth in the CMP providing that adequate sewage disposal service, which meets DHEC and local health department standards, must be provided in residential development plans. However, he stated that OCRM relies on the Bureau of Environmental Health of DHEC to determine whether or not property owners seeking OCRM certifications and permits meet the specific state regulations regarding the suitability of their property for the approval and installation of septic tanks.

Mr. Snyder further testified that OCRM has no authority, under either statute or regulation, to control the use of septic tanks legally approved and permitted by the Bureau of Environmental Health. He testified that his staff through the years has had a number of meetings with members of the Bureau of Environmental Health, and that it was his understanding that environmental protection, particularly with regard to nearby water sources, was an integral part of the specific septic tank regulations administered and enforced by the Bureau of Environmental Health's division of on-site management.

Mr. Steven Moore is the Director of Permitting at OCRM, having held that position since July of 1984. It is his responsibility to make final decisions on the issuance of OCRM permits. Mr. Moore testified that in issuing the permit, he did not take into account the cumulative impacts of multiple septic tanks on the property because there is no mechanism within his division to perform that task. Instead, he relied on the Bureau of Environmental Health and their application of regulations concerning the approval or denial of sewage disposal treatment systems and subdivision planning for such systems.

Concerning the permitting of the bridge to Big Bull Island, Mr. Moore testified that issuance of the permit for the bridge was controlled by S.C. Code Regs. 30-12(N) (Supp. 1995). He testified that he and his staff reviewed and applied each of the criteria set forth in the regulation in permitting the bridge. He testified that the bridge met all of the criteria of the regulation, as it had been historically applied by OCRM and previously by the South Carolina Coastal Council in bridge permitting decisions. In applying this criteria in the bridge permitting analysis, he testified that two members of his staff met with local representatives of the Bureau of Environmental Health at Big Bull Island; and as a result of that meeting, had been assured that the island could accommodate five to seven DHEC approved septic tanks.

Lastly, Mr. Moore testified that his staff had required Bull Point to raise the height of the bridge to Big Bull Island from four to five feet above mean sea level to insure that spartina marsh grass under the bridge itself would receive adequate sunlight.

Dr. Bobby L. Carlile is president of B. L. Carlile and Associates, a soil and engineering consulting firm with offices in Texas. He has worked with developers, industries, citizens groups and the regulatory community, evaluating various projects and developing on-site waste water systems and management programs. He has worked with health departments and regulatory agencies in several states and has given seminars to regulatory agencies. He holds a Master's degree in Sanitary Engineering from Washington State University; and a Ph.D. is Soil Science from Washington State University. Dr. Carlile was on the faculty at North Carolina State University for over ten years where he worked in the areas of animal waste disposal, municipal waste disposal, and onsite waste water systems. From 1982 to 1988 he was employed at Texas A & M University. He has been self-employed as a consultant since 1988. He is a licensed professional engineer and a certified soil scientist. Dr. Carlile was stipulated to be an expert in the areas of soils and on-site waste water treatment and disposal systems.

Dr. Carlile described an onsite waste water treatment and disposal system as a means of handling and safely disposing of waste water, generally from a single residence. He stated that a properly designed, sited, and functioning septic tank system can treat waste water as good or better than many municipal systems. Siting is a critical factor in determining how well a septic tank system will function. Important siting factors include: flood potential; the type of soils present; depth to the seasonal high water table; and the slope of the land. As for flood potential, septic systems should not be built in flood plains, since flooding can adversely impact a waste water disposal system.

Dr. Carlile said that soil is a major factor which will determine whether effluent will remain below the surface of the ground, and is critical in determining how well the waste water will be treated before leaving the property either through going into underlying groundwater or flowing laterally and leaving the property line onto someone else's property.

Two major soil considerations in treating waste water are (1) how long will it be retained in the soil before leaving the site; and (2) the aerobic status of the soil whether it will provide for oxidation of ammonia and organics and incapacitate or treat the pathogens. Clays tend to provide the longest retention times, but can be anaerobic and thus not allow for adequate treatment. Coarse sands provide the best oxidation, but are also the poorest in terms of retention time. The best soils are a mixture of clays and sands. He testified that the seasonal high water table is the level at which the soil is totally saturated for significant periods of time each year generally one to three months. The seasonal high water table is indicated by the color of the soil, by gray mottles or other indicators of significant saturation.

Also, Dr. Carlile testified that the slope of land has an impact upon the water table of the land, particularly where there are slope breaks adjacent to surface waters. Slopes adjacent to surface waters act as drainage outlets for groundwater, so that the groundwater level would be lower right at the slope because the water has a way to drain out. When waste water systems are placed near slopes, even though the water table conditions may appear better than those in flat lands behind the slopes, the ground water is moving more rapidly near the slopes, due to the steeper groundwater gradients, and whatever is placed in those ground waters will be moving toward the surface waters fairly rapidly.

He said that research indicates that under the right conditions, waste water can be treated with as little as one foot of unsaturated soil beneath the waste water system. Dr. Carlile said that in clay soils, one to two feet of unsaturated soils would probably provide adequate treatment. In coarse sands, where waste water flushes through rapidly, more separation is needed a minimum of two feet of unsaturated soil beneath the gravel in septic system trenches.

Dr. Carlile performed an analysis of the Bull Point property for its suitability for septic tanks. In performing the analysis he examined a plat of the property, soil survey maps prepared by the U.S. Department of Agriculture ("USDA") and the Soil Conservation Service, the DHEC soil boring logs, topographical maps of the property, and visited the site to make soil borings of his own.

Dr. Carlile performed a limited evaluation of the soils, to generally verify that the soils were as they are shown on the USDA soil surveys, and to compare some lots to the DHEC boring logs. He found that the soil surveys and DHEC boring logs appear to be generally accurate.

Dr. Carlile testified that based upon his random sampling, his review of the soil boring logs, a topographic map of Bull Point, and his review of the SCS soil survey maps of Bull Point, the majority of the lots on Bull Point would meet DHEC standards for the placement of septic tank systems which require a six-inch separation between the bottom of the drain field and the seasonal high water table.

