SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This contested case arises from a decision of the Respondent, South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (“OCRM”) to deny Petitioner, Jerry H. Risher’s permit application seeking authorization to construct a vehicular bridge to access Petitioner’s property located at 283 Tarpon Blvd. on Fripp Island, South Carolina.

BACKGROUND

Petitioner is the record owner of real property identified as Lot 1 Block B, Subdivision 13, Fripp Island and Beaufort County PID # R400 040 000 0705 000 (“Petitioner’s lot”) (Pet. Ex. 3). Petitioner’s lot consists of approximately 0.269 acres of high ground land partially surrounded by wetlands which are above the mean high water mark (“MHW”) but are occasionally flooded by tidal waters of Old House Creek located to the west of Petitioner’s lot. Petitioner’s lot connects to and abuts a paved, non-vehicular bike path that is maintained by the Fripp Island Property Owners Association. (Pet. Ex. 9, 19, 4e, State’s Ex. 1)

Petitioner, through his agent, O’Quinn Marine Construction, Inc., submitted a permit application for a critical area permit to construct a 12’ wide by 85’ long vehicular bridge to access Petitioner’s lot from Tarpon Blvd., identified as OCRM-06-314-B. This application was received by OCRM on Sept. 22, 2006. (SCDHEC Ex. 11) On March 31, 2008, OCRM denied the permit application. (SCDHEC Ex. 3) The basis for denial of the permit application was OCRM’s conclusion that Petitioner’s lot was a “coastal island” as defined by S. C. Code Reg. 30-1(D)(11) and, therefore, any request to access Petitioner’s lot triggered the requirements of S.C. Code Ann. Regs.30-12(N), entitled “Access to Coastal Islands.” In accordance with R. 30-12(N)(2)(c), “[t]he Department will not consider applications for bridge access to islands less than two acres in size.” Consequently, Petitioner’s lot does not meet the minimum requirements necessary to be eligible for a bridge permit.[1]

Petitioner timely requested a Final Review Conference before the S.C. Board of Health and Environmental Control on April 10, 2008. On April 17, 2008, the South Carolina Department of Health and Environmental Control Board decided not to conduct a Final Review Conference pursuant to S.C. Code of Laws §44-1-60(F). On May 7, 2008, Petitioner timely filed a Request for Contested Case Hearing.

The State of South Carolina, through the S. C. Attorney General’s Office, filed a Motion to Intervene on the grounds that the State believed that the Petitioner’s lot was a marsh island and the State has presumptive title to all islands in the marsh. This Motion was granted.[2] The South Carolina Coastal Conservation League also sought intervention based on the assertion that members of the League reside on Fripp Island and utilize the bike path and enjoy the tidal creeks and marsh surrounding Petitioner’s lot. This motion was also granted. A hearing was held before me on November 19-20, 2008, at the Administrative Law Court in Columbia, South Carolina. For the reasons set forth below, I find that Petitioner is not subject to regulation under S.C. Code Ann. Regs.30-12(N) and therefore is entitled to construct a vehicular bridge to access the 0.269 acre upland portion of his property from Tarpon Blvd. as proposed.

FINDINGS OF FACT

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

1.                  Fripp Island is a sea island located in Beaufort County, South Carolina. Fripp Island is bounded to the west by the waters of Old House Creek, to the North by the waters of Fripp Inlet, and to the East and South by the waters of the Atlantic Ocean. Fripp Island is connected to Hunting Island to the North by the public roadway and the Fripp Island Bridge. Once on Fripp Island having crossed the Fripp Island Bridge, Tarpon Blvd. traverses the Island from north to south and extends from the Fripp Island Bridge to the southern tip of Fripp Island. (P. Ex. 20)

2.                  Petitioner Jerry H. Risher owns all that piece and parcel of land identified as Lot 1 Block B, Subdivision 13 and Beaufort County PID # R400 040 000 0705 000 and located at 283 Tarpon Blvd. on Fripp Island, South Carolina. (P. Ex. 4(a)-(e), 16)

3.                  Petitioner’s lot was laid out and identified as a parcel on the Fripp Island Resort original development plan and is located on the western side of Tarpon Blvd. (P. Ex. 20) Petitioner’s lot overlooks the marshes and waters of Old House Creek.

