ORDERS:
ORDER AND DECISION
This matter comes before me upon petition for a contested case hearing de novo pursuant to S.C.
Code Ann § 48-39-150 and §§ 1-23-310, et seq. (1994), regarding Petitioner's application for a
permit to construct a rock revetment on lot 328, South Dogwood Drive in Garden City, Horry
County, South Carolina. The South Carolina Department of Health and Environmental Control,
Office of Ocean and Coastal Resource Management, ("OCRM") issued a permit with the
condition that the revetment be constructed in accordance with Attachment A to the permit.
Petitioner sought a hearing for consideration that he be permitted to locate the revetment on his
lot in conformity with revetments on adjacent lots. A hearing was conducted on October 2, 1995.
The permit, as issued by OCRM with conditions, is granted and Petitioner's request for an
amendment is denied.
DISCUSSION
Petitioner seeks a permit to construct, among other things, a 100 linear foot rock revetment
across 328 South Dogwood Drive, adjacent to Murrells Inlet, Garden City, South Carolina. The
purpose of the proposed activity is for erosion control. Only that portion of the permit dealing
with the rock revetment on lot 328 is contested by the Petitioner. OCRM opposes construction
of the rock revetment as requested by the Petitioner. Therefore, OCRM issued the permit subject
to the special condition that the revetment be located along the critical area line. OCRM relies
primarily on 23A S.C. Code Regs. 30-12(C)(1)(a) (Supp. 1994), which provides that revetments
"must be designed to conform to the existing shoreline (upland boundary)."
The basic policy of the State of South Carolina is "to protect the quality of the coastal
environment and to promote the economic and social improvements of the coastal zone and of all
the people of the State." S.C. Code Ann. § 48-39-30(A) (Supp. 1994). OCRM regulations were
promulgated to provide a management framework from which the competing interests of
development and environmental protection can be balanced.
OCRM has permit authority over the coastal waters and tidelands and the authority to designate
the approximate geographic extent of the critical area. Tidelands critical area under OCRM
jurisdiction is defined as "all areas which are at or below mean high tide and coastal wetlands,
mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral
part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows
and means those areas periodically inundated by saline waters . . . and those areas that are
normally characterized by the prevalence of saline water vegetation capable of growth and
reproduction." S.C. Code Ann. § 48-39-10(G) (Supp. 1994).
Petitioner's lot falls within the definition of tidelands over which OCRM has permitting
jurisdiction. Petitioner testified that even though the permitted revetment cuts off part of his lot
he can still build a house, just not the one that he wanted to build.
Petitioner argues that locating the revetment as permitted by OCRM will cause problems for
adjacent home owners and will not allow him to locate his home in line with other adjacent
houses. He further argues that the elevation of his lot was altered by the use of heavy equipment
to remove debris and that the water rises to the same level on his lot as on 330 S. Dogwood,
which was granted a revetment at the requested location.
Testifying in support of moving the location of the revetment was Petitioner, James W. DeBruhl.
Testifying in opposition to changing the location of the revetment was Mark A. Caldwell,
Regional Permit Coordinator. Hand drawn maps, aerial photos, pictures and slides of the
surrounding area, as well as other documents from OCRM were submitted as exhibits by the
parties.
Upon a deliberate review of the evidence on the individual merits of this case and the applicable
law, it is my conclusion that the critical area delineation of Petitioner's lot, as determined by
OCRM, correctly marks jurisdictional critical area tidelands. Further, Petitioner did not offer any
credible evidence to establish that the critical area tidelands delineation is other than that proffered
by OCRM. Accordingly, the special condition of the permit requiring the revetment to be placed
along the critical area line in accordance with Attachment A of the permit is proper and
Petitioner's request for an amendment to the permit is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
1. Petitioner is the owner of 328 South Dogwood Drive, Garden City, Horry County, South
Carolina. The lot measures 50 by 175 feet.
2. Petitioner applied to OCRM for a permit to construct a 4' by 30' walkway leading to a 12'
by 12' fixed dock. A 4' by 8' ramp will lead from the fixed dock to a 10' by 24' floating dock. In
addition, a 100 linear foot rock revetment has been approved for construction across 328 and 330
South Dogwood Drive. The purpose of the proposed activity is for the applicant's private,
recreational use as well as erosion control.
3. The application was placed on public notice, no objections were received, and a permit was
issued by OCRM to Petitioner and the owner of lot 330 on July 6, 1995, allowing for the
construction of a walkway, pierhead, floating dock and rock revetment. All of the permitted
activity but the location of the rock revetment on lot 328 was accepted by the applicants.
4. The single issue on appeal is the location of the rock revetment on lot 328.
5. Petitioner purchased 328 South Dogwood in the spring of 1995.
6. South Carolina's Coastal Zone Management Act was enacted in 1977.
7. At the time of purchase, Petitioner was aware that a portion of the lot was flooded during
periods of high tide. Petitioner further testified that the water comes up
to the currently approved revetment line at extreme high tides.