Dr. Carlile was unfamiliar with the design standards for either conventional or modified septic tank systems employed by the State of South Carolina in the permitting of septic tanks, and was unaware of any areas in Beaufort County which had experienced environmental pollution as a result of the use of septic tanks for sewage treatment disposal systems.

DHEC & OCRM presented four witnesses: Richard Hatfield, Leonard H. Wilson, Don Campbell, and Rheta Geddings.

Mr. Richard Hatfield is the Director of DHEC's division of on-site waste water management, and has served in that capacity for seven years. He began working with DHEC in June of 1976 as a Sanitarian in the Pee Dee area of South Carolina, and during the past twenty years all of his activities for DHEC have been in the environmental health area, and have been specifically directed to on-site waste water management including septic tanks. Mr. Hatfield was qualified as an expert in on-site waste water management systems.

Mr. Hatfield was involved in DHEC's promulgation of the current versions of S.C.Code Regs. 61-56 (1992), dealing with individual sewage treatment and disposal systems, and S.C.Code Regs. 61-57(1992), dealing with the development of an individual subdivision's water supply and sewage treatment/disposal systems. Mr. Hatfield has coordinated and supervised system performance surveys of approximately one thousand on-site wastewater systems in the last seven years.

He testified that DHEC issues permits for two types of septic tank systems: conventional systems, the standards for which are found in Regs. 61-56 and in DHEC's on-site wastewater program reference manual, and alternative systems, the standards for which are not found in the regulation but in DHEC's program manual or reference guide. He further stated that for the most part an alternative system in "this part of the state" is one whose drain lines or absorption system is not installed as deeply as a conventional system in order to stay above the water table.

Mr. Hatfield stated that in order for a property owner to obtain a septic tank permit, he must submit an application to the county health department where the property is located, along with a copy of a plat or map of the property. Field staff or environmentalists then visit the property to determine its suitability. If the site meets any of the requirements for a conventional or alternative system, the sanitarian will develop a permit which includes the plans and specifications for construction of the system.

Regulation 61-57 requires that all subdivisions be served by approved public water and sewer systems, if accessible for connection, or if in the opinion of the department the public's health and the environment would best be protected by the installation of such systems. Mr. Hatfield believes Regs. 61-56 and 61-57 mandate a consideration of whether or not there will be negative cumulative impacts to adjacent water bodies as the result of permitting of septic tanks. These considerations, according to Mr. Hatfield, are embodied in the regulation which requires that drain fields be situated above the seasonal high water table and that there be a minimum of a fifty-foot setback from state waters. Additionally, Mr. Hatfield testified that the construction standards (i.e...concrete strengths, types of aggregate, types of pipe, widths and depths of trenches, etc....) which apply to the installation of all septic tank systems in South Carolina are designed to guard against negative environmental impacts from the use of septic tanks as sewage treatment disposal systems.

Mr. Hatfield testified that DHEC performs periodic septic tank surveys throughout South Carolina designed to determine the actual performance of septic tanks after they are installed. OCRM Exhibit 7, a document entitled "System Performance Survey, Individual On-Site Waste Water Treatment Disposal Systems, Final Report," is a survey of five to six-year old systems throughout the state based upon statistically valid random sampling. The results of this survey demonstrate that the failure rate of septic tank systems, five to six years after installation, is relatively low and is in the neighborhood of six to eight percent with the exception of the six-inch stone ultra shallow systems, which have a failure rate of approximately fifteen percent. Mr. Hatfield attributed the difference in failure rates between fifteen and six percent to the fact that the ultra-shallow system has a ground cap which must be maintained by the property owner in order to function properly. A number of the failures of the ultra-shallow system were directly attributable to activities of the property owner which had damaged the cap.

Moreover, Mr. Hatfield testified that because of his working relationship and the sharing of information with his counterparts in the other Atlantic coastal states, he knows that South Carolina's permitted septic tank systems perform far better than those in other coastal states, and that overall, South Carolina's success rate is greater than ninety percent.

Additionally, he testified that DHEC has been unable to identify any significant problems with the performance of septic tanks which have contributed to water quality problems in the classified waters of the South Carolina. OCRM Exhibit 8 is a state survey of non-point source pollution of all of the major water bodies in South Carolina broken down into various categories, including septic tanks. Reference to this exhibit shows that only one location in Beaufort County was identified as having water problems which resulted from a septic tank system. Finally, Mr. Hatfield stated that the installation of septic tanks in the Bull Point subdivision would not contribute to environmental problems either on the lots themselves or in the adjacent surface waters. Finally, he testified that DHEC attributes roughly four (4%) percent of non-point - source pollution of adjacent water bodies to septic tank systems.

Mr. Leonard Wilson is the Beaufort County supervisor of environmental health for DHEC. He has been employed with DHEC for the last twelve years. Presently, he is in charge of the permitting of septic tanks in Beaufort County and conducts field evaluations, including the taking of soil borings. During his employment with DHEC he has evaluated thousands of lots to determine the property's potential for the placement of a septic tank system on it. Mr. Wilson performed the field work to evaluate Phase II of Bull Point for septic tank subdivision approval, making five or six visits to the site. The field work for Phase I was done by Mr. Wilson's predecessor. The field notes for DHEC's analysis of soils and seasonal high water table depths is found in DHEC Exhibit 10.

Wilson stated that the determination of whether or not a particular piece of property is eligible for septic tanks is based on a number of factors which include topography, set-backs, and the location of environmentally sensitive waters, but is predominantly predicated on the location of seasonal high water tables which is determined by actual soil sampling. Under Regs. 61-56, there must be a minimum of six inches of separation from a septic tank drain field and the seasonal high water table. Because septic tanks require the placement of gravel in the drain fields, DHEC will not approve the use of septic tanks on a piece of property where the seasonal high water table is less than twelve inches from the surface of the ground. To determine the location of the seasonal high water table, DHEC's sanitary technicians take a number of soil samples using a soil auger. This is a device with cutting blades, which is drilled into the soil, and upon extraction pulls up a plug of earth which is then visually examined to determine the depth of the seasonal high water table.