4.                  Petitioner’s lot totaling 0.475 acres, consists of 0.269 acres of uplands and approximately 0.206 acres of wetlands. (P. Ex. 17) Petitioner’s 0.269 acres of high ground is abutted on three sides by wetlands also located on the Petitioner’s lot.

5.                  The fourth side of the Petitioner’s 0.269 acres of high ground is located adjacent to and abuts the high ground, paved, non-vehicular bike path. (P. Ex. 1, 16, 20) The high ground of the bike path abuts the full length of the Petitioner’s lot on the south property boundary and runs generally east to west.

6.                  OCRM requires a permit applicant to provide a survey of the applicant’s property, depicting an OCRM approved “critical line.”[3] Petitioner, through his agent O’Quinn Marine, submitted a survey to OCRM for approval of a critical line, prepared by Petitioner’s surveyor, David S. Youmans. (P. Ex. 17, 18, 19) OCRM reviewed and approved the location of the critical line. (Tr. Day 1 p. 60-61, p. 81, l. 1-24)

7.                  The coast of South Carolina experiences semi-diurnal tides, or two high tides and two low tides in each 24-hour day. (Tr. Day 1, p. 49, l. 21 - p. 50, l. 11) Of these high tides, one high tide is generally higher than the other. (Tr. Day 1, p. 50, l. 1-5). The “mean high water mark” (“MHW”) is defined as the 19-year average height of all the high tides at a given location over the 19 year tidal datum cycle. (Tr. Day 1, p. 43, l. 12-20; Tr. p. 50, l. 25-p. 51, l. 3). MHW is also the elevation at a location which marks the landward extent to which the State of South Carolina holds presumptive title to lands to be held in the public trust (Tr. Day 1, p.18-19) except that the State claims to hold presumptive title to marsh islands above mean high water if they are covered by the rule that “[o]wnership of islands situate within marshland follows ownership of the marshland.” Coburg, Inc. v. Lesser, 309 S.C. 252, 422 S.E. 2d 96, 97 (1992)(Coburg I); see also Coburg, Inc. v. Lesser 318 S.C. 510, 458 S.E. 2d 547 (1995)(Coburg II). The MHW elevation at the Petitioner’s lot is 2.65 feet. (Tr. Day 1, p. 51, l. 11-15).

8.                  The “mean higher high water mark” (“MHHW”) is the 19-year average of the higher of the two daily high tides at a given location. (Tr. Day 1 p. 50, l. 12-19). The MHHW at the Petitioner’s lot is 3.03 feet. (Tr. Day 1 p. 51, l. 11-15)

9.                  The Petitioner’s experts, Lorick Fanning and David S. Youmans, and the State’s expert, Sidney C. Miller, confirmed all portions of Petitioner’s lot are above the MHW and also above the MHHW. (P. Ex. 19, DHEC Ex. 7, State’s Ex. 1; Tr. Day 1 pp. 36-40, 80-81,-99, 206-207, p. 215, l. 3-12, p. 220, l. 1-6) Respondent did not dispute these facts.

10.              In particular, the wetland areas of Petitioner’s lot, which surround three sides of the high ground 0.269 acres, are located above the MHW and the MHHW. Petitioner’s expert David Youmans testified that all elevations surveyed in the wetland areas of the Petitioner’s lot, and in particular at the location of the proposed bridge, were above the MHW and MHHW. (Tr. Day 1 p. 76-77) Therefore, the land between the Petitioner’s 0.269 acres of high ground and Tarpon Blvd. is above the MHW and MHHW. (Tr. Day 1 p. 99, l. 15-22)

11.              Because of these elevations tidal waters encroach infrequently upon the wetlands areas of the Petitioner’s lot. Mr. Youmans testified that in his expert opinion the tide would reach the wetland areas located between the high ground on the Petitioner’s lot and Tarpon Blvd. once or possibly twice a month on a spring tide. (Tr. Day 1 p. 100, l. 22- p. 101, l. 2)

12.              Based on this Court’s own inspection of the Petitioner’s lot, it is possible to walk unassisted and without crossing any standing water from Tarpon Blvd. to the 0.269 acres of high ground at the location of the bridge proposed in the Permit Application.[4]

