ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This case arises out of the decision of Respondent South Carolina Department of Health and Environmental Control, Office
of Ocean and Coastal Resource Management (OCRM) to revoke a permit held by Petitioner Georgetown County
("County"). The permit, originally issued on February 8, 2001, authorized Petitioner to rehabilitate or repair a series of
four groins on the beach at Garden City, South Carolina. Based on the terms of the original permit, this rehabilitation
would include replacing timber piles, timber walers, and timber sheeting as necessary. On April 10, 2001, the County
submitted a request to OCRM for a modification of its permit. Under the proposed modification, the County would not
merely rehabilitate or replace the groins with similar structures, but would instead construct new groins in a different
configuration and with a different design and composition than the existing groins. After making this request, the County
completely removed the four groins at Garden City beach between May 5 and June 27, 2001.
During the pendency of the modification request, the South Carolina Court of Appeals issued its decision in South Carolina
Coastal Conservation League v. South Carolina Department of Health and Environmental Control, 345 S.C. 525, 548
S.E.2d 887 (Ct. App. 2001). In that case, the Court held that the Beachfront Management Act, S.C. Code Ann. §§ 48-39-250 et seq. (Supp. 2001), prohibits OCRM from issuing permits for the construction or reconstruction of new or existing
groins on South Carolina beaches. S.C. Coastal Conservation League, 345 S.C. at 542, 548 S.E.2d at 896. Consequently,
OCRM denied the County's permit modification request and revoked the County's original permit without providing the
County with an opportunity to respond. The County requested a contested case hearing before this tribunal to challenge
OCRM's decision to revoke its original permit.
As there are no material facts in dispute in this matter, the parties to this case consented to this matter being decided as a
matter of law and submitted a list of Stipulated Facts with exhibits. Oral arguments in this matter were heard at the
Administrative Law Judge Division in Columbia, South Carolina on February 12, 2002.
STIPULATED FACTS
The parties to this case have stipulated to the following facts:
1. In 1967 and 1969 the State of South Carolina, through its agency, the South Carolina State Highway Department,
constructed four groins on Garden City Beach, Georgetown County, South Carolina for the purpose of beach erosion
control and to protect State Highway 155 connecting Garden City Beach and Surfside Beach. Groins 1 and 2 were installed
in 1967 and groins 3 and 4 were installed in 1969.
2. While the length of groins 1, 2, 3 and 4 differ, the construction technique with regard to each groin was the same. On the
landward side of the groins, rip-rap was installed along the shoreline, creosote timbers were driven into the sand extending
into the ocean, and treated walers and sheet piles were installed with galvanized hardware to complete the groins. Groins 1
and 2 were 250' 6" long and groins 3 and 4 were 200' 9" long. The South Carolina State Highway Department plan and
profiles sheets of groins 3 and 4, which are representative of the construction techniques of all four groins, are attached
hereto as Exhibit 1.
3. The four groins were successful in retarding erosion on that portion of Garden City Beach immediately to the north, in
the middle, and to the south of the four-groin field. The location of the four groins is also depicted in Exhibit 1.
4. Over the years the groins began to deteriorate, leading to increased beach erosion in the vicinity of the groin field. There
are 29 property owners who own property adjacent to and between the four groins. A list of those property owners is
attached as Exhibit 2.
5. Prior to 1997, a portion of both Garden City and Surfside Beach received beach renourishment as part of a federal beach
renourishment project; however, no beach renourishment was conducted in the area of the four groins. This area began to
experience significant erosion along the front beach.
6. In 1999, because of erosion occurring in the area of the four groins, Georgetown County retained the services of Jon
Guerry Taylor, P.E., Inc. and authorized this consulting engineering firm to prepare a report detailing its recommendations
for controlling and retarding the ongoing erosion. On June 30, 1999, Jon Guerry Taylor, P.E., Inc. submitted a report styled
"Garden City Erosion and Beach Renourishment Study to Georgetown County." A copy of that report is attached as
Exhibit 3. The Jon Guerry Taylor report recommended that, due to the deteriorating condition of the four groins, they be
rehabilitated and that beach compatible sand be placed on the front beach of Garden City around and between the groins as
part of beach renourishment and erosion control in the affected area.
