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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Donald R. Johnson, II vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Donald R. Johnson, II

Respondent:
S.C. Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management and Richard Holgate
 
DOCKET NUMBER:
00-ALJ-07-0228-CC

APPEARANCES:
Ellison D. Smith, IV, Esquire, for the Petitioner

Leslie W. Stidham, Esquire, for Respondent South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management

Christopher McG. Holmes, Esquire, for Respondent Holgate
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management ( OCRM) to issue a permit to the Respondent, Richard Holgate, (Holgate) allowing the construction of a private dock from his property at 2401 Waterway Boulevard, Isle of Palms, Charleston County, South Carolina, to the Atlantic Intracoastal Waterway (AIWW). The Petitioner, Donald Johnson, (Johnson) filed a timely notice of appeal of this decision and the matter was transferred to the Administrative Law Judge Division (Division). A hearing was held before me on March 20, 2001, at the offices of the Division in Columbia, South Carolina.







DISCUSSION

Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et seq. (1987 and Supp 2000), and the regulations promulgated pursuant to that Act. See 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp 2000). (1) More specifically, the regulatory policies governing all permit decisions and project standards for docks and piers are found at 23A S.C. Code Ann. Regs. 30-12A (Supp. 2000).

The Petitioner opposes the Holgate dock because he contends the walkway for this structure will cross a navigable water identified as "Cappers Creek" prior to reaching the AIWW in contravention of Regulation 30-12A(2)(n). Regulation 30-12A(2)(n) provides that "[d]ocks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water." 23A S.C. Code Ann. Regs. 30-12A (Supp. 2000).

OCRM and Holgate assert that Cappers Creek is not a navigable creek within the meaning of the regulation because it does not possess a "defined channel" with a "significant change in grade with the surrounding marsh," or, alternatively, that natural and permitted obstructions to navigation already existing in Cappers Creek render any impact on navigation from the Holgate dock insignificant and not a violation of the regulation as it has been interpreted and applied.



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

1. The area in question consists of high ground separated from the AIWW by an expanse of intertidal marsh which forms an elliptical bowl or cove so that the middle properties are farther from the AIWW than those on the ends. Holgate's property abuts the remnant of a canal (commonly called Cappers Creek) and is approximately 580 feet from the AIWW. The Petitioner's property is adjacent to both the AIWW and the marsh. Specifically, his property is located on the northern portion of the marsh at the point where Cappers Creek connects with the AIWW. The other property owners along this cove from the Petitioner's lot moving south are: Mitchell, O'Dowd, Holgate, Shiver, Stevenson, McCall, Mosteller, Bone, Dangerfield and Weil.

Cappers Creek was created many years ago by dredging or excavating the marsh. The canal at one time extended southerly from the AIWW along the edge of the high ground to a point where it connected to Hamlin Creek, a natural waterway just south of the marsh cove. For some time after its completion, Cappers Creek was navigable from Hamlin Creek to the AIWW. In fact, before Hurricane Hugo it could be accessed from the AIWW and navigated approximately two to three hours before and after high tide. Over the years, however, this man-made channel has slowly reverted to its natural state of vegetated marsh, and at the time of the hearing vegetation extended entirely across the dredged canal from Hamlin Creek to the Shiver property immediately adjacent to Holgate's property. In addition, along the edge of the marsh where Cappers Creek abuts the AIWW, there is an extensive "shell bank" which acts as a dike to prevent tidal "sheet" flow entering or exiting the marsh from the AIWW.

2. Holgate, Shiver, Stevenson, McCall, Mosteller and Bone all possess property with water frontage on the AIWW based on the extension of the property lines from their lots . Therefore, OCRM issued permits for private docks extending to the AIWW in this area to the Shiver, Stevenson, McCall, Mosteller and Bone properties. The Stevenson dock has been built and the McCall dock was under construction at the time of the hearing. All of these permits are final and not subject to appeal. Moreover, all of these docks cross the former channel of Cappers Creek to reach the AIWW. (2) However, the Mitchell and O'Dowd properties do not have frontage on the AIWW based on the extension of their property lines. Consequently, those properties were only permitted small "crabbing" docks in Cappers Creek.

3. The Dangerfield and Weil properties are separated from the AIWW by Hamlin Creek. Though Hamlin Creek has virtually no water at low tide, it is a navigable waterway with a defined channel. Therefore, since Hamlin Creek may not be bridged to gain access to the AIWW, Dangerfield and Weil have docks to Hamlin Creek.

