ORDERS:
FINAL ORDER AND DECISION
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §
48-39-10 and S.C. Code Ann. Regulation 30-4. Petitioner Charleston County Public Works
(“Petitioner”, “Charleston County” or “County”) is appealing the special conditions placed on a
permit issued by the Respondent South Carolina Department of Health and Environmental Control,
Office of Ocean and Costal Resource Management (“OCRM” or “Respondent”). Charleston County
contends that the permit as issued by OCRM wholly changes the scope of what Charleston County
requested in its permit application. OCRM maintains that the permit, with its special conditions, did
not change the scope of the application, because the purpose for which the application was made did
not change. OCRM also contends it can issue conditional permits pursuant to the statute and
regulation noted above.
A contested case hearing on this matter was held on December 17, 2002, at the Administrative
Law Judge Division in Columbia, South Carolina with the parties present and represented as indicated
above.
The issue is whether OCRM’s granting of a permit which is substantially different from that
which Charleston County applied for is valid, or whether such a change exceeds OCRM’s regulatory
authority. Charleston County applied for a permit to install drainage pipes and fill a critical area to
create a culvert for access across a canal to privately owned property. The permit issued by OCRM
on this application contained the following special conditions: (1) to delete all piping; (2) to construct
a bridge; and (3) to submit all bridge designs to OCRM for review and approval. For the reasons set
forth below, I find that the permit as issued was improper, and that the special conditions imposed
on the permit significantly changed the scope of Charleston County’s application and denied the
County procedural and substantive due process.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and passed upon the
credibility of the witnesses, and taking into consideration the burden of persuasion by the parties, I
make the following Findings of Fact by a preponderance of the evidence:
1.The Petitioner applied for a permit on February 19, 2002, to install three (3) parallel 48"
HDPE pipes for a forty feet (40') long culvert crossing Burden Creek Canal in Charleston County,
South Carolina. The property in question is located on Johns Island, Charleston County, South
Carolina and designated as TMS # 315-00-00-123 and TMS # 315-00-00-124. The owner of the
properties is Martha Craft-Essig.
2.The overall purpose of the application for the permit was to provide access across Burden
Creek Canal for the property owner because the canal divides the two parcels of land. The parcel
across the canal is suitable for the construction of a home, which is the owner’s intent, but remains
a land locked parcel without access.
3.The United States Army Corps of Engineers authorized the Petitioner’s proposed project
under Nationwide Permit # 14 (SAC-14-200-0338) on March 11, 2002.
4.OCRM issued Charleston County a permit dated June 12, 2002, with six special conditions.
The Petitioner objected to three of the conditions, and thereafter filed this administrative appeal. The
conditions the Petitioner objected to required: (1) that all fill and pipes for the causeway be deleted,
(2) that a bridge be constructed to access the adjoining land [the bridge was required to be a minimum
of five feet above the mean high water mark], and (3) that the final bridge design and location be
submitted to and approved by OCRM prior to construction.
5.Burden Creek Canal is a man-made canal dug by Charleston County Public Works
Department in 1968, extending 5.54 miles beginning at the Stono River and ending at Cane Slash
Road. The Canal was constructed pursuant to a permit from the Army Corps of Engineers.
Charleston County maintains the canal by removing all vegetation from the canal. The “critical area,”
as defined by S.C. Code Ann. §48-39-10(J)(1) (Supp. 2002) to include coastal waters, was only
created by the construction of the canal in 1968.
6.In mitigation, Ms. Craft-Essig, the owner of these parcels, offered to place a conservation
easement on them, including placing future land restrictions on the parcels, limiting access to their
parcel. She also proposed to plant buffers along the canal to prevent erosion and enhance water
quality, and limit the impact on the area surrounding the culvert over the piping.
7.There was no additional notice provided to the County or the public of the substantial
changes to the permit as issued.
CONCLUSIONS OF LAW
The Administrative Law Judge Division has jurisdiction over the subject matter pursuant to
S.C. Code Ann. § 48-39-10, et seq. and S.C. Code Ann. Regulations 30-1 through 30-20. This
dispute arises from the Respondent’s interpretation of Regulation 30-4 and S.C. Code Ann. § 48-39-150 (B). The Petitioner contends OCRM misinterpreted and misapplied the regulation and statute.