7. Georgetown County accepted the recommendations of Jon Guerry Taylor, P.E., Inc. and authorized it to obtain the
necessary permits in order to rehabilitate the four groins and to renourish the beach with beach compatible sand. The
location of the four groins and their relationship to the 29 affected property owners is shown on Exhibit 4 attached hereto.
8. Once authorized by Georgetown County, Jon Guerry Taylor, P.E., Inc. prepared the necessary design and construction
documents for groin rehabilitation and renourishment and began the process of obtaining an OCRM permit allowing the
four groins to be rehabilitated. Following the appropriate public hearings on the permit application and without objection
from any state or federal regulatory agency or any private citizen, the OCRM division of DHEC issued Georgetown County
P/N 00-1W-494-P, a copy of which is attached hereto as Exhibit 5.
9. After receiving P/N 00-1W-494-P and before any construction work on the permit was commenced, Georgetown County
sought a permit modification seeking to actually replace the four groins instead of rehabilitating them. The permit
modification was occasioned by the fact that the groins were so deteriorated that they needed to be replaced in order to
operate effectively and because replacement of the groins would aid the United States Army Corps of Engineers in their
beach renourishment within the groin field area. A copy of the letter seeking the permit modification is attached as Exhibit
6.
10. On April 19, 2001, the OCRM division of DHEC sent out a public notice concerning the county's proposed amendment
to P/N 00-1W-494-P. No objection or adverse comment was received by OCRM concerning the proposed amendment. On
May 5, 2001, the county began the removal of the four groins following notification of this work to the OCRM division. A
copy of the notification letter is attached as Exhibit 7. The removal of the four groins was completed prior to June 27,
2001. Laser prints of groins 1, 2, 3 and 4 prior to their removal and laser prints of the area of the groins after their removal
are attached hereto and combined as Exhibit 8.
11. On June 27, 2001, following the complete removal of the four groins, the OCRM division of DHEC notified
Georgetown County, through its consultant Jon Guerry Taylor, P.E., Inc., that it was not going to issue the permit
modification requested by the county, that P/N 00-1W-494-P was cancelled, and that no further work could be done by the
county. A copy of that letter is attached as Exhibit 9.
12. Reconstruction of the groin field would have taken between 60 to 90 days to complete.
13. Georgetown County received $1,000,000 from the State of South Carolina, through OCRM, to complete the groin
rehabilitation, removal, and rebuilding and beach renourishment project, and, to date, the county has expended $271,100 in
legal fees, surveying fees, engineering fees, and groin removal. The county's consulting engineering firm, Jon Guerry
Taylor, P.E., Inc., has completed over 80% of its work for the county and all that remains to be done is contract
construction management services in overseeing the groin replacement.
14. Since June 27, 2001 Jon Guerry Taylor, P.E., Inc. has incurred an additional $12,000 in expenses in looking for sand
resources for temporary renourishment, analyzing sand samples, meeting with representatives of OCRM, and preparing
their initial appeal documents. Additionally, since June 27, 2001, Georgetown County has done some temporary sand
scraping in the area of the four removed groins in order to protect both public and private property.
15. The county has also been required to place 6000 cubic yards of sand as temporary erosion control in the area where
groins 1, 2 and 3 were to be reconstructed. The final cost of this sand placement was $40,000.
16. Severe erosion has occurred in the groin field area since September 2001. Laser prints depicting this erosion are
attached as Exhibit 10.
17. Since September 1, 2001, two bulkheads protecting front beach homes have failed in the area between groins 1 and 2
and these properties are currently threatened by severe erosion.
DISCUSSION
There are essentially two questions that must be answered to determine whether the County is authorized to replace the four
groins it removed from Garden City beach:
(1) Did OCRM properly revoke the County's original permit to rehabilitate the four groins at Garden City beach?
(2) If the permit was not properly revoked, did its terms allow the County to replace the four groins it has already
completely removed?
