South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Paul Deaton et al. vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Paul and Lisa Deaton and Myles Glick

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, and William Jordan

Intervenor:
W.C. Wise, Nancy Wise, Neal Baker, Elizabeth Baker, Joe Gessner, Rita Mercier, Max Hellman, Ann Hellman, Ed Arrington, Bridget Arrington, Ken Goodman, Marion Goodman, Paul Baron, Lisa Baron, Norman Belinsky, Eve Berlinsky, Nathan Rephan, Judy Rephan, Richard Silver, Dunlap Silver, Richard Friedman, Vivian Friedman, Neda Nussbaum, Daniel Nussbaum, Alan Nussbaum, Martin Appel, Eve Appel, Donny Schaeffer, Sunday Schaeffer, William Ladue, Leah H. Ladue, Howard Sherman, Jimmy Lucas, Ruth Lucas, Edward Morrison, Sarah Morrison, Leah Pinosky, Arron Pinosky, Nancy Banov, Alan Tanenbaum, Bernard Arnold, Sallie Arnold, Katherine Glick, Aaron Glick, Milton Lombard, Linda Lombard, Herb Rosner, Marc Levy, Jill Levy, Rachel Reyser, RV Lanford, Allison Lanford, Solomon Kirshstein, Howard Hoffman, Larry Lipov, Jan Pearlstine-Lipov, Myron Perlitz, Sandra Lipton, Morey Lipton, Louise Kirshstein, Sally Weil, Douglas Alterman, Marsha Alterman, and Ross Berman
 
DOCKET NUMBER:
01-ALJ-07-0048-CC

APPEARANCES:
W. Andrew Gowder, Esquire, for the Petitioners

Mary D. Shahid, Esquire, for Respondent OCRM Respondent William Jordan, Pro Se

Intervenors Dr. Edward Morrison, Neal Baker, and Howard Sherman, Pro Se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



William Jordan (Respondent Jordan) filed an application with the Office of Ocean and Coastal Resource Management (OCRM) for a permit to construct a dock to Wappoo Creek. Access is sought by means of a private dock at 0 Devil's Elbow, Charleston, Charleston County, South Carolina. On January 2, 2001, OCRM granted the requested permit. The Administrative Law Judge Division (ALJD) received notice that Paul and Lisa Deaton and Myles Glick (Petitioners) opposed the permit and sought a contested case hearing pursuant to S.C. Code Ann. §48-39-150 and §1-23-310, et seq. (1986 & Supp. 2000). Subsequently, the above- listed Intervenors sought to intervene, opposing the issuance of the permit. Their intervention was allowed. At the trial, the parties stipulated that all of the Intervenors need not testify to present their cases, but that the testimony of the Petitioners and Intervenors presented would be the testimony of all parties opposing the issuance of the permit.

The Petitioners and the Intervenors argue that the permit should be denied on the grounds that building the structure is inconsistent with the regulations governing docks, particularly those prohibiting crossing a navigable creek having a defined channel (Regs. 30-12(A)(2)(n) (Supp. 2000)), building in the critical area (Regs. 30-1(B) and (C)), a state statute prohibiting the blocking of navigable streams (S.C. Code Ann. §49-1-10) and the state constitution (S.C. const. Art. XIV, Sec. 4 (1976)). OCRM and Jordan argue that none of the regulations warrant denying the permit. Specifically, they argue that Jordan's dock as permitted will not cross any creek with a significant change in grade with the surrounding marsh. While OCRM admits that the tributary is navigable, OCRM maintains that the tributary does not have a significant change in grade and is, therefore, "a mud flat", not a "creek" with a defined channel.

After considering the evidence and applicable law, I conclude the permit must be denied.

FINDINGS OF FACT

I find, by a preponderance of the evidence, the following facts:

1. Jordan seeks access to Wappoo Creek by means of a private dock at 0 Devil's

Elbow, Charleston, Charleston County, South Carolina.

2. Jordan's permit application does not show the walkway for the dock crossing any

waterways. His drawing attached to the application shows the dock extending from the mainland from the critical line, roughly 100' from the edge of the marsh grass.

3. Jordan's permit seeks a dock length of 990 feet.

4. On January 2, 2001, OCRM granted the requested permit, with the special

conditions that the walkway does not exceed 900 feet in length, that it be sited at a particular location and that handrails be constructed as required by the Southern Building Code.

5. In illustrating the specific location of the dock, OCRM attached a drawing to the

permit which did show the walkway extending from the mainland across the waterway to a small hummock, and then across that small island to Wappoo Creek. OCRM, labels the waterway that is crossed by the walkway a "mud flat."

6. The Deatons, Glick and the Intervenors are property owners who live in the

vicinity of the applicant's permitted dock and who regularly use the waterway that will be crossed by that permitted dock. I find that the Petitioners and Intervenors have standing to bring this contested case hearing.

7. The dock permitted by OCRM requires approximately 430 feet to reach a

waterway. The waterway crossed by the walkway for the permitted dock is used for pleasure

boating. The waterway crossed by the walkway for the permitted dock is filled with water

at least one and one-half hours on either side of high tide.

8. The waterway crossed by the walkway for the permitted dock is navigable. The

undersigned judge viewed a videotape showing that the creek can be navigated by a medium- sized motor boat from the mouth of the Wappoo Creek up into the tributaries where the Petitioners' homes are located.

