SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned cases are before this Court pursuant to the requests of Petitioner Jose Biascoechea and Petitioners Ray Ward and Dorothy Forrester for contested case hearings. Petitioner Biascoechea challenges the decision of Respondent South Carolina Department of Health and Environmental Control, through its Office of Ocean and Coastal Resource Management (OCRM), to deny, in part, his application to amend his current permit authorizing the construction of a private, recreational dock at 2830 Jasper Boulevard on Sullivan’s Island in Charleston County, South Carolina. Similarly, Petitioners Ward and Forrester contest OCRM’s decision to deny, in part, their application to construct a joint-use, recreational dock from their adjoining properties at 2820 and 2824 Jasper Boulevard on Sullivan’s Island in Charleston County, South Carolina. In both cases, Petitioners seek permission to bridge one, smaller unnamed tributary of Conch Creek, which runs immediately behind the properties and which Petitioners contend is unnavigable, and to extend their docks to a second, larger unnamed tributary of Conch Creek. OCRM, however, contends that the first tributary behind the properties is a navigable waterway that may not be bridged by a dock absent extraordinary circumstances. Therefore, while OCRM did grant Petitioners’ requested permits, it restricted the length of the docks to extend only to the first tributary and correspondingly reduced the size of the docks for placement in the first, smaller tributary.

These cases were consolidated for hearing by an Order dated August 9, 2005, and, after timely notice to the parties, a hearing of this matter was held on February 1, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence and arguments presented at that hearing and upon the applicable law, I find that OCRM’s denial of Petitioners’ requests to bridge the first tidal creek behind their properties in order to reach a larger creek must be sustained.

FINDINGS OF FACT

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

1. Petitioners Jose Biascoechea, Dorothy Forrester, and Ray Ward own adjacent properties located at 2830, 2824, and 2820 Jasper Boulevard, respectively, on Sullivan’s Island in Charleston County, South Carolina. The properties front on Jasper Boulevard and are bounded to the rear by an expanse of tidal marshland adjoining Conch Creek, a waterway located on the north side of Sullivan’s Island. The marshland immediately behind Petitioners’ properties is crossed by two unnamed tributaries of Conch Creek. The tributary nearest the properties is the smaller of the two tributaries, both in width and depth, and it flows into the farther, larger tributary, which reaches Conch Creek. The portion of the smaller creek that connects it to the larger tributary was originally created to facilitate stormwater drainage, and a stormwater drainpipe continues to deposit stormwater into the smaller creek where it turns and begins to run toward the larger tributary. This smaller tributary runs behind several other properties on Jasper Boulevard in addition to Petitioners’ properties. Currently, there are no docks extending from these properties to the larger tributary, and only one of these properties has a dock extending into the smaller tributary.

2. Petitioner Biascoechea has received two prior permits to construct a dock on his Sullivan’s Island property, both of which restricted the length and size of the dock to sit in the first, smaller tributary. In 1996, he applied for a permit to construct a private dock into the second, larger tributary; the proposed dock consisted of a 4’ x 350’ walkway leading to a 6’ x 10’ fixed pierhead and an attached 6’ x 16’ floating dock. Although OCRM granted the permit in 1997, it added special conditions to the permit that required the dock to terminate at the first tributary of Conch Creek (resulting in an approximately 30’ walkway), reduced the pierhead to a 5’ x 10’ structure, eliminated the floating dock, and prohibited the dock from extending more than 2.5’ into the smaller creek. However, Dr. Biascoechea never constructed a dock pursuant to his 1997 permit. In 2000, Dr. Biascoechea applied for a permit with the prior owner of Petitioner Forrester’s property to construct a joint-use private dock extending to the larger tributary. The proposed dock consisted of a 4’ x 485’ walkway leading to a 10’ x 16’ fixed pierhead with two 8’ x 10’ floating docks attached. As with the 1997 permit, OCRM granted the permit application, but restricted the length of the dock to the first tributary behind the properties, reduced the size of the fixed pierhead, eliminated the floating docks, and limited the channelward extension of the dock into the smaller tributary. Dr. Biascoechea did not construct a dock based upon the 2000 permit, and received a three-year extension of the permit in 2005.