He said that soil mottling, i.e., change in color due to oxidation, is the indicator of seasonal high water. When examining the suitability of a larger piece of property for septic tanks, a soil boring log is maintained. This log is used to record the location of individual soil borings, the types of soils encountered, and the location of the seasonal high water table. Where a piece of property has been subdivided by plat, DHEC personnel require that the developer mark off individual lot lines so there is an established grid allowing them to take sufficient soil samples for determining whether the seasonal high water table would allow the installation of septic tanks. Mr. Wilson was stipulated to be an expert in the classification of soils pursuant to DHEC's standards and regulations for classification in relationship to field surveys and reviews for septic tank permitting.

Mr. Wilson said that Phase I and Phase II of the Bull Point development contain 146 individual lots. (OCRM Exhibit 11) He testified that the actual soil sampling done on Phase II demonstrated that all the lots were suitable for the installation of individual septic tanks. He further testified that in determining the location of the seasonal high water table, he was conservative in the interpretation of the location of the table and always erred on the side of a higher table. He said that a final approval letter had been issued by the local district office on Phase I, and that such is given only after a complete recordable plat with all the corners of lots and the numbers of the lots located thereon is provided to the local office by the developer. The final subdivision plat on Phase II has not yet been provided to the local office.

Mr. Wilson also made soil borings on Big Bull Island and found the seasonal high water table to be generally in the area of 18 to 21 inches.

He also testified that the failure of ultra-shallow septic tank systems was a result of damage caused by the owner, such as parking on top of them, removal of fill caps, and erosion caused by failure to plant grass on top of the fill; further, that such failures were not a result of any inherent problem with the systems.

Mr. Donald Campbell, the district environmental Health Director of the Low Country Health District of DHEC, was directly involved in the granting of the final subdivision approval of the installation of septic tanks as the sewage treatment disposal method for Phases I and II of Bull Point. He testified that in addition to soil characteristics, there are several factors which DHEC considers in determining whether an area is suitable for subdivision approval. These are accessibility of community sewage, the potential for rapid or protracted growth in the area, and the potential to develop the area on community sewer. The potential for growth in a given area directly impacts on the development of a community sewer system because such a system only operates properly if it receives an adequate flow. In assessing Bull Point, Mr. Campbell determined that there is not a community sewer system available in the vicinity, and that it did not appear that there was going to be protracted or expanded growth in the area due to its basically rural nature.

Mr. Campbell further testified that the soil boring logs for Phase I (OCRM Exhibit 11), like the logs for Phase II, demonstrated a seasonal high water table which would allow for the installation of DHEC approved septic tanks.

Mr. Campbell testified that subdivision approval was a DHEC determination pursuant to Regs. 61-57 of the type or method of sewage disposal treatment system that could be utilized in Bull Point. However, in order for an individual septic tank to be permitted, the Environmental Health Bureau of DHEC has to issue the permit for each lot. Thus, subdivision approval is merely a preliminary step in septic tank permitting and no individual septic tank will be allowed on Bull Point unless it meets all of the requirements of Regs. 61-56.

Rita Geddings is the section manager of the Water Quality Certification and Wetlands Program division of DHEC. Its primary responsibility is to evaluate projects requiring 404 permits to determine if state water quality standards are met. Ms. Geddings' section is responsible for the issuance of 401 Water Quality certifications. She was stipulated as an expert in the 401 certification program and in the application of S.C. Code Regs. 61-68, 61-69 and 61-101.

She testified that her staff evaluated the water quality implications of the construction of four driveways, one road crossing, a boat ramp, a staging dock, and a community dock at Bull Point. Because a bridge to Big Bull Island did not require a 404 permit, her staff did not issue a 401 Water Quality Certification which incorporated the bridge, but included the bridge in its overall review of the project. Based upon their review of the project, her staff issued a 401 certification based upon its finding that the permitted activities do not violate state water quality standards. Ms. Geddings' section did not consider the type of waste disposal system approved for the Bull Point development in its 401 evaluation. Such a consideration, according to Ms. Geddings, is beyond her section's purview because a 401 certification is a prerequisite to a 404 permit which does not incorporate any activities outside the waters of the United States. Ms. Geddings further testified that she is aware that the United States Army Corps of Engineers issued a 404 permit for Bull Point.

Ms. Geddings testified that Regs. 61-68, 61-69 and 61-101 are applicable to 401 certifications. She stated that these regulations require the agency to look at cumulative water quality impacts, both direct and indirect, over the life of the project. The regulations also require denial of a certification if there is a feasible alternative to the proposed work.

Ms. Geddings and her staff concluded that the filling of wetlands for the four driveways at Bull Point would not violate state water quality standards. This conclusion was based on DHEC's determination that the developer had minimized the impacts of the fill and had agreed to install culverts to maintain water flow and circulation. The filling of the wetlands will eliminate the wetland functions in the area of the fill; however, DHEC concluded that the remaining wetlands will function and provide water quality benefits. Ms. Geddings said that if no houses are built on the lower portion of these lots, a feasible alternative to the driveways would be the construction of wooden boardwalks across the wetland.

Ms. Geddings also testified that although the waters of Huspah Creek and its tributaries are classified as "shellfish harvesting waters," she was aware that the entire area in and around Bull Point had been closed to private and public shellfish harvesting since the early 1980's. (Bull Point Exhibits 26, 27, 28, and 29). A review of DHEC's shellfish reports concerning the waters in and around Bull Point reveals that shellfish harvesting in this area has been prohibited for approximately fifteen years due to poor water quality attributable to high levels of fecal coliform. Since the area is sparsely populated, DHEC attributes the elevated fecal coliform levels to agricultural run-off upstream of Bull Point, not as a result of malfunctioning sewage treatment disposal systems in the area.

Bull Point LLC presented two witnesses: Robert L. Wilson and Steven Wade Andrews.

Mr. Robert Wilson is the managing partner of Bull Point. He is a licensed real estate broker and is in charge of Bull Point's overall development and real estate sales. Mr. Wilson presented a series of photographs and maps of Bull Point and described the development plans. He said that Phase I has received final development approval from Beaufort County. Although the county has issued a preliminary development permit for Phase II, no final approval has been given. Bull Point has closed the sale of two lots, and about 15 lots are under contracts for sale. He stated preliminary approval allows Bull Point to construct roads, perform all the engineering infrastructure, and allow the construction of the structures permitted by OCRM.