13.              While the wetland areas of Petitioner’s lot located between the 0.269 acres and Tarpon Blvd. are subject to occasional encroachment of the waters from Old House Creek on the event of an extremely high tide which exceeds the MHW and the MHHW, these wetlands do not receive tidal action on the regular or periodic tidal cycle. (Tr. Day 1 p. 100, l. 22- p. 101, l. 2)

14.              Portions of the wetland areas on the Petitioner’s lot support some varieties of salt water tolerant vegetation like spartina alternaflora. However, where present, the spartina is stressed, or dwarfed, due to less than ideal growing conditions - the lack of regular saline water inundation. (Tr. Day 1 p. 282-284) Other vegetation present included Sea Myrtle and Sea Ox-eye which are considered to be high marsh plants and Coastal Bermuda grass, an upland and/or freshwater plant. (Tr. Day 1 p. 286) Coastal Bermuda grass is prolific in the wetland area between the 0.269 acres of high ground and Tarpon Blvd. (Tr. Day 1 p. 316, l. 12-17) While salt tolerant vegetation is present, the evidence presented, which was confirmed by the Court’s own observations, provides that the salt tolerant vegetation is not the dominant or prevalent vegetation in this area. Instead, Coastal Bermuda grass, described as a “pioneer plant” on Petitioner’s lot by Petitioner’s expert, is the dominant vegetation. (Tr. Day 1 p. 286-287)

15.              Petitioner’s expert, Lorick Fanning, testified that the primary hydrology of the wetland area between Tarpon Blvd. and the 0.269 acre high ground portion of the Petitioner’s lot is driven by stormwater run-off and groundwater. Mr. Fanning’s opinion is based on site elevations as well as observation of the general topography, vegetation, and the soils in the wetland areas. (Tr. p. Day 1 p. 320, l. 14- p. 321, l. 24)

16.              A coastal island is, by definition, an area of upland separated from other high ground areas by coastal tidelands or waters. See, S. C. Code Reg. 30-1(D)(11). However, the definition of tidelands specifically excludes “wetland areas that are not an integral part of an estuarine system.” See, S. C. Code Reg. 30-1(D)(50).

17.              Fanning testified regarding whether the area where Petitioner proposes to build a bridge is integral to the surrounding estuarine system. According to Fanning, the area between the upland portion of Petitioner’s lot and Tarpon Blvd. is not an integral part of the estuarine system because it has a distinctively different hydrology than areas below MHW – the primary hydrology being freshwater as evidenced by the dwarf spartina and the prevalence of Coastal Bermuda grass. Coastal Bermuda grass is primarily present in upland and freshwater wetland areas. (Tr. Day 2 p. 93-96)

18.              Fanning testified, as a licensed professional surveyor, that MHW is a natural monument around Fripp Island, and all lands above mean high water are part of Fripp Island. Consequently, all of Petitioner’s lot is part of Fripp Island. (Tr. Day 1, p. 213-215) The State Geodetic Surveyor, Sidney C. Miller, opined that “[t]he Risher parcel is connected to Fripp Island by land that is above mean high water. (emphasis added)” (State’s Ex. 1).

19.              OCRM’s conclusion that Petitioner’s lot is a coastal island was based on staff member Curtis Joyner’s single site visit of 10 minutes or less, during which time Mr. Joyner inspected Petitioner’s lot from Tarpon Blvd. (Tr. Day 2, p. 134, l. 1-7) OCRM’s conclusion that Petitioner’s lot is a coastal island was further based on staff member Steve Brook’s single site visit of approximately 30 minutes. (Tr. Day 2, p. 66-68) Aside from the visual inspection of Brooks and Joyner, no other analysis was performed by OCRM staff.