3. In that same year, Dr. Biascoechea also requested an amendment to his permit to change the use from a joint-use dock with his neighbor to a single-use dock for his lot. He also sought to relocate the site of the dock toward the center of his property, to extend the proposed dock to the larger tributary of Conch Creek, and to add floating docks. Consistent with its prior permitting decisions, OCRM granted the amendment for the change in the use and relocation of the dock, but denied Dr. Biascoechea’s request to extend the dock to the larger tributary and to add floating docks to the structure. With the change in the dock’s use from a joint-use to a single-use dock, OCRM also reduced the size of the permitted pierhead from a 10’ x 10’ fixed pierhead to a 5’ x 10’ fixed pierhead extending no more than 2.5’ into the smaller creek.

4. Petitioners Ward and Forrester also submitted an application in 2005 for a permit to construct a dock to the larger tributary. Their proposed dock is a joint-use, private, recreational dock consisting of a 4’ x 620’ walkway leading to an 8’ x 15’ fixed pierhead with two 6’ x 10’ floating docks attached. As with Dr. Biascoechea’s permit amendment request, OCRM granted the dock application, but required that the dock terminate at the first, smaller tributary of Conch Creek (resulting in an approximately 100’ walkway), reduced the fixed pierhead to a 10’ x 10’ structure, eliminated the floating docks, and restricted the pierhead from extending more than 2.5’ into the creek.

5. OCRM’s decisions on Petitioner Biascoechea’s permit amendment request and the permit application filed by Petitioners Ward and Forrester were both issued by letters dated April 27, 2005. After receiving these decisions, Petitioners timely requested contested case hearings to review OCRM’s decisions to limit their docks to the first tributary in the marsh behind their properties.

6. In addition to its permitting history with Dr. Biascoechea, OCRM has also denied similar requests to bridge the smaller tributary from the property located at 2814 Jasper Boulevard. In 2001, Ralph Black applied to OCRM to construct a 720’-long private, recreational dock from the property located at 2814 Jasper Boulevard that would bridge the smaller tributary immediately behind the property to reach the larger tributary of Conch Creek. OCRM granted Mr. Black’s dock permit, but limited the dock to extending to the first tributary. Subsequently, in 2003, OCRM denied a permit amendment request, in which Mr. Black again sought to access the larger creek by bridging the smaller creek with his dock. See Black v. S.C. Dep’t of Health and Envtl. Control, Docket No. 03-ALJ-07-0434-CC (S.C. Admin. Law Ct. July 8, 2004).

7. The tributary of Conch Creek that Petitioners wish to bridge with their docks is a small, but not inconsequential, tidal creek. The main course of the tributary runs from its mouth, where it connects with the larger tributary, through its main body, which lies behind the properties located between 2830 and 2814 Jasper Boulevard, and reaches a point where it begins to meander and taper off in the marsh. Throughout this main course, the creek varies between about 10’ to 13’ feet in width, measured between the surrounding marshgrass, and 1’ to 2’ in depth, measured between the creek’s channel and the surrounding marsh. However, the functional size of the creek is limited in certain places by vegetation, particularly near the mouth of the creek, by several large oyster beds located throughout the creek, and by some silting near the stormwater drainpipe.