Mr. Wilson further testified that none of the 146 lots in Phase I and Phase II of the development are within FEMA flood zones and that they can be built without the requirement of purchasing flood insurance.

Finally, Mr. Wilson testified that as a result of the publicity concerning septic tanks, and in an effort to blunt some of the concerns and hopefully enhance the marketability of the property, Bull Point was committed to imposing additional septic tank requirements on its development over and above those required by state law. The additional restrictions will include a minimum 75-foot setback from the critical area. Additionally, Bull Point will require a mandatory pump-out of septic tanks on lots whose residences do not have garbage disposals every five years, and on lots with garbage disposals every three years. Lastly, the Home Owners Association will have authority to fix any malfunctioning septic tank system within Phase I or Phase II and to place a lien on the property for recovery of the cost.

Mr. Steve W. Andrews is the President of the Andrews Consulting Engineering firm, and is in charge of the civil engineering design of the roads and drainage systems in Bull Point. He testified that Bull Point is currently zoned as rural agricultural, and under current Beaufort County zoning regulations, approximately 1,200 single-family residential units could be constructed on the property. Mr. Andrews stated that storm water management for the development had been permitted by both OCRM and Beaufort County.

Mr. Andrews testified that he saw no problems with constructing houses on the Huspah Creek side of the lots where the four driveway crossings are proposed. However, houses constructed close to the marsh of Huspah Creek would need to be elevated. The septic tanks would be located on the higher portions of the lots and a holding tank would be placed adjacent to the house; a pumping chamber would be used to pump the effluent uphill to the drain field. According to Mr. Andrews, this method of sewage treatment and disposal is not unusual in Beaufort County.

Mr. Andrews acknowledged that the portion of the lots to be served by the driveways are at elevations essentially the same as the elevations of the wetlands. These portions of the lots would be within the flood zones as established by the FEMA. Mr. Andrews acknowledged that he has not analyzed the soils on the lower portions of these lots to determine whether the soils would have limitations for construction.

FINDINGS OF FACT

By a preponderance of the evidence I make the following findings of fact:

    1. This Division has personal and subject matter jurisdiction.
    2. Notice of the date, time, place and nature of the hearing was timely given to the parties.
    3. Bull Point is a drum stick-shaped peninsula containing 654 acres of high ground located in Beaufort County, South Carolina, just west of the intersection of Highways 17 and 21. The upper portion fronts on Highway 17. Bull Point Plantation is being developed primarily as a private residential community containing 146 lots but will have a small commercial area located in the northern portion of the property along U. S. Highway 17.
    4. Bull Point is owned by Bull Point, LLC, a South Carolina limited liability corporation, which also owns Plantation Island and Big Bull Island, the latter of which is located to the west on Huspah Creek and is separated from Bull Point by approximately 750 feet of tidal marsh. The Bull Point peninsula is surrounded by the tidal marshes and waters of Huspah Creek and its tributaries, classified as shellfish harvesting waters. Big Bull Island contains approximately ten acres of highland and 0.59 acres of freshwater wetlands. Plantation Island is located to the east of Bull Point on a tributary of Huspah Creek, and is separated from Bull Point by tidal marsh.
    5. Phase I of the development is located along the northeastern portion of the property. Bull Point proposes to build joint access driveways between lots 30 and 31, 33 and 34, 35 and 36, and a driveway to lot 32. The proposed driveways, outlined on pages 4 and 5 of the permit, will be twelve feet wide and will vary in length from 150 to 183 feet with 3:1 side slopes. These crossings will result in 0.15, 0.08, 0.09 and 0.12 acres of wetland impact, respectively.
    6. A six foot wide boardwalk, approximately 770 feet long, will connect Plantation Island with Bull Point. Plantation Island is 2.6 acres in size and contains no freshwater wetlands. A community dock with two ten by twenty' foot floats will be located on Plantation Island.
    7. Phase II is located on the southern tip of the peninsula. A community boat ramp and staging dock will be located on the open lot between lots 68 and 69 as shown on page eight of the permit. The staging dock with three ten by twenty' foot floats will help facilitate launching boats at the boat ramp.
    8. A final lot layout plan for Phase III has yet to be developed. A twenty-two foot wide vehicular bridge, approximately 750 feet long and five feet high, is proposed to connect Big Bull Island to Bull Point, as shown on page 10 of the permit.
    9. None of the community features will have fuel facilities. They will be used solely for private, recreational docks.
    10. The total acreage of freshwater wetlands on the mainland of Bull Point is 32.16 acres; however, the total area of wetlands to be impacted by the proposed development is only 0.49 acres. Mitigation for the freshwater wetland impact will be the natural preservation of all the remaining wetlands on Bull Point, totaling 31.67 acres.
    11. Petitioner is comprised of a group of individuals who live in northern Beaufort County west of Whale Branch. It considers everyone within Tax District 70 to be a potential member but, maintains no membership list, has no membership criteria, and is incapable of ascertaining at any given time who its members are.
    12. Petitioner was organized in 1994 as an organization to protect the environment and character of northern Beaufort County and to oppose the erection of a National Weather Service tower. At the time of its inception and thereafter, it has considered itself a standing committee of a South Carolina nonprofit corporation known as the Sheldon Community Enrichment Program, Inc. Sheldon was established to provide tutoring and enrichment programs for children and to provide aid to the elderly. Petitioner has operated under the by-laws of Sheldon since its formation and has held itself out as a standing committee of that corporation.
    13. The Bull Point peninsula is unique in that it is considerably higher in elevation than the surrounding areas of Beaufort County. The elevations of Bull Point range from approximately seven feet above mean sea level at the lowest to thirty feet above mean sea level at the highest, with the majority of the peninsula having an average elevation of greater than twenty feet.
    14. Bull Point is involved in the process of developing a portion of the peninsula into single-family residential lots. The development will be served by the typical infrastructure consisting of roads and storm water management structures. The total acreage in both phases is approximately 250 acres. Lot sizes in Phase II vary from 0.61 acres to 1.46 acres. In Phase I, the lots range in size from 1.33 acres to 5.23 acres. The lots which share the proposed driveway crossings vary in size from 1.45 acres to 2.36 acres.
    15. Bull Point is zoned rural agricultural which would allow for the construction of 1,200 single-family residential units if the owners chose to develop the property to its maximum density level. Beaufort County has given Bull Point the final subdivision approval to proceed with Phase I which will include the construction of homes and road and the storm water systems. The county has given preliminary approval to construct the infrastructure for Phase II of the property.
    16. Bull Point has sold some lots in Phase I and has lots in Phase I and Phase II under contract for sale.
    17. Although the waters of Huspah Creek and its tributaries are classified as shellfish harvesting waters, they have been closed to shellfish harvesting for a number of years because a high level of fecal coliform has been found in them. This fecal coliform is believed to be caused by agricultural runoff upstream of the Bull Point development.
    18. Bull Point proposes to use individual wells for water usage, and septic tank systems for sewage disposal, in both Phase I and Phase II.
    19. Pursuant to S.C. Code Regs. 61-57, DHEC has approved as the method for sewage and waste disposal in Phases I and II of Bull Point the installation of septic tanks. Four individual septic tank permits have been issued by DHEC. Petitioner challenges both the approval of the method for sewage disposal in Bull Point and the issuance of individual septic tank permits. The individual septic tank permit cases are separate proceedings pending before the Division.
    20. This proceeding began when Bull Point applied to the Corps and OCRM for the requisite permits and certifications to allow the construction of four driveways and one road crossing in wetland "J," a boat ramp and staging dock, a board walk to Plantation Island, a community dock to Plantation Island, and a bridge to Big Bull Island. Petitioner initially opposed all of the activities permitted and certified by OCRM and DHEC; however, at the hearing it acknowledged that it no longer challenged the permitting or certification of the boat ramp and staging dock, the community dock, or the boardwalk to Plantation Island, and offered no evidence that their construction would cause any environmental problems whatsoever.
    21. Bull Point proposes to construct a bridge connecting the Bull Point peninsula with Big Bull Island. The construction of a bridge with a height of five feet above mean sea level will insure that the marsh grass growing under the bridge will receive sufficient sunlight. No credible evidence was presented that the bridge will cause any environmental problems. An additional concern of Petitioner was that the bridge will impact the scenic vista of Huspah Creek and might be visible from the property of some of its members. Except for the testimony of several of its members, no evidence was presented to support this contention.
    22. As part of the permit and certification process, Bull Point was requested by OCRM to engage in wetlands master planning. This is a policy developed by OCRM applicable to large undeveloped acreage where development activities are proposed. It assists the agency in identifying all the wetland resources on a particular tract and in determining in advance whether any wetlands may be filled, which wetlands must be protected, and what mitigation, if any, is required if any wetland is permitted to be filled. Under wetlands master planning each individual isolated wetland of an acre or less can be filled where reasonable mitigation is provided.
    23. Under the permit, the total wetland fill for the four driveways totals 0.49 acres. These driveway crossings allow access to seven lots and have no significant environmental impact other than the loss of the wetlands directly under the footprint of the driveway. Although representatives of the Service and DNR testified that these driveways could result in habitat fragmentation, the vast majority of the creatures which live in the wetlands will not be impeded by the existence of the driveways at all-- the only exception being ground-burrowing organisms such as worms and snails.
    24. Pursuant to the wetlands master planning and the "conditions" for the wetland certification placed in the permit, Bull Point must preserve by restrictive covenants, in perpetuity, the remaining approximate 31 acres of wetlands.
    25. If residences are not constructed on the lower portion of the lots to be accessed by the proposed driveways, a feasible alternative to fill the wetlands to access these properties would be the construction of wooden boardwalks/walkways in accordance with OCRM regulations.
    26. The sewage treatment disposal plan for the 146 lots on Bull Point will be accomplished through the installation of and usage of individual septic tanks. However, each lot is required to obtain its separate individual septic tank permit from DHEC and the local health department.
    27. Bull Point obtained a 404 permit from the Corps for the same activities which were certified and permitted by OCRM and DHEC.
    28. Extensive soil samplings were taken at Bull Point by local Beaufort County health authorities. They were utilized in determining that individual well systems and individual septic tank systems were appropriate for Bull Point. Further, there is no community sewer available in the area of Huspah Creek and, it is unlikely that rapid growth will take place in the Bull Point area for a considerable length of time.
    29. DHEC soil borings demonstrated that the seasonal high water table, the controlling factor in the installation of septic tanks, will allow for individual septic tanks as a perfectly suitable and permissible form of sewage treatment disposal. State regulations require a minimum of six inches of separation between the drain field of a septic tank and the seasonal high water table.
    30. All the lots in Phases I and II meet the 50 foot setback requirement - the distance between the edge of the septic tank drain fields and the adjacent waters of Huspah Creek.
    31. However, as a result of the publicity concerning the use of septic tanks, Bull Point will impose additional restrictions on their use. These written restrictions will require a 75-foot setback on its water and marsh front lots. Also, they will require that septic tanks at residences having garbage disposals must be pumped out once every three years, and septic tanks at homes not having garbage disposals must be pumped out at least once every five years. Additionally, if a septic tank is found to be malfunctioning for any reason, it will be immediately repaired by the homeowners' association. The cost will be assessed to the owner of the property.
    32. Septic tanks are and have been the primary method of sewage treatment disposal in Beaufort County. There has only been one recorded incident where the use of septic tanks was directly attributable to water quality degradation. In that case, an investigation by DHEC revealed that the septic tanks which were responsible had been installed prior to the promulgation of regulations governing septic tanks or had been placed within the seasonal high water table.
    33. None of the 146 lots in Phase I and Phase II of Bull Point are within FEMA flood zones. Unelevated residences could be built on these lots without the requirement of flood insurance. However, those portions of the lots bordering wetland "J" which adjoin the tidal marsh on their east side are within the FEMA flood zone.

