SC Administrative Law Court Decisions

This matter is before me pursuant to S.C. Code Ann. §§ 48-39-10 et seq. (Supp. 2000), and 23A S.C. Code Ann. Regs. 30-1 to 30-20 (Supp. 2000). The Petitioner requested a contested case hearing to review the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (Department or OCRM), to place special conditions on a permit to construct a bulkhead on Hog Inlet at 6209 Ocean Boulevard, Myrtle Beach, Horry County, South Carolina. Respondent South Carolina Coastal Conservation League (SCCCL) made a Motion to Intervene, which was granted on April 11, 2001. A hearing was conducted in this matter at the offices of the Administrative Law Judge Division (Division) in Columbia, South Carolina on May 3, 2001.

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 Petitioner owns a residence at 6209 Ocean Boulevard, Cherry Grove Beach, Horry County, South Carolina. On May 19, 2000, the Petitioner applied with the Department for a permit to construct a bulkhead on his property in Horry County. ⁽¹⁾ The proposed bulkhead measures approximately 133 linear feet. The application also requested permission to backfill a wetland area, which was approximately 30' by 65' in area.

On November 1, 2000, the Department issued permit number 00-1D-267-P to the Petitioner. The permit allowed for the construction of a 133 linear foot bulkhead, in order to prevent further erosion of the Petitioner's property. However, "Special Condition One" required that the backfill of wetlands be deleted, and that the bulkhead be placed at the critical line. The Petitioner did not sign and accept the permit, but rather wrote a letter to the Department in which he requested that the permit be held in abeyance, pending the outcome of legal proceedings before the U. S. Supreme Court in Sam McQueen v. South Carolina Coastal Council, 340 S.C. 65, 530 S.E.2d 628 (2000) petition for cert. filed, (U.S. Aug. 22, 2000) (No. 00-285). ⁽²⁾ On December 1, 2000, the Department sent a letter in response, informing the Petitioner that due to the indefinite status of the legal proceedings in McQueen, the Department was unable to grant the Petitioner's request. The Petitioner thereafter requested a contested case hearing before the Division.

The South Carolina Department of Natural Resources (DNR) expressed no objection to the bulkhead itself, provided that it is constructed immediately adjacent to the erosional escarpment. However, DNR recommended that any fill of wetlands be prohibited. In addition, the U. S. Department of the Interior, through the U. S. Fish and Wildlife Service, objected to this project based on the destruction of the estuarine environment resulting from the proposed fill. The SCCCL also wrote letters of objection during the application comment period, objecting to the proposed backfill of wetlands.

2. The Petitioner's property is located in the Cherry Grove section of North Myrtle Beach. Rose purchased this property on May 10, 1996 for $200,000.00. There was an existing house on this property when Rose purchased it, along with a dock. At the time of purchase, it was apparent that the shoreline was eroding. However, despite the erosion, Rose has a back yard and therefore the erosion is not threatening his home. Furthermore, Rose testified that he believes his property is worth more than $200,000.00 in its present condition.

Cherry Grove was created approximately fifty years ago as a result of a massive dredge and fill operation. A main canal, and a number of finger canals were excavated, and lots were created adjacent to these canals. In the years since this area was first created and developed, the Cherry Grove development has battled erosion. The continuous ebb and flow of the tidal canals, adjacent to Hog Inlet, have threatened the seaward property lines of many lots. In response, hundreds of property owners in Cherry Grove have constructed bulkheads on their lots to stabilize their shoreline. Additionally, over the years numerous property owners applying for bulkhead permits have also sought the authorization from OCRM or its predecessor agency, South Carolina Coastal Council, to fill tidal wetlands to reclaim property lost by erosion. However, OCRM has consistently denied these requests, and limited its authorization to the construction of a bulkhead at the critical line for these properties.

The area adjacent to the Petitioner's high ground, which was determined to be a critical area by the Department, is vegetated with borrichia, spartina patens and spartina alterniflora. These plants are salt-tolerant and are indicators of regular tidal flow. In addition, the area proposed for fill contains a significant amount of wrack. Wrack, which is normally decaying saltmarsh vegetation, is also indicative of an intertidal area. Consequently, if the Petitioner is allowed to backfill the intertidal area adjacent to his high ground, the tidal and intertidal resources which serve vital natural resource functions will be adversely impacted.

These functions include water quality, water quantity and habitat functions. For instance, the tidal and intertidal area which will be impacted by the Petitioner's backfill performs the water quality function of filtering the pollutants out of the waters of the adjacent canal. This area also serves as a buffer and a filter from pollutants and sediment in storm water run-off. In addition to these water quality functions, the tidal and intertidal area adjacent to the Petitioner's high ground serves a water quantity function by providing an area for the absorption of flood waters. Furthermore, the tidal and intertidal area provides a significant habitat function. This area serves as foraging and nursery habitat for a variety of estuarine organisms and nutrients for use in the estuarine food chain.

