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 |