20.              Brooks testified that the wetlands on Petitioner’s lot were integral to the estuarine system, but acknowledged that his conclusion was based solely on visual observation, and that he performed no testing, sampling, data analysis, or elevation measurements. (Tr. Day 2, p. 82 l. 12-17) Joyner testified that the wetlands on Petitioner’s lot were integral to the estuarine system because they were physically connected to Old House Creek

21.              Petitioner’s surveyor, David Youmans, testified that he has visited Petitioner’s property on at least two or three occasions to prepare plats and surveys of the property. (Tr. Day 1, p. 89 l. 7-11) Petitioner’s expert Lorick Fanning testified that he has inspected the Petitioner’s lot five times. He determined elevations, looked at the soils with a licensed soil classifier, studied the vegetation, and considered the hydrology. (Tr. Day 1 p. 206-218)

22.              In accord with the regulatory definition of “tidelands,” OCRM has the authority to designate its approximate geographic extent “until such time as the exact geographic extent of this definition can be scientifically determined.” See, S. C. Code Reg. 30-1(D)(50). I find that the critical line that was verified by OCRM upon review of David Youmans’ plat as referenced in Finding # 7 above is an approximate designation which was later refined and refuted by the scientific analysis and determinations of Fanning described herein. I further find that while the visual observations of OCRM’s staff, which included observations of a tidal connection and of the existence of marsh vegetation, are a valid basis for approximating the location of tidelands critical area, the analysis performed by Petitioner’s expert was more extensive.

23.              OCRM introduced photographs of Petitioner’s lot which appear to indicate the upland portion of Petitioner’s lot surrounded by water. Identical photographs were also introduced by Intervenor. However, the undisputed testimony is that these photographs reflect conditions on two separate dates – in November, 2007 and in April, 2008. (Tr. Day 2 p. 167) I find that these photographs represent Petitioner’s lot under extreme conditions, and are not reflective of the typical condition of Petitioner’s lot. This finding is further supported by my observations on site.

24.              Intervenor also presented testimony of one of its members and a resident of Fripp Island, Pete Richards. Mr. Richards is primarily concerned over the loss of wildlife habitat associated with development of the upland portion of Petitioner’s lot. (Tr. Day 2 p. 154 l. 8-14) Richards provided anecdotal testimony regarding his visual observations of Petitioner’s lot. This Court recognizes that as a neighboring property owner and frequent user of the bike path, Mr. Richards has familiarity with Petitioner’s lot. Richards testified that he believed that there could be tidal water encroaching upon the wetland areas of Petitioner’s lot as much as 60 to 80 days a year. (Tr. Day 2 p. 178-179) His testimony was not based on his actual observation of Petitioner’s lot for 60 to 80 days out of a year, but rather on conjecture based on his observation of the impacts of the tide on a nature trail that is near his residence. (Tr. Day 2 p. 175-176) He testified that on occasions when the tide was rising over and around the nature trail, he would observe “water at varying stages between Tarpon Boulevard and the .26 acres.” (Tr. Day 2 p. 176) I find that Richards’ testimony is speculative and incomplete. While I find him to be a credible witness, it is difficult to evaluate his testimony without more information regarding the date, the elevation of high tide, and other weather conditions that might have effected conditions on Petitioner’s lot. As Petitioner’s surveyor noted, the conditions on Petitioner’s lot are impacted by weather related events, such as a northeast wind. (Tr. Day 1 p. 102 l. 22-25)

CONCLUSIONS OF LAW

1.                  The South Carolina Administrative Law Court has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §1-23-310 et seq. (Supp. 2007). and §1-23-500 et seq. (Supp. 2007). Furthermore, S.C. Code Ann. §48-39-150 specifically authorizes the Administrative Law Court to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

2.                  The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat’l. Health Corp. v. S.C. Department of Health & Env. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3.                  "It is generally recognized that the trier of fact, who has the opportunity to observe the witnesses and listen to their testimony in person, is in the best position to determine issues of witness credibility." Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 358 (Ct. App. 1999). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See, S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992).

4.                  With regard to expert testimony, it is generally recognized that "expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence" and that "the triers of the facts cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding contrary to the opinion." 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert's testimony the weight he or she determines it deserves, Florence County Dep't of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992),  and may accept the testimony of one expert over that of another, S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). In weighing such expert testimony, the general principles for determining whether evidence warrants a finding remain applicable; accordingly, "an expert's opinion which is based on guess, surmise, or conjecture has little evidentiary value, and expert opinion evidence lacks probative force where the conclusions are contingent, speculative, or merely possible." 32A C.J.S. Evidence § 730, at 87 (1996).