CONCLUSIONS OF LAW

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

    1. S.C. Code Ann. 1-23-600(B) (Supp. 1995) authorizes the South Carolina Administrative Law Judge Division to hear contested cases, as defined in S.C. Code Ann. 1-23-310 (Supp. 1995).
    2. S.C. Code Ann. 48-39-150 (Supp. 1995) authorizes the Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code, as amended.
    3. OCRM is the state agency charged with implementing the State of South Carolina's coastal zone policies. S.C. Code Ann. 48-39-30 (Supp. 1995) sets out the policies governing the management, development and protection of the coastal zone areas. Further, S.C. Code Ann. 48-39-50 (Supp. 1995) provides the authority for DHEC to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code.
    4. S.C. Code Regs. 30-6(B) (Supp. 1995) provides that any person adversely affected by an OCRM initial permitting application decision has the right to request a contested case hearing before an Administrative Law Judge.
    5. The Department is delineated as a "department" within the executive branch of state government in the state of South Carolina. S.C. Code Ann.  1-30-10(A)(Supp. 1995). OCRM is the subdivision within DHEC charged with implementing the state's coastal zone policies, which includes the filling in of wetlands, mitigation policies, together with the issuing of permits for docks, piers, and causeways.
    6. A "contested case" is defined as a "proceeding, including but not restricted to rate making, price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing." S.C. Code Ann. 1-23-310(2) (Supp. 1995).
    7. "Party" is defined as a "person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." S.C. Code Ann. 1-23-310 (4) (Supp. 1995).
    8. Prior to the passage of the Restructuring Act (Act 181) in 1993 and the creation of the Division (effective February 1, 1994), contested case proceedings in which the Department was a " party" were governed by procedural rules promulgated by the Department. See S.C. Code Reg. 61-72 (Supp. 1995). Contested case proceedings in which OCRM, formerly Coastal Council, was a "party" were governed by procedural rules promulgated by Coastal Council. See S. C. Code Reg. 30-6 (Supp. 1995).
    9. S.C. Code Ann. 1-23-650 (Supp. 1995) provides that rules governing practice and procedure before the Division shall be approved by the Division; however, they must be consistent with the rules of procedure governing civil actions in Court of Common Pleas. It further provides that these rules shall be subject to review by the legislature as are rules of procedure promulgated by the Supreme Court under Article V of the Constitution. Pursuant thereto, the Division has adopted its own rules of procedure which govern all contested case proceedings heard by its Administrative Law Judges. Accordingly, since the passage of the Restructuring Act in 1993, the sole rules governing a contested case heard by an Administrative Law Judge of the Division, notwithstanding which agency or subdivision may be a party thereto, are those approved by the Division and promulgated by the General Assembly.
    10. S.C. Code Ann. 1-23-350 (1986) requires that a final decision in a contested case shall be in writing and shall include findings of fact and conclusions of law.
    11. The decision of an Administrative Law Judge who conducts and hears a contested case is a final decision as defined in the Administrative Procedures Act. See S.C. Code Ann. 1-23-610 (Supp. 1995).
    12. S.C. Code Ann. 48-39-150(A) (Supp. 1995) and S.C. Code Regs. 30-11 (Supp. 1995) set forth the guidelines to be used in assessing the impact of a project in a critical area. Included in these considerations is the extent to which the proposed use could affect the value and enjoyment of adjacent property owners, the extent to which the proposed use would affect the production of marine life and wildlife, the extent to which the development could affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites, and the extent of any adverse environmental impact which cannot be avoided without reasonable safeguards. Regs. 30-11(B).
    13. S.C. Code Regs. 30-12(A) (Supp. 1995) sets forth the specific project standards for the construction of docks and piers for tidelands and coastal waters.
    14. S.C. Code Regs. 30-12(N) (Supp. 1995) sets forth the requirements for the construction of bridges to gain access to small islands.
    15. OCRM is the agency in charge of controlling and restricting the filling of wetlands. Carter v. South Carolina Coastal Council, 281 S. C. 201, 314 S. E.2d 327 (1984).
    16. S.C. Code Regs. 61-56 (1992) sets forth provisions governing individual sewage treatment and disposal systems. S.C. Code Regs. 61-57 (1992) sets forth provisions applicable to the method and type of water supply and sewage treatment/disposal systems which may be approved by DHEC during the developmental stage of a subdivision. S.C. Code Regs. 61-101 (Supp. 1995) establishes procedures and policies for implementing state water quality certification requirements under 401 of the Clean Water Act.
    17. Prior to the hearing, Bull Point raised the question of the legal capacity of Petitioner to contest the grant of the permits and certifications at issue. Further, after Petitioner presented its case, Bull Point again moved to dismiss the case on the ground that Petitioner lacked legal capacity pursuant to ALJD Rule 52 and Rule 17 of the South Carolina Rules of Civil Procedure (SCRCP) to maintain the action. This court reserved ruling on that motion and requested additional briefing.