S.C. Code Ann § 48-39-150 (B) states in pertinent part:
After considering views of interested agencies, local governments and
persons, and after evaluation of biological and economic considerations, if the
department finds that the application is not contrary to the policies specified
in this chapter, it shall issue to the applicant a permit. The permit may be
conditioned upon the applicant’s amending the proposal to take whatever
measures the department feels are necessary to protect the public interest.
S.C. Code Ann. § 48-39-150 (B). (Supp. 2002)
The corresponding Regulation 30-4 provides in pertinent part:
(1) The Department is allowed, under Section 48-39-150 (B) to issue a
conditional permit approval. Under this provision, the Department may direct
the applicant to amend his proposal to take specific measures necessary to
protect the public interest. The Department, at its discretion, may seek
additional public comment on major modifications to a permit application.
S.C. Code Ann. Regulation 30-4. (Supp. 2002) [Emphasis added]The regulation and statute allow OCRM to issue conditional permit approval and to direct
the applicant to amend its application to take whatever specific measures are necessary to protect the
public interest. OCRM claims it approved and issued the County the permit. In contrast, the County
contends that OCRM did not issue a permit to install piping and fill in a critical area; rather, OCRM
exceeded its regulatory authority by placing conditions on the application’s approval that changed
the scope of the request.
OCRM issued a permit with the conditions that the County delete all piping and fill, construct
a bridge five feet above the water, and submit all design plans for the bridge to OCRM for approval.
Charleston County contends that OCRM’s interpretation of the regulation is misguided, overreaching,
unduly burdensome, and completely unrelated to the original application for a permit to install
drainage piping and fill material to create a culvert.
OCRM is charged with enforcing the provisions of Regulation 30-4. Generally, the delegation
of authority to an administrative agency is construed liberally when the agency is concerned with the
protection of the health and welfare of the public. Converse Power Corp. v. SCDHEC, 350 S.C. 39,
564 S.E.2d 341 (Ct.App. 2002) citing City of Columbia v. Board of Health & Envtl. Control, 292
S.C. 199, 355 S.E.2d 536 (1987). However, this delegation does not go unchecked. OCRM must
follow its own regulations and the provisions of the Administrative Procedures Act in carrying out
the legitimate purpose of the agency. See Triska v DHEC, 292 S.C. 190, 355 S.E.2d 531 (1987).
“As with other forms of statutory construction, the words of a regulation must be given their
plain and ordinary meaning without resort to subtle or forced construction to limit or expand the
regulation’s operation.” Converse Power Corp. v. SCDHEC, 350 S.C. 39, 564 S.E.2d 341 (Ct.App.
2002). , citing, Byerly v. Connor, 307 S.C. 441, 415 S.E.2d 675, 677 (Ct.App. 2000), cert. denied
(“[T]he cardinal rule of statutory construction is that the court must ascertain and effectuate the intent
of the legislature, and in interpreting a statute, the court must give the words their plain and ordinary
meaning without resorting to a tortured construction which limits or expands the statute’s
operation.”).
The County contends that the plain and ordinary meaning of the statute is that when OCRM
receives an application for a permit and reviews it, it can either: (1) accept the application; (2) deny
it; or (3) place conditions on the permit as they relate to the application, and within OCRM’s duty
to “protect the public interest.” I agree with the County’s position.
It is clear from the record that Charleston County applied for a permit from OCRM to provide
access over Burden Creek Canal by installing piping and filling in the critical area to cross the canal.
It is equally clear that the County never contemplated or sought to construct a bridge over the canal.
I am asked to review whether OCRM’s decision to issue a permit deleting the piping and requiring
construction of a bridge is a misinterpretation of the statute and regulation. I find that it is.
OCRM misinterpreted the statute and regulation because the conditions imposed were
irrelevant to the design, construction, and installation of the pipe and materials necessary to build a
culvert. Thus, if the County proposed using inadequate pipe and building materials; or if its
installation and design would negatively effect the area, either no permit would be issued, or a permit
with conditions relative to the deficiencies would be issued. Deleting the piping and then requiring
the construction of a bridge exceeds the scope of the regulation and empowers OCRM with unlimited
discretion to construe its own regulations.