8. While the creek in question is not a large creek, it is a navigable waterway. At the hearing, Dr. Biascoechea testified that navigation in the creek was difficult at all tides and basically impossible at low tide. He further testified that he has not used the creek for navigation, aside from a few experimental attempts at navigating the creek in his Hydrosport boat, and that he has not seen others use the creek for navigational purposes. However, he also conceded that some navigation of the creek would be possible in larger boats at high tide and that navigation in a canoe might be possible even at mid tide. Bill Eiser, a staff oceanographer and assistant director of regulatory programs with OCRM, testified that, in his involvement with various dock permitting matters involving the tributary, he had successfully navigated in the small tributary on several occasions. Specifically, Mr. Eiser testified that he had navigated in the tributary in a 15’ canoe at mid tide while evaluating Mr. Black’s permit amendment request in 2003, and that he had navigated in the creek in a 15’ Boston Whaler at high tide in October 2005 while reviewing the decision in the instant matter. He further testified that, when he visited the proposed dock site on land in April 2005 as part of the initial review of these applications, the creek appeared to be in the same condition and to have the same width as when he had visited the creek in 2003. Therefore, while the smaller creek, like many tidal creeks, may not be easily navigated in large boats and may not be routinely navigated by nearby residents, the testimony in this case establishes that the creek at least has the capacity for valuable recreational floatage at mid and high tides.

9. In sum, the small tributary in question in this matter is the first navigable creek to the rear of Petitioners’ properties that has a defined channel as evidenced by a significant change in grade with the surrounding marsh.

CONCLUSIONS OF LAW

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

The central question presented by this case is whether the first tidal creek behind Petitioners’ properties is a navigable waterway. The dock permitting regulations generally prohibit a dock from bridging a navigable waterway in order to reach deeper water. See 23A S.C. Code Ann. Regs. 30-12(A)(1)(n) (Supp. 2005). In the case at hand, OCRM concluded that the smaller tributary was the first navigable creek adjacent to Petitioners’ properties, and accordingly imposed the challenged permit conditions prohibiting Petitioners’ docks from bridging that creek. Petitioners, however, raise three grounds to support their requests to bridge the smaller tributary behind their properties in order to extend their docks to a larger tributary of Conch Creek.[1] First, Petitioners generally contend that the smaller creek is not a navigable creek and that the larger tributary is, therefore, the first navigable creek adjacent to their properties. Second, Petitioners argue that, even if the smaller tributary is navigable in places, the close proximity of the larger creek and the natural obstructions in the smaller creek present rare geographic circumstances and constitute exceptional site-specific conditions that warrant the bridging of the first creek. Finally, Petitioners contend that OCRM has granted permits for docks to cross similar creeks such that principles of equal protection require OCRM to grant them a permit to bridge the smaller tributary adjacent to their properties. Based upon the evidence presented regarding the navigability of the creek in question and upon South Carolina water law, I find that the creek immediately behind Petitioners’ properties is a navigable waterway and that, as such, OCRM properly denied their requests to bridge the creek.

Dock Permitting Regulations

Regulation 30-12(A)(1) sets forth a number of permitting standards applicable to the construction of private docks. See 23A S.C. Code Ann. Regs. 30-12(A)(1) (Supp. 2005). Among these standards is a provision, found at subsection (n), that generally prohibits docks from bridging navigable waterways in order to reach deeper water. 23A S.C. Code Ann. Regs. 30-12(A)(1)(n) (Supp. 2005). That section requires that “[d]ocks must extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel as evidenced by a significant change in grade with the surrounding marsh; or having an established history of navigational access or use,” and further provides that “[s]uch creeks cannot be bridged in order to obtain access to deeper water.” Id. In order to address unique geographic situations in which such bridging may be appropriate, the regulation also contains certain narrow exceptions to this general prohibition upon the bridging of navigable waterways. The regulation recognizes that “[r]are geographic circumstances, such as [the] very close proximity of a significantly larger creek within extensions of property or corridor lines, may warrant dock extension to a creek other than the first navigable creek.” Id. The regulation further authorizes OCRM to allow an open water channel to be bridged “in exceptional cases” where “current access is prohibited by other man made or natural restrictions or if site-specific conditions warrant such a crossing.” Id. However, in the absence of such rare or exceptional circumstances, the plain terms of Regulation 30-12(A)(1)(n) prohibit a dock from crossing a tidal creek if that creek: (1) is navigable, and (2) its navigability is demonstrated by a defined channel with a significant change in grade from the surrounding marsh or an established history of navigational access or use. In the instant case, the tidal creek that Petitioners seek to bridge meets these criteria, does not present any rare or exceptional geographic circumstances, and, thus, may not be bridged under the provisions of Regulation 30-12(A)(1)(n).