    The evidence in this case, both documentary and testimonial, strongly indicates that Petitioner functioned as a "standing committee" of Sheldon, a nonprofit South Carolina corporation. As such, Petitioner lacks the legal capacity to maintain this action. The activities of South Carolina nonprofit corporations are regulated by S.C. Code Ann.  33-31-101 et seq. (Supp. 1995). Section 33-31-302 provides, in pertinent part:
      "Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all the things necessary or convenient to carry out its affairs, including, without limitation, the power:
        (1) to sue and be sued, complain, and defend in its corporate name; ..." (emphasis added)
    18. Petitioner argues, notwithstanding the testimony of its officers and documentary evidence to the contrary, that it is not a standing committee of Sheldon, but is rather an unincorporated association. It further argues that an unincorporated association has the capacity to maintain this action. This court is not persuaded. While South Carolina has no statutes or case law defining what constitutes an unincorporated association, case law from other jurisdictions defines the basic requirements which must be exhibited. One of the requirements is that there must be a defined membership based upon some type of specific criteria for membership. Motta v. Samuel Weiser, Inc., 598 F.Supp. 941 (D. Me. 1984), aff'd 768 F.2d 481 (1st Cir. 1985); Johnson v. South Blue Hill Cemetery Association, 221 A.2d 280 (Me. 1966). Here, it is clear that Petitioner, by purporting to represent everyone in Tax District 70 and having no idea at any given moment who its members are, does not meet this criterion. Moreover, under South Carolina law, members of an unincorporated association are jointly and severally liable for the acts of the association, e.g., S. C. Code Ann. 15-5-160 (1976); Graham v. Lloyd's of London, 296 S.C. 249, 371 S. E.2d 803 (Ct. App. 1988); Elliott v. Greer Presbyterian Church, 181 S.C. 84, 181 S.E.2d 651 (1936). Because the members of an unincorporated association are jointly and severally liable under South Carolina law, it is necessary to be able to determine who the members of an unincorporated association are. This is impossible as to Petitioner.
    Assuming, arguendo, that Petitioner is an unincorporated association, the inquiry insofar as its legal capacity to maintain this action does not end. For an unincorporated association to have standing in a representative capacity Petitioner must either have a list of members, each of whom has standing, or a clearly defined purpose and a membership which can be generally defined and when so defined would have individual standing. Since Bull Point is in Tax District 70, it is manifest that the managing partner of Bull Point, who resides on Bull Point, has an interest adverse to Petitioner, and it can be reasonably assumed that other persons who reside in Tax District 70 are not interested in pursuing this action. Accordingly, even if the Petitioner were an unincorporated association, it would not have representational standing to prosecute this action. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977); Landfall Group Against Hayde Transferability, an unincorporated association v. Landfall Club, Inc., 450 S.E.2d 513 (N.C. App. 1994). Regardless of the analysis used to determine what Petitioner is, or is not, it is clear that Petitioner, as a subcommittee of Sheldon, does not have the legal capacity to maintain the instant action. The only real party in interest having capacity under SCRCP Rule 17(B) is the Sheldon Community Enrichment Program, Inc. Sheldon did not contest the grant of the permit. Because the time to file an action contesting the grant of the permit has long since run, and Petitioner did not have legal capacity in the first instance to file the action, the case is dismissed for lack of jurisdiction. See Brock v. Bennett, 313 S.C. 513, 443 S.E.2d 409 (Ct. App. 1994); Glenn v. DuPont, 254 S.C. 128, 174 S.E.2d 155 (1970).
    19. However, because the issue of legal capacity to maintain this type of action appears to be one of first impression, this court determines it is advisable to consider the merits of the case.
      A. At the outset of the hearing, Petitioner legally abandoned any challenge to the boat ramp and staging dock, the boardwalk and the community dock, and presented no evidence contrary to their permitting. Without presentation of any evidence, Petitioner has not met its burden and those permitting provisions remain in force.
      B. This court is persuaded and concludes that OCRM appropriately and correctly applied all of the criteria specified in Regs. 30-12(N) in issuing the bridge permit. There is no credible evidence that the bridge will cause environmental problems. As to the contention that the bridge to Big Bull Island will be disruptive of Petitioner's scenic view of Huspah Creek and will be unsightly, no remedy is possible because in South Carolina there is no right to an unobstructed view of the marsh. Hill v. The Beach Co., et al., 279 S.C. 313, 306 S.E.2d 604 (1983).
      C. Concerning the 0.49 acres of wetland fill certified by the OCRM for the four driveways, it is manifest that this activity is in full compliance with all of OCRM policies, regulations and procedures governing the fill of freshwater wetlands. In fact, the 0.49 acres of fill is significantly less than that allowed under OCRM policy of wetland master planning which was applied to this development. The four driveway crossings allow access to seven lots and have no significant environmental impact other than the loss of the wetlands directly below the footprint of the driveway. Although representatives of the Service and DNR testified that the four driveways could result in habitat fragmentation, the vast majority of the creatures which live in the wetlands will not be impeded by the existence of the driveways at all---the only exception being ground burrowing organisms such as worms and snails.