With regard to the first issue, the County argues that OCRM failed to follow the procedures required by the South Carolina
Administrative Procedures Act (APA) and its own regulations when it revoked the County's permit. Therefore, as
OCRM's attempt to revoke the permit was improper and ineffective, the County contends its original permit must be
reinstated. I agree.
Permit revocations under the APA are governed by S.C. Code Ann. § 1-23-370(c) (1986). That section provides as
follows:
No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency
proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the
licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the
agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that
effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action.
These proceedings shall be promptly instituted and determined.
Id. Section 1-23-370(c) clearly contemplates that an agency intending to revoke a permit it issued would first send notice
to the permittee of its intention and then give the permittee an opportunity to respond before the actual revocation occurs.
The second sentence of Section 1-23-370(c), which allows for the summary suspension of licenses in emergency situations,
only serves to underscore the fact that this three-step approach-i.e., notice, opportunity to respond, agency action-is the
standard method of permit revocation under the APA. This revocation procedure was also incorporated into the express
terms of the County's permit. (See Stipulation of Facts, Ex. 5, at 3.) (1)
Beyond the APA, OCRM's own regulations require it to give a permittee notice of the intent to revoke its permit and an
opportunity to respond to the proposed revocation before the actual revocation of the permit. Under OCRM's regulations,
If a determination is made by [OCRM] that there are sufficient grounds for revocation of the permit, [OCRM] shall follow
the following procedure:
(1) The permittee shall be notified by [OCRM] of the grounds for revocation of the permit by certified letter or personal
service.
(2) The permittee must respond in writing to the written allegations of [OCRM] within 20 days of receipt of the Notice of
Intent to Revoke . . . .
S.C. Code Ann. Regs. 30-8A (Supp. 2001). In the case at hand, OCRM did not follow the procedures set forth in Section
1-23-370(c), the County's permit, and Regulation 30-8A when it purported to revoke the County's original permit. OCRM
did not send the County notice of its intent to revoke the permit and did not give the County an opportunity to respond to
the proposed revocation before it revoked the permit. Rather, OCRM summarily declared the County's permit to be invalid
and informed the County that it could appeal the decision to this tribunal. (Stipulation of Facts, Ex. 9.) Moreover, the
situation surrounding the revocation of the County's permit did not present a threat to public health, safety, or welfare that
would allow for the summary suspension of the permit under Section 1-23-370(c). Thus, as OCRM's revocation of the
County's original permit did not comport with Section 1-23-370(c), the terms of the permit, or Regulation 30-8A, the
revocation was unlawful and ineffective. Accordingly, the County's permit must be reinstated.
However, it remains to be determined just what that permit authorized the County to do. The County argues that the
original permit allowed the County to completely reconstruct the four groins at Garden City beach if such reconstruction
was necessary due to the deterioration of the existing groins. OCRM contends that the permit only allowed for the repair of
the groins, and not for the wholesale removal and reconstruction of the groins. Thus, to OCRM, the County's decision to
completely remove the old groins and construct new ones in their place was beyond the terms of the permit and calls for
work not authorized under the permit. I find, however, that the County's original permit did grant the County the authority
to reconstruct the groins in their entirety and to complete the work it seeks to undertake.
Permit Number 00-1W-494-P was issued to the County on February 8, 2001. (Stipulation of Facts, Ex. 5.) The
"Description of the Project" authorized by the permit reads as follows:
The plans submitted by you, attached hereto, show the work consists of repairing four existing groins by replacing the
decayed timber piles and wales with new treated timbers and the decayed timber sheeting with new aluminum or steel
sheeting. Riprap will be placed along the sides of the groins to minimize erosion from scouring. Riprap will also be used
to connect groins three and four to the existing dune line. 110,000 cubic yards of sand will be placed on the beach in the
area of the four dunes. The purpose of the proposed activity is to prevent erosion of public and private beachfront property
and to restore access to the public beach.
