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:
The Cusabo Company, LLC vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
The Cusabo Company, LLC

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management
 
DOCKET NUMBER:
96-ALJ-07-0188-CC

APPEARANCES:
Suzanne Schwank, Pro Se for Petitioner

John P. Kassebaum, II, Esq., for Respondent
 

ORDERS:

ORDER

I. Statement of the Case

The Cusabo Company, LLC, (Cusabo) filed an application on December 12, 1995 with the Office of Ocean and Coastal Resource Management (OCRM) for a permit to construct a walkover footbridge and community dock to access Lucy Point Creek. OCRM granted the dock permit but imposed seven conditions. Two of those conditions, prohibiting a wooden walkover footbridge over a tidal slough, and shifting the proposed community dock to the north to avoid blocking the mouth of the adjacent tidal slough, are challenged by Cusabo. An order issued after the July 8, 1996 hearing directed the production of additional evidence. That evidence was received, not objected to, and is now part of these proceedings. Finally, a supplemental hearing on September 12, 1996 allowed the parties to further explain their positions.

Jurisdiction lies with the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 48-39-150 (Supp. 1995) and § 1-23-310 et seq. (Rev. 1987 & Supp. 1995). I find the construction of a bridge over the tidal slough should not be prohibited. However, I find the community dock must be moved five to eight feet in order not to block the mouth of the slough.

II. Issues

1. Is the construction of a footbridge over a tidal slough properly prohibited because Cusabo has alternative routes available that do not require the crossing of a tidal slough?

2. Is a movement of five to eight feet of the location of the community dock necessary to insure unimpeded navigation?

III. Analysis

A. Alternative Routes

1. Positions of Parties:

Cusabo seeks a permit to construct a community dock to access Lucy Point Creek. Access, in Cusabo's view, can only be obtained by constructing a footbridge across a tidal slough. OCRM, on the other hand, asserts two alternative routes (one across lot 9 and the second across lot 8) are available to access Lucy Creek with neither route requiring a footbridge over a critical area. Cusabo disagrees by arguing the route across lot 9 is unavailable since the property through which the route passes is owned by Richard and Suzanne Schwank (the Schwanks) who have refused an easement or access across their property. Further, the second route across lot 8 is not compatible with the development plan of Cusabo. In reply, OCRM dismisses Cusabo's concern about both routes since the Schwanks created Cusabo as a "legal fiction to generate measurable maximum dollar benefits at the expense of the public."

2. Findings of Fact:

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

1. Cusabo is a domestic limited liability company formed on May 5, 1995.

2. Cusabo is registered with the Secretary of State as a limited liability company.

3. Richard H. Schwank and Suzanne W. Schwank are the only members of Cusabo.

4. On May 25, 1995, Cusabo executed a contract to purchase real property from the Schwanks.

5. Under the May 25, 1995 contract, Cusabo agreed to purchase Lot A of District 200, Map 6, Parcel 78E as depicted on a map attached to the contract.

6. Under the May 25, 1995 contract, Cusabo agreed to construct a community dock on Lot A, at a point of land southwest of the tidal slough, but if no permit could be obtained for that location, the Schwanks agreed to sell and Cusabo agreed to purchase a .025 acre triangular-shaped portion of Lot B on Lucy Point Creek for use by Cusabo to construct the community dock.

7. Under the May 25, 1995 contract, Cusabo did not acquire the right to secure an easement across property owned by the Schwanks.

8. Cusabo received a deed to Lot A on October 26, 1995 with the dimensions of Lot A depicted on a plat recorded in Beaufort County on October 31, 1995.

9. After the October 26, 1995 deed to Cusabo conveying Lot A, the Schwanks remained the owners of Lot B.

10. A second plat of the same area dated November 7, 1995 subdivided the former Lot A and Lot B into smaller lots.

11. Lot A was subdivided into lots numbered 1 through 8 and 11 through 13.

12. Lot 8 has deep water frontage on Lucy Creek and a ninety foot pier with a floating dock.

13. Lot B was subdivided into lots numbered 9 and 10.

14. The Schwanks own lot 9 and acquired the property without the use of LLC funds.

15. Of the lot formerly depicted as Lot A, only lot 8 has deep water frontage on Lucy Creek.

16. Of the lot formerly depicted as Lot A, property designated as common property has frontage along the tidal slough.

17. The tidal slough has no historical significance, cultural value, or other unique characteristics.

18. Economic development of a residential single family subdivision around the tidal slough provides value by forming a substantial property tax base for support of county services.

19. The general character of the area is a single family residential subdivision.

20. The bridge is consistent with the character of the area in that it provides access to the water by a single community dock for residents of the area.

21. Of the lot formerly depicted as Lot B, lot 9 has deep water frontage on Lucy Creek.

22. The November 7, 1995 plat was revised March 1, 1996 to designate common property to be used for a community dock.

23. The community dock property, with an approximate size of .025 acres, was carved from lot 9.

24. The .025 acre portion of land has deep water frontage on Lucy Creek and is designated as common property for use as a community dock.

25. Access to the .025 acre portion of land is available only by construction of a footbridge across the tidal slough.

26. The footbridge will be of a sufficient height so that access to the tidal slough will not impair travel into and out of the slough by kayak and small boats.

27. Routes across lot 9 and lot 8 to reach the deep water of Lucy Creek are not feasible for Cusabo due to legal, environmental, and economic prohibitions.