Under S.C. Code Ann. § 1-23-380(A)(6), “[t]he court may reverse or modify the decision if
substantial rights of the appellant have been prejudiced because the administrative findings, inferences,
conclusions or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess
of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other
error of law; (e) clearly erroneous in view of the reliable, probative and substantial evidence on the
whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.” (Emphasis added.) Here, although S.C. Code Ann. § 48-39-150
(B) allows OCRM to “condition” the permit to “take whatever measures the departments feels are
necessary to protect the public interest,” to “grant” a permit for a bridge when a permit for a pipe was
requested constitutes an unwarranted exercise of discretion.
The record reveals that there was no attempt by OCRM to bring the alleged “deficiencies”
to Charleston County’s attention before the amended permit was issued. There was no opportunity
given to the County to negotiate and potentially resolve the conflict prior to OCRM’s issuing the
permit. Mr. Charles C. Jarman, Jr., engineering superintendent for Charleston County, testified that
in the past OCRM has negotiated with the County to resolve disputes prior to the issuance of the
permit. That approach was not followed with this application. [Transcript, p. 76–77]
OCRM further argues that it did not change the scope of the application, because it did not
change the purpose of the application. I disagree. The County applied for a permit to cross Burden
Creek Canal by installing a culvert. The purpose was to provide access to the parcel of property.
Even though the purpose of the option proposed by OCRM is consistent with that of Charleston
County’s original application, the Respondent failed to demonstrate why it was necessary to issue a
permit with conditions calling for such a significant change in the original subject matter of the
application. Any conditions that were determined to be placed on the permit by OCRM should have
been relative only to the issue of installing piping and filling in the critical area, and nothing else.
OCRM contends that because the purpose of the application was fulfilled, the conditions
were not unreasonable. In light of the facts of this case, that contention is illogical. If Charleston
County had intended to purchase a car and returned with an airplane, OCRM’s position would be
that such an acquisition would be the same, because the car and the airplane are both forms of
transportation. Charleston County correctly maintains, however, that the acquisition costs and
maintenance of the two are completely different. Such is the case here.
When OCRM decided to require conditions that represented such a significant departure
from what the County requested, it was incumbent upon OCRM to provide additional notice to the
County and the public of the effect of these conditions as provided in S.C. Code Ann. Regulation 30-4, “[t]he Department, at its discretion, may seek additional public comment on major modifications
to a permit application.” There is substantial law on this issue. As our Supreme Court stated in
Stono River Environmental Protection Association v. South Carolina Department of Health and
Environmental Control, 305 S.C. 90, 406 S.E. 2d 340,
Administrative agencies are required to meet minimum standards of
due process. S.C. Const. Art. 1 § 3: Smith & Smith, Inc., v. S.C.
Public Service Commission, 271 S.C. 405, 247 S.E. 2d 677 (1978).
Due process is flexible and calls for such procedural protections as the
particular situation demands. Morrisey v. Brewer, 408 U.S. 471, 481,
92 S.Ct. 2593, 2600, 33 L.Ed. 2d 4884 (1972). In our view,
constitutional due process provisions, apart from the APA, are
sufficient to confer the rights to notice and for an opportunity to be
heard. “No person shall be finally bound by a judicial or quasi judicial
decision of an administrative agency affecting private rights except on
due notice and an opportunity to be heard . . . and he shall have in all
such instances the right to judicial review. S. C. Const., Art. 1,
Section 22.” Id. at 92, 341.
Even though the additional public comment period is discretionary in the Regulation, the
failure to seek such comment in this case was so egregious as to be a violation of the County’s due
process rights. “The requirements of due process include notice, an opportunity to be heard in a
meaningful way and judicial review,” Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 505 S.E.
598 (Ct. App. 1998), citing Stono River, supra and S.C. Const. Art 1, § 22. (emphasis added.)
OCRM did not provide an opportunity for the County or its citizens to be heard at all, much less in
a meaningful way.
Based on the foregoing,
IT IS HEREBY ORDERED that OCRM exceeded its regulatory authority when it
conditioned the permit’s approval on the County’s constructing a bridge; and
IT IS FURTHER ORDERED that the special conditions of the permit changed the scope
of the application for the County’s permit and that failure to provide public notice of the changes
denied the County procedural and substantive due process; and
IT IS FURTHER ORDERED that the Respondent issue the County within 30 days of the
date of this Final Order and Decision a permit for a culvert over Burden Creek Canal in Charleston
County. Any conditions attached to this permit must relate to the construction of the culvert.
AND IT IS SO ORDERED.
________________________________
Carolyn C. Matthews
Administrative Law Judge
August 20, 2003
Columbia, South Carolina |