Mark Caldwell, an expert in marine biology with special expertise in locating OCRM's jurisdictional boundary known as the critical line, recommended that the bulkhead be permitted, but that the fill should be denied. He also recommended that the bulkhead be built 18 inches from the existing escarpment, in accordance with 23A S.C. Code Ann. Regs. 30-12(C)(1)(b) (Supp. 2000). ⁽³⁾ I find that Mark Caldwell's recommendations are substantiated by the evidence.

3. In addition to the need for a Department permit for construction of the bulkhead and alteration of the tidal and intertidal areas, the Petitioner's proposed permit is reviewed under the Department's water quality regulations found at 25A S. C. Code Ann. Regs. 61-101 (Supp. 2000). The backfill of the intertidal area adjacent to the Petitioner's high ground would violate state water quality standards because of the loss of wetlands and benthic habitat. Specifically, the backfill of the intertidal area violates state water quality standards because of the existence of a feasible alternative. In other words, the Petitioner has a feasible alternative of locating the bulkhead at the critical line. In addition, the backfill violates state water quality standards because it would result in the permanent elimination of the wetland area, which would likely produce cumulative negative impacts.

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. (Supp. 2000), and §§1-23-500 et seq. (Supp. 2000). Furthermore, S.C. Code Ann. § 48-39-150 (D) (Supp. 2000) specifically authorizes the Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

2. OCRM is the agency charged with the implementation of the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10 et seq. (Supp. 2000) and the regulations promulgated thereunder. Consequently, OCRM is the agency charged with issuing permits in coastal zone areas.

3. S.C. Code Ann. § 48-39-130(A) provides that "[n]inety days after July 1, 1977, no person shall utilize a critical area for a use other than the use the critical area was devoted to on such date unless he has first obtained a permit from the Department."

4. S.C. Code Ann. § 48-39-50 (Supp. 2000) provides the authority for DHEC to promulgate regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code. Pursuant to that authority, 23A S.C. Code Ann. Regs. 30-1 to 30-20 (Supp. 2000) were promulgated by the Coastal Council, the predecessor of OCRM. Those regulations govern the management, development, and protection of the critical areas and coastal zone of the state.

Regulation 30-12(G)(2)(a) provides that:

The creation of commercial and residential lots strictly for private gain is not a legitimate justification for the filling of wetlands. Permit applications for the filling of wetlands and submerged lands for these purposes shall be denied, except for erosion control, see R.30-12(C). . . .

Regulation 30-12(C) sets forth the specific standards for construction of bulkheads and revetments for tidelands and coastal waters. Specifically, Reg. 30-12(C)(1) requires that a bulkhead must conform to the critical area line set by the Department to the maximum extent possible. However,

a bulkhead may be constructed up to 18 inches from the existing escarpment. I conclude that the OCRM staff properly required the Petitioner to construct his bulkhead within these constraints.

8. 25A S.C. Code Ann. Regs. 61-101(F)(3) (Supp. 2000) provides, in part, that:

In assessing the water quality impacts of the project, the Department will address and consider the following factors:

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(b) whether there are feasible alternatives to the activity;

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(c) all potential water quality impacts of the project, both direct and indirect, over the life of the project including:

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(4) the cumulative impacts of the proposed activity and reasonably foreseeable similar activities of the applicant and others.

I conclude that the filling of an area of tidal and intertidal wetlands measuring 30' by 65' is contrary to these regulations. In addition, I find that the filling of the tidal wetlands will have definite negative cumulative impact in the Cherry Grove area.

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

ORDERED that OCRM's decision to issue permit number 00-1D-267-P, with special conditions, is hereby affirmed. However, it is my intent that the Petitioner has the benefit of the critical line as it existed on June 27, 2000. Therefore,

IT IS ORDERED that "Special Condition One" of the permit to read as follows:

Provided the 30' by 45' wetland area proposed for backfill is deleted and the bulkhead is placed on the critical area line. The critical area line shall represent the approximate location of the line on June 27, 2000 when OCRM biologist Mark Caldwell inspected this site.

IT IS FURTHER ORDERED that, upon receipt of this Final Order and Decision, OCRM flag and indicate the line as it existed on June 27, 2000. OCRM can rely on both the photographs submitted as Respondent's Exhibit 1, and on Mark Caldwell's memory of his investigation of the site.

AND IT IS SO ORDERED.

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Ralph King Anderson, III

Administrative Law Judge

June 20, 2001

Columbia, South Carolina

1. A bulkhead is a wooden structure, primarily used to protect high ground from erosion that occurs due to tidal fluctuations in the marsh.

2. Two property owners in Cherry Grove, Sam McQueen and Victoria Wooten, brought judicial actions against OCRM claiming that the inability to fill these tidal and intertidal areas resulted in an unconstitutional taking of their property. The S. C. Supreme Court, in Sam McQueen v. South Carolina Coastal Council, supra., and Victoria F. Wooten v. S. C. Coastal Council, 333 SC 469, 510 S.E.2d 716 (1999), upheld the OCRM regulatory prohibition against fill in tidal and intertidal wetlands. See 23A S.C. Code Ann. Regs. 30-12(G)(2)(a) (Supp. 2000). Additionally, the S. C. Supreme Court found that the application of this regulation did not amount to an unconstitutional taking.

3. An escarpment is the slope from the high ground to the lower critical area, created by erosion.