ORDERS:
DECISION AND ORDER
This matter comes before me pursuant to the South Carolina Department of Health and
Environmental Control's, Office of Ocean and Coastal Resource Management (OCRM), denial of
Douglas McAdam's permit application to construct a single-use dock to the waters of Shem
Creek in Mt. Pleasant, South Carolina. A hearing into this matter was held on December 19,
1995, at the Charleston County Judicial Building.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, considering the burden of persuasion by the Parties, I make the following Findings of
Fact by a preponderance of evidence:
(1) The Petitioner currently has a dock extending from his property to a shallow tidal creek that is
dry 50 percent of the time. The Petitioner seeks to construct a dock across that tidal creek to the
waters of Shem Creek. However, DHEC has determined that creek to be "navigable."
(2) The Petitioner's current pierhead almost totally blocks the path of the tidal creek in which it is
located. In fact the tributary that the Petitioner seeks to cross ends close to the edge of his
property line less than 100 feet upstream. Therefore, the Petitioner's dock as it presently exists,
substantially reduces navigation in this tributary of Shem Creek.
(3) The Petitioner's upstream neighbors have consented in writing to the issuance of this permit.
(4) By removing the existing dock and bridging this small tributary, the navigability of the
tributary will be improved.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
(1) The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant
to S.C. Code Ann. §§1-23-600 and 1-23-310, et seq. (Rev. 1986 & Supp. 1995).
(2) S.C. Code Ann. §48-39-150 (Supp. 1995) authorizes the Administrative Law Judge Division
to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
(3) OCRM is charged with carrying out the State's coastal zone policies and issuing permits for
docks and piers in coastal zone areas.
(4) S.C. Code Ann. §48-39-50 (Supp. 1995) provides the authority for OCRM to promulgate
regulations relating to carrying out the provisions of Chapter 39, Title 48 of the 1976 Code.
(5) S.C. Code Regs. 30-1 through 30-20 (Supp. 1995) were promulgated by the Coastal Council
and OCRM, as the applicable regulations governing the management, development, and
protection of the coastal zone areas of the state.
(6) S.C. Code Regs 30-12 (Supp. 1995) sets forth the permit application process and
requirements for dock construction permits issued by OCRM. Specifically, Regs. 30-12(A)(2)(n)
states that "[d]ocks must extend to the first navigable creek. . . ." The intent of that regulation is
to preserve navigation in small tidal creeks for the recreational use of the public. That intent is
fulfilled by the construction of the Petitioner's dock as proposed in Respondent's Exhibit 4 on
pages 10 and 11.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that permit OCRM-95-241 be granted.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
March 18, 1996 |