5.                  “When property is bounded by a tidal navigable waterway ‘the boundary line is the high water mark . . .’”, Query v. Burgess, 37 S.C. 407, 410-411 (Ct. App. 2006). Because Fripp Island is bound on all sides by tidal navigable waterways, the boundaries of Fripp Island are governed by the location of the MHW of these waterways.

6.                  The definition of “coastal island” specifically exempts Fripp Island from regulation under R.30-12(N). R. 30-1(D)(11) states “[t]he following islands shall not be deemed a coastal island subject to this section due to their large size and developed nature: . . . Fripp Island . . . “ Because the Petitioner’s lot is part of Fripp Island, since it is located in total above the MHW line of Fripp Island and MHHW line, and is connected to Fripp Island by lands above the MHW line and MHHW line, an analysis of whether the 0.269 acres located on the Petitioner’s lot is a “coastal island” subject to R.30-12(N) is not necessary. R.30-12(N) is not applicable to the Petitioner’s lot and therefore review of the Petitioner’s permit application is not subject to the requirements set forth therein.

7.                  Even if this Court were to delve into an analysis of the Petitioner’s lot under R.30-12(N) the Petitioner’s lot is specifically exempted. R.30-12(N)(1)(d) exempts those areas defined as “upland areas” from the requirements of by R.30-12(N). R.30-12(N)(1)(d) states:

The requirements of R.30-12-(N) apply only to islands for which a bridge or dock permit is issued, and are not intended to apply to upland areas or to otherwise modify, alter, conflict create precedent or otherwise impact existing regulations and law. (emphasis added)

Regulation 30-12(N)(2)(d)(ii)(f)(i) defines an “upland” as

(a) the naturally occurring mainland, and

(b) Waites Island in Horry County; Pawleys Island in Georgetown County; Isle of Palms, Sullivans Island, Folly Island, Kiawah Island, Seabrook Island, Edisto Island, Johns Island, James Island, Woodville Island, Slann Island and Wadmalaw Island in Charleston County; Daniel Island in Berkeley County; Edisto Beach in Colleton County; Harbor Island, Hunting Island, Fripp Island, Hilton Head Island, St. Helena Island, Port Royal Island, Ladies Island, Spring Island and Parris Island in Beaufort County.(emphasis added)

Petitioner’s lot is connected to main body of Fripp Island by land above mean high water.

8.                  Notwithstanding the conclusions above, the 0.269 acre portion of the Petitioner’s lot is also exempt from regulation by R.30-12(N) because neither the Property as a whole nor the 0.269 acres of high ground is a “Coastal Island” as defined by criterion set forth in R.30-1(D)(11). “Coastal Island” is defined, in part, as:

an area of high ground above the critical area delineation that is separated from other high ground areas by coastal tidelands or waters. An island connected to the mainland or other island only by a causeway is also considered a coastal island. . . (emphasis added)

Pursuant to this definition, the high ground 0.269 acres on the Petitioner’s lot must be separated from other high ground areas by coastal tidelands or waters. “Coastal Waters” is defined as “the navigable waters of the United States subject to the ebb and flood of the tide and which are saline waters, shoreward to their mean high water mark.” There was no evidence that Petitioner’s lot included coastal waters. Moreover, the area between the high ground 0.269 acres and Tarpon Blvd. at the location of the proposed bridge also fails to meet the definition of “coastal tidelands.” 23A S.C. Code Ann. Reg. 30-1(D)(50) and S.C. Code Ann. §48-39-10 define “tidelands” as

all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters whether or not the saline waters reach the area naturally or through artificial water courses and those areas that are normally characterized by the prevalence of saline water vegetation capable of growth and reproduction. Provided, however, nothing in this definition shall apply to wetland areas that are not an integral part of an estuarine system. . . .(emphasis added)

