SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division ("ALJD" or "Division"), for a contested case hearing on the merits. The Petitioner applied with the Respondent, the South Carolina Department of Health and Environmental Control, ("DHEC") for a State Navigable Waters permit. The application proposed the construction of a pier, floating dock, boat lift, and the installation of a concrete boat ramp on and adjacent to the Intracoastal Waterway, Horry County, South Carolina. DHEC's Office of Ocean and Coastal Resource Management ("OCRM") certified that the proposed project was consistent with the Coastal Zone Management Program, with the exception of the proposed boat ramp. OCRM and DHEC imposed a special condition requiring that the unauthorized, existing dirt boat ramp be removed and that no other boat ramp be constructed. The Petitioner timely requested a contested case hearing before the Division, solely on the issue of whether the boat ramp should have been permitted.

After notice to the parties, a hearing before the ALJD was conducted on September 6, 2001, at the Division in Columbia. Upon review of the relevant and probative evidence and the applicable law, I find and conclude that Petitioner failed to show that no feasible alternative to a private boat ramp exists. Consequently, DHEC's denial of State Navigable Waters Permit for the construction of a private, concrete boat ramp is affirmed.

FINDINGS OF FACT

After reviewing the testimony and exhibits presented and taking into account the burden of

persuasion imposed upon the parties, I make the following findings of fact:

• The Petitioner, James Richardson, resides at 6034 Renata Lane, Myrtle Beach, South Carolina. He purchased the property in January of 2000.
• The Petitioner's property is located along the Intracoastal Waterway in Horry County, South Carolina. The record reflects that the Petitioner's lot had, at one point in time, consisted of tidal forested wetlands. Tidal forested wetlands are among the most unique and rare natural resources in the State. This type of forested wetland serves as a habitat for various bird, reptile, amphibian and invertebrate species. The wetlands also function as a control for storm water runoff and a buffer from navigational disturbances, such as large wakes that are created by boats moving through the area. Forested wetlands also provide erosion control through the existence of the extensive root systems.
• Located within a reasonable distance of Petitioner's lot are three public boat ramps.
• At some point prior to the Petitioner's purchase of the property, the site was cleared and trees were removed. However, aerial photographs admitted into evidence reveal that the property was forested as late as 1994. Photography also shows that this type of forested wetland is present on adjoining lots. After Hurricane Floyd damaged the timber on the property, Petitioner's next-door-neighbor burned and removed all remaining vegetation, including roots growing in a sandy cove, at the request of the property's previous owner.
• Subsequent to his purchase of the property, Petitioner constructed a dirt boat ramp on his property and drove pilings that extend into the water at mid- to high- tide. Because the current dirt boat ramp and existing pilings extend into public trust property; i.e., property extending below the mean high water mark, a permit is required from the Department. However, Petitioner did not seek any authorization from DHEC prior to performing this activity.
• Jeff Thompson, Wetland Coordinator for OCRM, visited the site and discovered the dirt boat ramp Richardson had constructed. Upon this discovery, Mr. Thompson informed the Petitioner that he must seek an after-the-fact permit for the dirt boat ramp and pilings.
• In addition to seeking approval to construct a concrete boat ramp in place of the dirt boat ramp, the Petitioner also applied for a permit to construct a fixed pierhead, boatlift and a walkway with a floating dock on his property. Because the site is located inside a critical area but outside of the coastal zone, the proposed construction required a State Navigable Waters permit from DHEC and a Coastal Zone Consistency Certification from OCRM.
• Mr. Thompson conducted the review of the permit application. At trial, Mr. Thompson was qualified as an expert in the areas of wetland biology and the functions and resources of wetlands, based on his education and professional experience. Mr. Thompson evaluated the application to determine whether the proposed activity was consistent with the Coastal Zone Management Program. In his review, Mr. Thompson considered it significant that the property had previously consisted of tidal forested wetlands, the most unique of all of South Carolina's wetland resources.
• In reviewing the project, Mr. Thompson evaluated the site and proposed project in order to determine whether there are feasible alternatives to the construction. He concluded that there are feasible alternatives to constructing the proposed concrete boat ramp. There are at least three public boat ramps within a reasonable distance of the Petitioner's property. Although it would not be as convenient to utilize those public areas, it certainly is feasible. Additionally, the Department authorized a boatlift to be constructed adjacent to the pierhead, which would serve the purpose of protecting the Petitioner's boat from being damaged from navigational wake in the waterway.
• Mr. Thompson also considered the potential cumulative effects of permitting this private boat ramp. He concluded that if this ramp were permitted, there could be many other boat ramp applications, which could damage the forested wetlands existing in the area, and could have negative environmental impacts on their unique resources.
• Mr. Richardson's neighbor, Will Rogers, testified that he has a concrete boat ramp. However, his boat ramp was constructed in 1970, prior to the enactment of the Coastal Zone Management Act. His ramp, therefore, did not require a Consistency Certification from OCRM. Since the enactment of the Act, the Department has consistently denied private boat ramps in the area.
• As for the other, existing private boat ramps in the vicinity, there is no evidence that the Department has authorized these boat ramps, or that they were not grandfathered; i.e., built prior to the enactment of the Coastal Zone Management Act.
• Based on these factors, Mr. Thompson concluded that the project was consistent with the policies of the Coastal Zone Management Program, but that the proposed concrete boat ramp was inconsistent and must be deleted.
• On April 19, 2000, the Department issued its Notice of Proposed Decision for P/N 2000-1E-147-C. The Department authorized the construction of a dock no more than 350 square feet in size. In addition, the Department also allowed for the construction of a four-foot wide walkway and an uncovered boatlift, the presence of which is not factored into the square footage limit. The requested boat ramp was denied based on the terms of the OCRM Consistency Certification.
• The Petitioner objected to the denial of the boat ramp essentially because of convenience: either Petitioner would have to moor his boat at the dock, which would likely result in wake damage to the boat, or Petitioner would have to drive several miles to a public dock each time he wished to use his boat.