Navigable Waters

In South Carolina, “[n]avigable water is a public highway which the public is entitled to use for the purposes of travel either for business or pleasure.” State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 189, 63 S.E. 884, 888 (1909). These rights of the public in navigable waters have their origins in the common law, see id. at 190, 63 S.E. at 889, and these common-law rights have been explicitly preserved both in the South Carolina Constitution and the South Carolina Code of Laws. See S.C. Const. art. XIV, § 4 (“All navigable waters shall forever remain public highways free to the citizens of the State and the United States . . . .”); S.C. Code Ann. § 49-1-10 (1987) (“All streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navigable watercourses and cuts are hereby declared navigable streams and such streams shall be common highways and forever free, as well to the inhabitants of this State as to citizens of the United States . . . .”). The public’s right to access navigable waterways is deeply rooted in South Carolina law.

In determining whether a waterway is navigable, “[t]he true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use.” State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 449, 346 S.E.2d 716, 719 (1986) (citing to Heyward v. Farmer’s Mining Co., 42 S.C. 138, 19 S.E. 963 (1894)) (emphasis in original). This “valuable floatage” need not be commercial floatage, but may include recreational uses of the stream by the general public for pleasure boating, hunting, and fishing, among other activities. Id. at 449-50, 346 S.E.2d at 719; see also Columbia Water Power Co., 82 S.C. at 189, 63 S.E. at 888 (“[T]here cannot be the least doubt that the public is as much entitled to be protected in its use for floating pleasure boats as for any other purpose.”). Accordingly, a relatively small stream may be considered a navigable waterway. See Hughes v. Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (Ct. App. 1990) (“To be navigable, a waterway does not have to embrace commercial shipping lanes. It need not accommodate the Carnival Cruise Lines or be able to float the Love Boat.”). Further, in order to be considered navigable, the waterway in question need not be accessible at all times, but rather need only be accessible for navigation “at the ordinary stage of the water.” Id. at 102, 399 S.E.2d at 26 (quoting from Columbia Water Power Co.).

Beyond these general propositions regarding navigable waters, South Carolina courts have expounded further upon the navigability of tidal streams. While the South Carolina Supreme Court, over one hundred years ago, repudiated the common-law rule that streams affected by the ebb and flow of the tide are per se navigable, see State v. Pacific Guano Co., 22 S.C. 50 (1884), it has recently reiterated that, “under South Carolina law[,] tidal water is presumed navigable unless shown incapable of navigation in fact.” McQueen v. S.C. Coastal Council, 354 S.C. 142, 150 n.7, 580 S.E.2d 116, 120 n.7 (2003) (citing to Pacific Guano Co.) (emphasis in original). This position is in accord with that taken in other jurisdictions, see 65 C.J.S. Navigable Waters § 4, at 62 (2000) (“Irrespective of whether the tidal test of navigability is recognized or rejected, all tidewater is prima facie navigable.”), and is consonant with the principle that the land below tidal streams is held by the state in trust for use by the public, see Cape Romain Land & Improvement Co. v. Georgia-Carolina Canning Co., 148 S.C. 428, 438, 146 S.E. 434, 438 (1928) (“The title to land below the high-water mark on tidal navigable streams, under the well-settled rule, is in the State, not for purposes of sale, but to be held in trust for public purposes.”). Moreover, this presumption in favor of navigability provides helpful guidance in resolving the otherwise-unsolvable question of whether a tidal stream that is accessible at high tide but inaccessible at low tide should be considered navigable “at the ordinary stage of the water.”[2]