The wetland areas of the Plaintiff’s lot, and particularly the area between the high ground 0.269 acres and Tarpon Blvd. at the location of the proposed bridge, does not satisfy the definition of “tidelands.” First, the wetlands between the Tarpon Blvd. and the 0.269 acre portion of the Petitioner’s lot are not integral to the estuarine system of Old House Creek. The meaning of “integral” in this context is not set forth by the applicable statute or regulations. Lacking statutory or regulatory guidance, it is appropriate to look to the plain meaning of these words. “Integral” is defined by Merriam-Webster Online to mean “essential to completeness.” Therefore, the statute requires that the area in question must be essential to the completeness of the nearby estuarine system. For several reasons, the wetlands on the Petitioner’s lot are not integral to the estuarine system involved. Primarily, as the undisputed evidence provides, the wetlands on the Petitioner’s lot are above the MHW and MHHW elevations. As a result, the overwhelming weight of the evidence supports that these areas are infrequently inundated by the saline waters of Old House Creek. Therefore, it is not a leap to reach the conclusion that the estuarine system of Old House Creek is not dependent upon interaction with these areas on the Petitioner’s lot. The estuarine system functions absent a regular connection with the areas of concern. Next, tidal inundation is not the dominant influence for these wetland areas. Evidence before the Court from the Petitioner’s expert provides that the saline water tolerant vegetation present is not prevalent or dominant, that the hydrology driving the make up of these wetlands is actually groundwater and not tidal at all, and that the soil present in the area indicates a limited saline water influence. With this evidence it is reasonable to deduce that these wetland areas are more related to the surrounding high grounds than the nearby tidal estuary. Further, Respondent puts forth no evidence regarding whether this area is integral to the estuarine system involved or to rebut the findings of the State’s experts or the Petitioner’s experts that the tidal influence and connectivity in the area was minimal. Based on these facts, it is proper to conclude that the wetlands of the Petitioner’s lot, and particularly those lying between the 0.269 acres of high ground and Tarpon Blvd at the location of the proposed bridge are not integral to the estuarine system involved.

In addition, Mr. Fanning also testified that while some salt water vegetation is present in the area between the high ground 0.269 acres and Tarpon Blvd. non-salt water vegetation identified as Coastal Bermuda grass is also present in significant amounts. “Prevalence” is not defined by statute or regulation. “Prevalence” is defined by Merriam-Webster Online as “being in ascendancy: dominant.” Based on the evidence and testimony presented, and this Court’s own observation on-site, the salt water vegetation is not the prevalent or dominant vegetation in this area and does not characterize the area between the high ground 0.269 acres and Tarpon Blvd.

Based on these facts, it is clear that no portion of the wetlands on Petitioner’s lot, and particularly at the location of the proposed bridge, satisfies the definition of a coastal tideland. Because the high ground portion of the Petitioner’s lot is not surrounded by coastal tidelands or coastal waters, it does not meet the definition of a coastal island, and is therefore not subject to the requirements of 23A S.C. Code Ann. Reg. 30-12(N).[5]

9. OCRM cited additional grounds for denial of the Permit Application – Petitioner’s failure to explore the alternative of use of the bike path and Petitioner’s lack of ownership of land connecting to Tarpon Blvd. Petitioner rebutted both grounds. Petitioner’s lot is, in its entirety, above the MHW line and therefore those wetland areas abutting Tarpon Blvd. are owned by Petitioner. And, the Petitioner’s use of the bike path was subject to the terms of an easement from the Fripp Island Property Owners Association which contemplated ingress and egress over that portion of the bike path that “runs parallel with and adjacent to the northwestern right of way of Tarpon Boulevard,”[6] not that portion of the bike path constructed alongside the southern boundary of Petitioner’s lot.

10. The State moves that it be dismissed as a party to this case. Although the State does not concede any title claim that it may have to the parcel, the State takes the position that this parcel is not an island under the Coburg cases for the sole reason that this parcel is entirely above mean high water, and is connected along its southeast side to the main body of Fripp by land above mean high water. Accordingly, the State is dismissed as a party to this case for that sole reason.

It is, therefore, ORDERED that Petitioner’s lot is not a coastal island and is not subject to the restrictions and requirements of S.C. Code Ann. Regs. 30-12(N), and Petitioner is entitled to construct a vehicular bridge from Tarpon Blvd to the upland area of Petitioner’s lot as described in the Petitioner’s permit application. The State is dismissed as a party to this case.

AND IT IS SO ORDERED.