    Pursuant to the wetlands master planning and the conditions of the wetland certification issued by OCRM, Bull Point will preserve by restrictive covenants, in perpetuity, as mitigation for the 0.49 acres of wetlands impact, the remaining approximately 31 acres of freshwater wetlands. This is appropriate mitigation for the fill of less than one half an acre of wetlands and is consistent with OCRM policies and regulations concerning the fill of isolated freshwater wetlands.
    20. Notwithstanding the above analysis in Conclusion of Law 19.C., this Court is concerned about any filling of this wetland pending approval by local Beaufort County authorities for the construction of residences on that portion of the lots between it and the marsh/waters of Huspah Creek. If permits for the construction of houses are not issued for these portions, then it would be appropriate for the permit to provide only for the construction of wooden walkways or bridges across the freshwater wetland instead of fill. Further, such order authorizing any additional fill in wetland "J" must be predicated upon the filing of written restrictions by Bull Point with the Beaufort County Clerk of Court or Register of Mesne Conveyance and OCRM, containing the following:
      A. A provision that none of the wetlands at Bull Point, except wetland "J" may have any fill placed therein by Bull Point, its successors and assigns.
      B. A provision requiring a minimum 75 foot setback from the critical area on each lot for the installation of any septic tank sewage system.
      C. A provision requiring a mandatory pumpout once every three years of a septic tank on any lot where a residence has a garbage disposal system. Provided however, if there is no garbage disposal system at a residence, then the mandatory pumpout frequency is a minimum of once every five years.
    21. OCRM properly relied upon the report and analysis of the Water Quality Certification and Wetlands Management Division of the Bureau of Environment Health of DHEC in considering Bull Point's permitting requests. The Water Quality Division relies upon the onsite Wastewater Management Division of the Bureau of Environmental Health for the administration of the septic tank system regulations and the method of waste disposal systems in a subdivision. Likewise, OCRM relies on the wastewater division concerning the adequacy of sewage treatment disposal on upland tracts of property outside of its direct permitting authority.
    OCRM's reliance, like that of the Water Quality Division of DHEC, is predicated upon three factors. First, neither the Water Quality Division nor OCRM have statutory or regulatory authority to permit or to control sewage treatment disposal systems. This authority has been granted to the Bureau of Environmental Health of DHEC by the General Assembly. Second, there are approximately 3,500 septic tank permits issued in the eight coastal counties of South Carolina every year. It would be physically impossible for the staff of OCRM, or that of the Water Quality Division of DHEC, to review the suitability of a particular upland site for a septic tank as part of their certification or permitting responsibilities. Third, the septic tank regulations of DHEC are designed to insure that state water quality standards in adjacent water bodies must be maintained. Accordingly, when the Bureau of Environmental Health determines that a particular piece of property is suitable for the installation of individual septic tanks under Regs. 61-57 and thereafter issues to individual property owners septic tank permits pursuant to Regs.61-56, the overall cumulative impacts have been taken into consideration.
    The responsibility of OCRM is to coordinate its permitting process with the local health department, other DHEC subdivisions, and other implementing agencies to ensure that water quality standards and waste disposal standards are adequate to protect coastal resources. This was done in this case. Representatives of OCRM met with representatives from the Water Quality Division and the Waste Management Division, the Service, DNR, and a representative from the Beaufort County health department, prior to issuing the permit. OCRM does not have the staff capability to review individual septic tank permits nor has the responsibility to determine which water supply source or sewage disposal treatment plan should be approved for a subdivision. This is the responsibility of the Water Quality Division and the Wastewater Management Division of DHEC. To require OCRM employees to perform the same functions that other employees of the Department perform as a part of their normal duties would be duplicative and wasteful of state resources. In this instance, a water quality certification was issued as was subdivision approval for the method of waste disposal, i.e, individual septic tank systems.
    OCRM gave proper consideration to the potential cumulative impacts of the use of 146 individual septic tanks and their systems on the surrounding waters of Huspah Creek.
    22. The Water Quality Certification and Wetlands Program Division of DHEC issued a 401 Water Quality Certification for the Bull Point project based upon their findings that the permitted activities authorized by OCRM did not violate state water quality standards. See S.C. Code Regs. 61-68, 61-69 and 61-101. This decision was based upon Bull Point's agreement and willingness to minimize the impacts and to install culverts to maintain water flow and circulation.
    23. The evidence demonstrates that the soil conditions at Bull Point are suitable for the installation of state approved septic tanks pursuant to the provisions of Regs. 61-57 and R. 61-56, which are the state regulations governing the use and installation of septic tanks as a means of sewage treatment disposal. Built into these regulations are requirements that septic tank systems maintain a minimum separation from the seasonal high water tables in the ground, that they be set back at least fifty feet from environmentally sensitive waters, and that they be installed, once an individual permit is issued, under the supervision of DHEC's Bureau of Environmental Health. The regulations governing the location and installation of septic tanks are in themselves designed to prevent septic tanks from contributing to the degradation of the state's classified waters. These regulations have the force of law. Norton v. Opening Break of Aiken, Inc., 313 S.C. 508, 443 S.E.2d 406 (Ct. App. 1994).
    The evidence in this case demonstrates that South Carolina has experienced very few problems with state approved septic tanks and has experienced only minor septic tank failure statewide. Its success rate in the use of septic tanks as individual sewage treatment disposal systems is better than that of its sister states. Surveys performed by the State of South Carolina demonstrate that state approved septic tank systems play little part in state water quality problems.
    24. The usage and installation of individual septic tank systems within Bull Point is an approved waste disposal system for subdivisions under the provisions in Regs. 61-56. Local health department officials, who are employees of DHEC, together with senior employees of the onsite Wastewater Management Division of DHEC, considered a number of factors in approving the septic tank system for Bull Point. They considered topography, setbacks of the systems from the critical line and from environmentally sensitive waters, and the location of the seasonal high water tables. Actual soil sampling was conducted on a number of visits to the property. Through this very thorough analysis, final subdivision approval was granted for septic tank systems installations in Bull Point, subject to individual septic tank approval upon application filed by each lot owner. The analysis demonstrated that different types of systems would be required for usage throughout the development due to the variance in depth of the seasonal high water tables.
    25. Based upon all the evidence and all applicable law and regulations, I conclude that the permit should be granted, as issued by OCRM, subject to the filing of the restrictive covenants as enumerated in Conclusion of Law #20 and the filing of a final development plan with OCRM and the Register of Mesne Conveyance for Beaufort County; provided further, that if no residential construction permits are obtained, the further filling of wetland "J" will not be allowed, and that driveway presently in wetland "J" must be removed. OCRM carefully studied the proposed development, coordinated its study with representatives of both the water quality section and onsite wastewater section of DHEC, representatives of DNR, the Service and the local health department. All impacts on wildlife, marine life, water in adjoining waters, and shellfish in adjoining waters were thoroughly studied and evaluated. Since there is no public water service nor waste disposal system in the area, and no construction of such appears evident in the foreseeable future, DHEC appropriately granted approval for individual septic tank installations in the subdivision. There was no credible evidence presented that the cumulative effect of their installation would affect the surrounding waters. Also, there was no credible evidence that the construction of the bridge to Big Bull Island nor the filling of the driveways with soil would be environmentally damaging or affect the water quality of Huspah Creek and its adjacent tributaries.
    26. Any issues raised in the proceedings or hearing of this case, but not addressed in this Order, are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order pursuant to S. C. Code Ann. 1-23-600 (A) and (D) (Supp 1995). ALJD Rule 29 (C).

ORDER

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

ORDERED that the permits and certifications for the construction of a boat ramp and staging dock, a community dock, a boardwalk, a bridge to Big Bull Island, and the fill of 0.49 acres of freshwater wetlands are granted as previously permitted and certified, subject to compliance by Bull Point with those conditions as enumerated in Conclusion of Law #20 and Conclusion of Law #25 and submission of the dock master plan, walkway and bridge plans and the development master plan.

AND IT IS SO ORDERED.

________________________
Marvin F. Kittrell
Chief Judge

Columbia, South Carolina
October 28, 1996


 

 

 

 

Copyright © 2025 South Carolina Administrative Law Court