In the case at hand, it is clear that the first tidal creek behind Petitioners’ properties is a navigable waterway. As a tidal stream, the creek is presumed to be navigable, and the testimony presented at the hearing of this matter establishes that the creek is navigable in fact. For, while the creek is not navigable at all times and tides, and while it does not have the capacity to support commercial floatage, the creek may be navigated for recreational purposes at mid and high tides in boats ranging from canoes to 15’ Boston Whalers. Unquestionably, this navigation demonstrates that the creek has the capacity for valuable floatage at its ordinary stage. See, e.g., State v. Head, 330 S.C. 79, 90, 498 S.E.2d 389, 394 (Ct. App. 1997) (noting that the “relevant authorities have considered a waterway navigable in the appropriate case if a small sport fishing boat could negotiate it at its ordinary stage”). Further, given the creek’s capacity for valuable floatage, neither the infrequency of actual navigation in the creek nor the occasional obstruction of portions of the creek by vegetation and oyster beds cause the creek to be deemed unnavigable. See Medlock, 289 S.C. at 449, 346 S.E.2d at 719 (holding that the test for navigability depends upon whether the stream has the capacity for valuable floatage, “irrespective of the fact of actual use or the extent of such use”); Head, 330 S.C. at 90, 498 S.E.2d at 394 (noting that “the existence of occasional natural obstructions to navigation . . . generally does not change the character of an otherwise navigable stream”). Under South Carolina water law, the smaller tidal creek immediately to the rear of Petitioners’ properties is a navigable waterway.

However, Regulation 30-12(A)(1)(n) only protects a creek from being bridged by a dock if its navigability is demonstrated by either “a defined channel as evidenced by a significant change in grade with the surrounding marsh” or by “an established history of navigational access or use.” Here, while the creek in question does not have an established history of navigational use to any significant extent, the parties agree, and the evidence in the record demonstrates, that the smaller creek does have a defined channel as evidenced by a significant change in grade with the surrounding marsh. The creek in question is not a tidal mud flat that may only be skimmed across in a kayak at high tide, but is a true tidal creek with a well-defined creek bed that channels the flow of water in the creek and that reaches a depth of two feet at Petitioners’ properties. The first tributary behind Petitioners’ properties is not only a navigable tidal creek, but its navigability is evidenced by its well-defined channel with a significant change in grade from the surrounding marsh. As such, the creek may not be bridged by Petitioners’ docks under Regulation 30-12(A)(1)(n) absent a showing that rare geographic circumstances or other exceptional, site-specific conditions warrant such a crossing.

Rare Geographic Circumstances/Exceptional Cases

While Regulation 30-12(A)(1)(n) generally prohibits the bridging of navigable creeks like that to the rear of Petitioners’ properties, it does authorize OCRM to allow docks to cross such creeks where certain rare or exceptional geographic conditions at the site of the dock warrant such a crossing. In the case at hand, Petitioners have not demonstrated that such rare or exceptional conditions exist at the locations for their docks. First, while the second, larger tributary of Conch Creek is potentially within the reach of docks extending from Petitioners’ properties, Petitioners have not shown that the geography of the two tributaries behind Petitioners’ properties—namely, a smaller, landward tributary running into a larger, seaward tributary—presents a rare geographic circumstance that warrants the bridging of a navigable creek.[3] See 23A S.C. Code Ann. Regs. 30-12(A)(1)(n). Second, Petitioners have not established that access to the tidal creek behind their properties is prohibited by man-made or natural restrictions or that other site-specific conditions in or near the creek warrant the bridging of the creek. See id. Petitioners have established that navigation in the creek is difficult, and nearly impossible, at certain times and tides due to natural restrictions such as encroaching marsh grass and oyster beds. However, these restrictions upon navigation in the creek are restrictions common to many, if not most, tidal creeks; and, as demonstrated by the testimony, these restrictions merely limit, but do not prohibit, navigational access to the creek. Therefore, these natural restrictions to navigation in the creek do not constitute an “exceptional case” that would warrant the bridging of an otherwise navigable waterway. Because Petitioners have failed to demonstrate that the geography of the creeks behind their properties present rare or exceptional circumstances that warrant the bridging of the smaller tributary, Regulation 30-12(A)(1)(n) prohibits their docks from crossing that navigable creek.