4. Chuck Dawley is a registered professional surveyor for the State of South Carolina with extensive experience in surveying marshes, creeks and intertidal areas of coastal South Carolina. Mr. Dawley conducted a survey of the area in question which depicts the AIWW, the marsh and Cappers Creek, as well as the existing dock structures and the permitted Holgate and Shiver docks. As part of his survey, Mr. Dawley determined elevations at various points in and along Cappers Creek as well as on a transverse (profile) line from the Holgate lot across the marsh to the AIWW. The elevations were established with relation to mean sea level or National Geodetic Vertical Data (NGVD) using recognized and accepted surveying methods. I find Dawley's survey an accurate delineation of the elevations and locations of the landmarks in the area.

On the Dawley survey, mean sea level was referenced as elevation zero (0.0 feet) which represents the point half-way between mean low tide and mean high tide. The tidal range in this area of Charleston County is approximately 5 feet. Thus, mean low water would have an elevation on the survey of minus 2.5 feet and mean high water an elevation of plus (+) 2.5 feet.

The profile line shows elevations beginning at Holgate's high ground of + 7.5 feet. As the line proceeds towards the AIWW, the elevation drops to + 3.3 feet at the edge of what was referred to as "high marsh" and then to + 1.76 feet where the more typical low marsh vegetation appears. At elevation + 1.18 feet, the vegetation ends at the eastern edge of Cappers Creek. In the middle of the creek, the elevation is + 0.5 feet and where the vegetation appears again on the western bank the elevation is + 1.37 feet From that point out to the AIWW the elevations are in the + 3 feet to + 4 feet range until the shell bank separating the marsh from the AIWW is encountered. At the top of the shell bank, the surveyed elevation is + 5.4 feet.

Dawley also measured the elevation of the shell bank at the mouth of Cappers Creek where it enters the AIWW. At its lowest point, the bank is at an elevation 1.66 feet above mean sea level. (3) Therefore, there is less than one foot difference between the height of the shell bank and mean high water. Because of the obstruction of this shell bank, only during the last 20% of a normal incoming tide is there any exchange of water from the AIWW and Cappers Creek, and during most of that limited time the exchange of water flows only at a trickle. Furthermore, the shell bank acts to impound the water in Cappers Creek because it is held at the elevation of the lowest point on the shell bank. For this reason, there is always a foot or two of standing water in Cappers Creek.

5. Cappers Creek is inaccessible from the AIWW for any "valuable floatage" including recreational watercraft. See State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). In fact, Dawley was unable to navigate a 15 foot johnboat from the AIWW across the shellbank on a normal high tide. In order to enter the creek, Dawley had to get out the boat and pull it into the waters of Cappers Creek. Moreover, though portions of the waters of Cappers Creek are navigable, I find that the waters in front of Holgate's property are not navigable as defined by the regulations. The channel has been filled in with natural siltation and marsh vegetation has begun to re-establish itself. In addition, a storm water outlet at the approximate point where the Holgate dock would be placed has caused a sand bar to grow up further impeding navigation in this portion of Cappers Creek. Because of the siltation and vegetation, there is no defined channel with a significant change in grade from the surrounding marsh at the point where Holgate is allowed to construct his dock. The area in front of the Holgate property is essentially a non-vegetated mudflat. (4)

Furthermore, Holgate's dock is permitted to be built at a location approximately 290 feet from the existing Stevenson dock and 140 feet from Shiver's authorized dock. Holgate's dock would not prevent O'Dowd, Mitchell or Johnson from accessing the AIWW from their properties and existing docks, nor would Holgate's dock block navigation over those portions of Cappers Creek that are navigable.

Additionally, all properties upstream (to the left) of Holgate have docks -- built or authorized -- to the AIWW. Therefore, even assuming Cappers Creek possessed navigable proportions from Hamlin Creek to the AIWW, prohibiting Holgate a dock to the AIWW would have no effect on the obstructions to that navigation presented by those other docks. Rather, only the 140 feet from where Holgate's dock is to be built and the point where the Shiver dock will cross would be curtailed. Therefore, restricting Holgate to a dock to Cappers Creek would not provide meaningful access to other waters for Holgate, nor would it preserve meaningful access in Cappers Creek to the Petitioner or the public.



CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2000), and §§ 1-23-500 et seq. (1986 and Supp. 2000). Furthermore, S.C. Code Ann. § 48-39-150 (D) (1987 and Supp. 2000) specifically authorizes the Division 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 and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et seq. (1987 and Supp. 2000), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2000). Those regulations govern the management, development, and protection of the critical areas and coastal zone of the state. Furthermore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 2000); S.C. Code Ann. § 48-39-130 (1987 and Supp. 2000).