(Stipulation of Facts, Ex. 5, at 1) (emphasis added). Clearly this permit contemplates more than simply shoring up the
existing groin structure. Rather, it provides for the repair of the groins by replacing as much of the groins as is necessary to
remedy any deterioration. This concept of "repair by replacement" is further emphasized in the plans attached to, and
incorporated by reference into, (2) the permit. The "Notes" to a drawing of the cross-sections of the existing groins and the
repaired groins provide that:
1. Existing timber piles with extensive corrosion shall be replaced.
2. Existing timber walers shall be replaced.
3. Existing timber sheeting shall be replaced with new aluminum or steel sheeting.
(Stipulation of Facts, Ex. 5, at 6.) Under these specifications, every timber waler in the groins was to be replaced with a
treated timber waler, all of the timber sheeting in the groins was to be replaced with metal sheeting (either aluminum or
steel), and any decayed timber pile in the groins was to be replaced with a treated timber pile. Further, these "repaired"
groins were to be significantly longer than the original groins, with two groins doubling in length after their repair.
(Compare Stipulation of Facts, Ex. 5, at 4 with Stipulation of Facts, Ex. 5, at 8.) (3)
Plainly, then, the County's original permit authorized more than the piecemeal repair of certain decayed timbers on the four
groins at Garden City beach. Instead, these groins were to be repaired by replacement. (See Stipulation of Facts, Ex. 5, at
1, "Description of the Project".) Under the permit, the "repaired" groins would not only contain entirely new walers and
piles of treated timber in place of the decayed timber of the original groins, but would also be constructed of different
materials from the original groins (e.g., metal sheeting in place of the original timber sheeting) and would be substantially
longer than the original groins. The only limitation imposed by the permit on the extent to which the County could
completely reconstruct the groins was that the timber piles of the groins would only be replaced "as necessary" due to
corrosion. (Stipulation of Facts, Ex. 5, at 6.) However, OCRM does not contend that the County violated this limitation
when it removed the original groins, including their timber piles. See supra Stipulated Fact #9 ("[T]he groins were so
deteriorated that they needed to be replaced in order to operate effectively . . . ."). Further, OCRM's argument that the
County's permit modification request implicitly recognized that the removal and reconstruction of the groins was not
authorized by its original permit must fail. For, while the modification request did redundantly seek authorization for some
actions already allowed under the original permit, (4) the primary modifications sought were for actions not authorized by the
original permit. (5) Thus, notwithstanding OCRM's denial of the permit modification, the County was authorized under the
terms of its original permit to remove the four groins in their entirety and to replace them with new structures.
ORDER
IT IS THEREFORE ORDERED that this matter is REMANDED to OCRM to reinstate the County's original permit,
P/N 00-1W-494-P.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
March 6, 2002
Columbia, South Carolina
1. In its "General Conditions," the permit reads, in relevant part: "Prior to the revocation, suspension, or modification of
this permit, [OCRM] shall provide written notification of intent to revoke to the permittee, and permittee can respond with
a written explanation to [OCRM]. (South Carolina Code Section 1-23-370 shall govern the procedure for revocation;
suspension or modification herein described)." (Stipulation of Facts, Ex. 5, at 3.)
2. See Stipulation of Facts, Ex. 5, at 2.
3. Under these plans, Groin One would grow in length from 173 feet to 200 feet, Groin Two from 112 feet to 200 feet,
Groin Three from 76 feet to 200 feet (with riprap), and Groin Four from 89 feet to 200 feet (with riprap). (Stipulation of
Facts, Ex. 5, at 4, 8.)
4. For example, the modification request sought permission to completely remove the deteriorated portions of the groins
(Stipulation of Facts, Ex. 6, at 1), an action already allowed under the original permit. (Stipulation of Facts, Ex. 5, at 1.)
5. For example, under the modification request, the new groins would be constructed utilizing a "change to the proposed
groin cross section" found in the original permit, would "be offset horizontally 5' to 10' from the existing groin
alignments," and would differ in length from the specifications of the original permit (Groins One and Two would be
lengthened and Groin Four would be shortened). (Stipulation of Facts, Ex. 6.) |