8. An area approximately 35' wide and 25' deep on lot 328 and adjacent to Murrells Inlet is 18
to 24 inches lower than the lots on either side.
9. OCRM is the state agency authorized to determine the geographic location of the critical
area line which delineates jurisdictional tidelands. Coastal wetlands are normally characterized by
the prevalence of saline water vegetation capable of growth and reproduction.
10. OCRM's witness, Mark Caldwell, has a degree in Biology with a marine emphasis and a
Masters of Science degree. As Regional Permit Administrator, Mr. Caldwell reviews
approximately 100 critical area permits a year most of which involve delineating the critical area
line.
11. Mr. Caldwell performed a site inspection on July 6, 1995, and determined that the
requested activity was within the critical area. He further concluded that a majority of the lot in
question was characterized by salt tolerant vegetation, including Distichlis, Borrichia, Salicornia,
Limonia, and Spaffina.
12. A critical area line rarely runs in a straight line. In some areas, such as this, there is a
gradual change in vegetation from marsh to upland species. Mr. Caldwell determined that the
prevalence of salt water vegetation was towards the inlet and ran along a slight rise in elevation.
The rise in elevation runs from the water towards the street and corresponds with the permitted
location of the rock revetment.
13. Approximately 60 lots, Petitioner's lot being one, were created by dredging material from
Murrells Inlet prior to 1977. Most of the surrounding properties have revetments or bulkheads.
While the evidence indicated that revetments had been repaired after Hurricane Hugo, there was
no evidence which indicated that new rock revetments had been constructed since 1977.
14. Most of the surrounding properties also experience sporadic flooding during periods of high
tides or large amounts of rainfall. There was no evidence to support Petitioner's claim that by
relocating the rock revetment to the permitted location his neighbors would suffer any additional
flooding on their property.
15. Petitioner's house can be situated on his lot so that it will be approximately the same
distance from the street as other adjacent houses.
16. The grade elevation of Petitioner's lot may have been altered by the use of heavy equipment,
but this occurred prior to his purchase of the property.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the Administrative Law
Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 48-39-150 (Supp. 1994) grants jurisdiction to the Administrative Law
Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code, as
amended.
3. Respondent OCRM is the state agency charged with implementing the State of South
Carolina's coastal zone policies. S.C. Code Ann. § 48-39-30 (Supp. 1994) sets out these policies.
4. "Controlling and restricting the filling of wetlands is clearly within the scope of the State's
police power, as the legislature enacted the Coastal Zone Management Act in response to its
recognition of the detrimental effect the uncontrolled use of coastal wetlands would have on the
public welfare." Carter v. South Carolina Coastal Council, __ S.C. __, 314 S.E.2d 327 (1984).
5. Petitioner's property clearly falls under the definition of tidelands critical area and is defined
as "all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar
areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine
systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those
areas periodically inundated by saline waters whether or not the saline waters reach the area
naturally or through artificial water courses and those areas that are normally characterized by the
prevalence of saline water vegetation capable of growth and reproduction. . . . Further, until such
time as the exact geographic extent of this definition can be scientifically determined, the
Department shall have the authority to designate its approximate geographic extent." S.C. Code
Ann. § 48-39-10(G) (Supp. 1994).
6. OCRM has the authority to determine whether an area constitutes a definitional critical area.
Grant v. South Carolina Coastal Council, Op. No. 24302 (S.C. Sup.Ct. filed August 21, 1995).
7. The definitional critical area is determined by a predominance of salt water vegetation
capable of growth and reproduction. When this method does not yield a definitive answer, tidal
elevation and elevation changes on the property are used to determine the critical area line.
8. OCRM has promulgated specific project standards for bulkheads and revetments in tidelands
critical areas which provide that "[s]tructures must be designed to conform to the existing
shoreline (upland boundary), to the maximum extent feasible, and constructed so that reflective
wave energy does not destroy stable marine bottoms or constitute a safety hazard." S.C. Code
Regs. 30-12(C)(1)(a) (Supp. 1994).
9. Considering the totality of the evidence submitted relevant to making a determination of the
critical area line, I conclude adequate grounds exist to uphold the agency's conclusion that the line
runs along a slight elevation rise on Petitioner's property and is the upland boundary to which the
revetment must conform. This line is currently diagramed as Attachment A to the issued permit
and is approximately 116' from South Dogwood Drive.
ORDER
Based upon the above Findings of Fact, Discussion and Conclusions of Law, it is hereby:
ORDERED that the special condition requiring Petitioner to construct the rock revetment in
accordance with Attachment A of the permit be granted as issued and Petitioner's request for an
amendment to the permit is denied.
AND IT IS SO ORDERED.
_________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
November ____, 1995
Columbia, South Carolina |