9. The waterway crossed by the walkway for the permitted dock empties and fills

with the ebb and flow of the tide.

10. The waterway crossed by the walkway for the permitted dock demonstrates a

channel accompanied by a significant change in grade. This change in grade is shown in photographs in evidence, taken at low tide, showing the bottom of the creek is marked by a visible, defined channel. The channel in the creek is, furthermore, shown clearly and unequivocally in the aerial photograph in evidence. Regardless of the differing opinions of the surveyor experts of whether the changes in measurements were "significant," there is no question but that the measurements show a clearly defined channel.

11. The waterway crossed by the walkway for the permitted dock is the first navigable

creek.

CONCLUSIONS OF LAW

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

1. The Administrative Law Judge Division has subject matter jurisdiction in this

matter pursuant to S.C. Code Ann. Sec. 48-39-150 (Supp. 2000) and the Administrative Procedures Act, S.C. Code Ann. §1-23-310, et seq. (1986 & Supp. 2000), specifically, §1-23-600(B) (Supp. 2000).

    1. 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).

    1. Under S.C. Code Ann. §48-39-50(G)(Supp. 2000), OCRM is charged

with denying or approving permits for proposed activities within the coastal zone. Further, § 48-39-50(E) authorizes DHEC to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code. In this regard, the Coastal Council (the predecessor agency to OCRM) promulgated 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 2000), which are currently administered by OCRM in governing the management, development and protection of the coastal zone.

4. One of these considerations is the extent to which the proposed activity would

harmfully obstruct the natural flow of navigable water. S.C. Code Ann. §48-39-150(A)(2) (Supp. 2000); 23A S.C. Code Ann. Regs. 30-11(B)(2) (Supp. 2000). The rights of the public in navigable waters originated in common law. State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884 (1909). The South Carolina Constitution preserves the common law rights of the public in navigable water: "[a]ll navigable waters shall forever remain public highways free to the citizens of the State and the United States . . . ." S.C. Const. Art. XIV, Sec. 4 (1976).

Further, S.C. Code Ann. §49-1-10 (1987 and Supp. 2000) provides that:

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 . . . . If any person shall obstruct any such stream . . . such person shall be guilty of a nuisance and such obstruction may be abated as other public nuisances are by law.



A waterway is navigable if it has the capacity for "valuable floatage". 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). The requirement for valuable floatage is satisfied even where the sole use of the waterways is by pleasure boats. Id.

In Medlock, the protected canals and ditches were originally dug by rice planters and over the years they had become navigable and were used by the public. The Court stated that these passageways had become the functional equivalent of natural streams. Medlock, 346 S.E.2d at 718. In the case at hand, it is undisputed that floatage in small boats is possible in the creek.

Further, the Court of Appeals of South Carolina has stated that the test of navigability is "whether it is accessible at the ordinary stage of the water." See Hughes v. Nelson, 303 S.C. 102, 399 S.E.2d 24 (Ct. App. 1990) (addressing whether a privately dug canal constituted a public navigable water). The fact the waterway cannot sustain traffic at all times is not controlling since a waterway is navigable so long as it is accessible at the "ordinary stage" of the water. Id. 5. Although the State's authority to allow the obstruction of a navigable waterway is limited by the South Carolina Constitution and S.C. Code Ann. §49-1-10, the State has authority to allow such an obstruction when justified by an overriding public interest. See Manigault v. Springs, 26 S.Ct. 127 (1905) (holding that South Carolina constitutional provision protecting navigable waters does not interfere with common law powers of the State over its navigable waters, including the sovereign right of the government to protect the general welfare of its citizens); State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986) (implying that overriding public interest may authorize the blockage of a navigable waterway). Hence, OCRM has the authority to permit the blockage of a navigable waterway if such activity would promote an overriding public interest. There is no evidence in the record that allowing Petitioner to bridge the creek would support an overriding public interest. See Sierra Club v. Kiawah Resort Ass'n, 318 S.C. 119, 456 S.E.2d 397 (1995) ("[T]he relevant inquiry is whether the [proposed activity would] substantially impair the public interest in public trust lands and waters."). On the contrary, such bridging would individually benefit Petitioner and impair the interests of his neighbors, as well as potentially those of the public at large.

6. Furthermore, Reg. 30-12(A)(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. 30-12(A)(2)(n) (emphasis added). The creek to be crossed by the walkway is the closest waterway and is thus "first" within the meaning of S.C. Code Regs. 30-12(A)(2)(n). (1)

ORDER



Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:

OCRM is ordered to deny the request for a dock permit sought by Jordan to construct access to Wappoo Creek by means of a private dock at 0 Devil's Elbow, Charleston, Charleston County, South Carolina.



AND IT IS SO ORDERED.





CAROLYN C. MATTHEWS

Administrative Law Judge



January 14, 2002

Columbia, South Carolina

1. Respondent OCRM cites Donald R. Johnson, II v. SDCHEC-OCRM and Richard Holgate, ALJ Docket #00-ALJ-07-0228-CC, to bolster its argument. I find this case unpersuasive as to its holding because the creek in Johnson was found to be non-navigable and the evidence as to "significant change in grade" was different. However, Johnson contains an interesting point about the relationship between navigability and a portion of the OCRM regulation. "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." Johnson at p. 7 (fn. 1).


Brown Bldg.

 

 

 

 

 

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