Holgate's property is located in a critical area as defined in Section 48-39-10 and Regulation 30-1(C)(4) and (12). Any person wishing to construct a dock in a critical area must apply for and receive a permit.

4. The sole issue raised by the Petitioner in challenging OCRM's permit decision is that Holgate's dock would cross Cappers Creek at a point where the dock would obstruct navigability in the creek. Accordingly, the Petitioner contends that Holgate's dock cannot be permitted to cross the Creek to reach the AIWW.

Regulation 30-12A(2)(n) provides:

Docks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water . . . .

23A S.C. Code Ann. Regs. 30-12A(2)(n) (Supp. 2000) (emphasis added). Therefore, if a creek is navigable and has a defined channel, it cannot be crossed. (5)

A creek is not navigable unless the waterway has the capacity for "valuable floatage." In determining the navigability of a waterway, "[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." The term "valuable floatage" includes not only commercial vessels but also use of a waterway by the general public for boating, hunting, and fishing. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Furthermore, "[t]he test of navigability is not whether a waterway is accessible at all times. Rather, the test is whether it is accessible 'at the ordinary stage of the water.' " Hughes v. Nelson 399 S.E.2d 24, 26, 303 S.C. 102, 106 (1990) [quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E. 884, 888 (1909)].

In this case, Cappers Creek is located in a tidal area with tides ranging from low to high tide. However, even at high tide and with a small boat, Cappers Creek was basically inaccessible to the general public. Therefore, though a minor portion of Cappers Creek may be capable of floating watercraft at mid-tide, the facts establish that Cappers Creek was not navigable.

Moreover, as referenced above, the mere existence of a navigable waterway is not enough to satisfy the provisions of Regulation 30-12A(2)(n). Rather, the regulation requires the presence of a waterway with a defined channel. A defined channel is one "evidenced by a significant change in grade with the surrounding marsh." In this case, the evidence does not establish that the dock will cross a waterway having a defined channel. Therefore, because Holgate's dock will not cross a navigable creek with a "defined channel," Regulation 30-12A(2)(n) is not violated by this permit.

5. All of the properties in the marsh cove area in this case that are considered water frontage to the AIWW have been issued permits for docks to the AIWW, and none has been restricted to Cappers Creek. (6) Denying Holgate access from his property to the AIWW would result in him being treated in a manner different from that accorded his similarly situated neighbors. Therefore, denying Holgate a permit potentially creates an equal protection violation of U.S. Const. amend. XIV and S.C. Const. art. I, § 3. See Weaver v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (S.C. 1992).

ORDER

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

ORDERED that the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management to issue this permit to Respondent Richard Holgate to the Atlantic Intracoastal Waterway be upheld and said permit issued.

AND IT IS SO ORDERED.





____________________________

Ralph King Anderson, III

Administrative Law Judge





August 14, 2001

Columbia, South Carolina

1. The coastal zone is comprised of Beaufort, Berkeley, Charleston, Colleton, Dorchester, Georgetown, Horry and Jasper counties. S.C. Code Ann. §48-39-10(B) (1987 and Supp. 2000).

2. The Petitioner also has at least one dock in the AIWW; however, his property is immediately adjacent to the AIWW and his dock(s) do not cross over Cappers Creek.

3. In July of 1999, OCRM issued a permit to Charles Hill (Mr. Mitchell's predecessor in title) allowing the excavation of a portion of the shell bank at the mouth of Cappers Creek to restore and enhance navigation in and out of Cappers Creek via the AIWW. The permitted activity was performed before Dawley's survey was undertaken.

4. OCRM has consistently interpreted 23A S.C. Code Ann. Regs. 30-12A(2)(n) ( Supp. 2000) as not prohibiting docks from crossing non-vegetated mudflats.

5. Presumably, under the regulations, if a creek is navigable but does not have a defined channel it can be crossed. Nevertheless, the dock could not impede navigation under Article XIV, Section 4 of the South Carolina Constitution or S.C. Code Ann. § 49-1-10 (1987 and Supp. 2000). Furthermore, 23A S.C. Code Ann. Regs. 30-12A(2)(a) and (b) (Supp. 2000) provide that a dock "shall not impede navigation" or "be constructed in a manner that . . . restrict[s] water flow."

6. OCRM requires that applicants for private docks have water front property. To determine if property is water front, since OCRM regulations do not allow docks longer than 1000 feet, OCRM extends the high ground property lines perpendicular to the waterway sought to be accessed to determine if it can be reached within 1000 feet. See 23A S.C. Code Ann. Regs 30-12A(2)(l) (Supp. 2000).


Brown Bldg.

 

 

 

 

 

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