CONCLUSIONS OF LAW

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

• 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). Pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 2000), the Division is authorized to hear contested cases arising under Chapter 39 of the 1976 Code.
• The standard of proof in a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dept. of Health & Env. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). Moreover, because it is the Petitioner who seeks a permit from DHEC, Petitioner bears the burden of proof in this contested case. Therefore, the Petitioner must show, by a preponderance of the evidence, that the proposed concrete boat ramp does not violate any provision of the applicable statutes and regulations.
• 23 S.C. Code Ann. Regs. 19-450.1 sets forth instances where a State Navigable Waters permit is required for a proposed project:

[A] permit issued by the Department of Health and Environmental Control is required for any dredging, building or construction or alteration activity in, on or over a navigable water or in the bed under navigable waters or in or on lands. All water is subject to a public navigational servitude under Article XIV Section 4 of the South Carolina Constitution.

• 23 S.C. Code Ann. Regs. 19-450.2 specifies those lands, which are subject to a navigational servitude: "Lands and waters subject to a public navigational servitude means those lands below the mean high water line and tidally influenced areas or below the ordinary high water mark of any non-titled navigable water of the State." I conclude that the proposed boat ramp will affect lands which are subject to a public navigational servitude, as defined in that Regulation; therefore, a Navigable Waters Permit is required for this proposed activity.
• Where there is a State Navigable Waters Permit required, OCRM must review the application to determine if it is consistent with the Coastal Zone Management Program. This requirement is set forth in 23 S.C. Code Ann. Regs. 19-450.5.
• The Coastal Zone Management Program and Final Environmental Impact Statement ("the Program Document") was created in 1979 by the South Carolina Coastal Council, predecessor to OCRM. It was drafted and approved by the General Assembly pursuant to S.C. Code Ann. § 48-39-80 (1976 & Supp. 2000). The Program Document sets forth standards that the agency uses in reviewing such projects. In particular, Section IV(B) addresses the policies applicable to boat ramps. Those policies are set forth as follows:

1). In the coastal zone, Council review and certification of applications for boat ramps will be based on the following policies:

• Filling of productive salt, brackish, or freshwater wetlands for boat ramp construction is prohibited unless no feasible alternatives exist in adjacent non-wetland areas. In addition, the amount of fill must be minimized.
• The following priorities are considered when justifying boat ramp location in sensitive areas:

i) public use- open to all citizens;

ii) restricted use-open only to citizens of a particular area or

organization;

iii) private use. (emphasis added).

A private boat ramp, therefore, is of the least important of the uses described in Section IV(B), and an application for such is subject to the most scrutiny. I conclude that the proposed private, concrete boat ramp would be located in an environmentally sensitive area due to the unique nature of the tidal-forested wetlands in the vicinity and the prior nature of the Petitioner's property, which has at least the potential to re-vegetate ⁽¹⁾.

• The Program Document requires that OCRM consider whether there are "feasible alternatives" to constructing such a boat ramp. I conclude that the Petitioner has not carried his burden of proof in showing that there are no existing feasible alternatives to the ramp's construction. To the contrary, there is ample evidence in the Record that the Petitioner can receive a permit to construct a boat lift and/or utilize public boat ramps located within a reasonable distance from the property ⁽²⁾.
• OCRM must also consider whether approval of a project will result in negative cumulative impacts. According to Chapter III, Section (C)(3), of the Guidelines for Evaluation of All Projects, OCRM must consider "the long-range, cumulative effects of the project, when viewed in the context of other possible development and the general character of the area." I find that allowing this boat ramp could have future, unacceptable impacts on the wetland resources in the area insofar as other property owners located near the Petitioner may be tempted to clear any forested tidal wetlands from their property without approval in the hopes of receiving a permit for a boat ramp similar to the one Petitioner seeks here.

Based on the foregoing, I conclude that the Department did not err in denying the construction of a boat ramp on the Petitioner's property. The Petitioner may not convert this public trust property for private use, where other reasonable alternatives exist and access to these waters has already been granted.ORDER

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department's decision regarding P/N 2000-1E-147-C is

affirmed as issued.

AND IT IS SO ORDERED.

__________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

February 6, 2002

Columbia, South Carolina

1. In several of the documents entered into the Record during the hearing, DHEC states with regard to Petitioner's property and his application, "[a]ll wetland areas outside of the dock site must be allowed to revegetate [sic] without interference by the applicant."

2. Although during cross-examination the Petitioner implied that he could not afford to construct a boat lift, the Petitioner offered no evidence regarding his ability (or inability) to gain access to the ICW in this manner.