Equal Protection

Aside from the requirements of Regulation 30-12(A)(1)(n), Petitioners argue that principles of equal protection require OCRM to grant their requests to bridge the first tidal creek behind their properties. Specifically, Petitioners contend that, because OCRM has granted permits to other landowners to construct docks that bridge creeks similar to the creek at issue in this matter, constitutional guarantees of equal protection require OCRM to grant a similar permit to them. See U.S. Const. amend. XIV; S.C. Const. art. I, § 3. However, I do not find a violation of Petitioners’ right to equal protection of the laws in this matter.

“The sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment.” Grant v. S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995). In Grant, the South Carolina Supreme Court held that a landowner had failed to establish that the South Carolina Coastal Council, the predecessor to OCRM, had violated his equal protection rights by prohibiting him from filling critical area property on his land, but allowing a neighboring property owner to fill his property and allowing the county to fill an area in a nearby park. Id. at 355, 461 S.E.2d at 392. Because there was evidence to distinguish the areas filled by the landowner’s neighbor and by the county from his property, the court held that the landowner “did not prove the Coastal Council treated him differently from other similarly situated landowners.” Id. In contrast, in Weaver v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992), the South Carolina Supreme Court held that the Coastal Council had violated a landowner’s equal protection rights by denying her application to construct a dock because of the dock’s potential impact upon a public oyster ground, while having previously granted permits to three adjacent landowners to build similar docks in the same public oyster ground. In Weaver, the court found that the landowner was similarly situated to her neighbors who had received permits, because their permits authorized the construction of docks that were similar to that proposed by the landowner, that started from lots adjacent to her property, and that reached the same public oyster ground that her dock would affect. See id. at 369, 423 S.E.2d at 341.

In the case at hand, Petitioners have not established that OCRM has treated them differently from other similarly situated applicants for dock permits, and therefore, their equal protection claim cannot be sustained. Petitioners did introduce evidence regarding three docks that appeared to cross other creeks with some similarities to the tidal creek behind their properties. However, none of these docks bridge the creek at issue in this case, and only one of the docks, the Hoefer dock, is located within the vicinity of Petitioners’ properties. And, although Dr. Biascoechea had observed the docks and creeks at the other locations, and concluded that they were comparable to the creek behind his property, he had not attempted to navigate in those creeks and had not taken measurements of those creeks to determine whether their navigability was similar to that of the first tidal creek adjacent to his property. Further, with regard to the persons most similarly situated to Petitioners—prior applicants for docks bridging the smaller tributary behind their properties—OCRM has been entirely consistent. In at least four other dock permit applications, including two prior applications filed by Dr. Biascoechea, OCRM has found that the creek behind Petitioners’ properties is a navigable waterway and therefore denied requests to bridge that creek to reach deeper water. Accordingly, no docks currently bridge the creek in question to extend to the larger tributary of Conch Creek. In short, Petitioners have not established that OCRM has treated them differently than other, similarly situated applicants for dock permits, and thus have not established an equal protection violation in this matter.

ORDER

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

IT IS HEREBY ORDERED that that OCRM’s denial of Petitioners’ requests to bridge the first tidal creek behind their properties in order to reach a larger creek must be SUSTAINED. Further, the other permit conditions imposed by OCRM upon Petitioners’ permits as a result of the restriction of the docks to the first creek, rather than the larger creek, are also sustained.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

April 6, 2006

Columbia, South Carolina