28. The Schwanks gave Cusabo no easements across the Schwanks' property of lot 9.

29. Lot 8 has numerous 100 to 200 year old magnolias and oaks on its eastern and western property lines.

30. The oak and magnolia trees of lot 8 are protected from removal or cutting by an ordinance of Beaufort County.

31. Cusabo explored the possibility of using lot 8 to access a community dock but was prohibited from doing so by the tree protection ordinance.

32. No significant environmental impact results from construction of a footbridge over the tidal slough.

33. An environmentally sound alternative route across lot 8 would not allow the destruction of numerous irreplaceable 100 to 200 year old trees.

34. Avoiding the magnolias and oaks on lot 8 would not leave a building site large enough for a residence.

35. The value of lot 8 as a building site is $250,000 with that value significantly reduced if access to the community dock is by access through lot 8.

36. As long as a community dock is provided somewhere within the subdivision, the interior lots are not enhanced in value by the use of lot 8 to access the community dock.

37. Cusabo made a management decision not to use lot 8 to access Lucy Creek for a community dock.

38. The use of lot 8 as access to common property or as common property itself diminishes the value of the subdivision property.

3. Discussion

a. Introduction

Rather than a denial of a permit by OCRM, this case addresses the granting of a permit with a condition. OCRM may impose conditions "necessary to protect the public interest." See S.C. Code Ann. § 48-39-150(B) (Supp. 1995). More specifically, OCRM found the dock appropriate but denied the use of a footbridge to reach the dock. Testing the restriction requires a two step inquiry. Is the restriction an appropriate balance between the public's interest in coastal public land and the private party's interest in developing coastal property? Even if the balancing favors the private interest, has the General Assembly chosen to protect the public interest by a specific mandatory provision which requires imposing the restriction?

b. Public Interest Versus Private Interest

Extensive public trust lands exist in the coastal areas since land between the usual high water mark and the usual low water mark on a tidal navigable watercourse is held by the State in trust for public purposes. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979); State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972). In deciding when coastal public trust land may be used for private purposes, OCRM is charged with the implicit duty to administer the public trust lands consistent with applicable law. See S.C. Code Ann. § 48-39-10 et. seq. (Supp. 1995) and Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892). The balancing of the public interest against the private interest includes considering the policies specified in S.C. Code Ann. §§ 48-39-20 and 48-39-30, along with the general considerations of § 48-39-150 and S.C. Code Regs. 30-11 (Supp. 1995). If the general considerations strike a proper balance between protecting the public interest and an allowing the use of public property by private parties, the permit is granted (see Sierra Club v. Kiawah Resort Associates, ___ S.C. ___, 456 S.E.2d 397 (1995) (issuing permits for 36 docks in connection with a development project did not violate the public trust doctrine since testimony indicated the docks would not substantially impair marine life, water quality, or public access to the area), but if there is no proper balance, the permit is denied (see State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986) ("Although we recognize the potential benefit of an aquaculture industry to South Carolina, we cannot find sufficient evidence of an overriding public interest which would justify removing 660 acres from the Santee Estuarine System and destroying fifty acres of marshland."). Thus, the inquiry here is whether the impact upon the public interest is so significant as to warrant restricting Cusabo from constructing a footbridge over the tidal slough.

OCRM's restriction primarily relies upon four general considerations: whether the benefits of preservation of the area in an unaltered state outweigh the economic benefits (S.C. Code Regs. 30-11(B)(7)); the extent to which the footbridge creates a detrimental impact upon the value and enjoyment of adjacent owners (S.C. Code Regs. 30-11(B)(10)); whether the long-range, cumulative effects of the project are not consistent with the general character of the area (S.C. Code Regs. 30-11(C)(1)); and the degree to which the footbridge maximizes dollar benefits without insuring the maximum benefit to the people (S.C. Code Ann. § 48-39-30(D)).

1. Preservation In An Unaltered State

The public's interest may need protection when the benefits of preservation outweigh the economic benefits from development. S.C. Code Regs. 30-11(B)(7). Here, no persuasive evidence warrants retaining the tidal slough in an unaltered state. For example, no evidence exits of historical significance, cultural value, or other unique characteristics associated with the slough. On the other hand, the evidence demonstrates the economic benefit from development. Lots with values as much as $250,000 will provide housing and associated amenities sufficient to form a substantial property tax base for support of county services. Thus, the benefits of preservation do not outweigh the economic benefits from development.

2. Detrimental Impact Upon Adjacent Owners

Adjacent owners as members of the public may need protection from the detrimental impact that the use of public property may have upon their value and enjoyment. S.C. Code Regs. 30-11(B)(10). Here, while the adjacent owner objects to the dock on numerous grounds, the dock has been permitted. The issue here is whether the footbridge is proper. The adjacent owner's objection to the footbridge is that the bridge "could block use of [sic] cove by vessels on high water." The testimony confirmed that the height of the footbridge will continue to allow access by kayak and small boats. Thus, the adjacent owner does not need protection from the impact of the footbridge.

3. Long-Range Cumulative Effects

The public may need protection from the long-range, cumulative effects of a project where those effects are inconsistent with the general character of the area. S.C. Code Regs. 30-11(C)(1). Here, the general character of the area is that of a single family residential subdivision with a private dock already existing on Lucy Creek. The project is the construction of a footbridge to access a proposed community dock. Under these facts, the bridge does not create a cumulative effect inconsistent with the character of the area. Rather, the bridge complements the character of the area. The bridge serves the subdivision by providing access to the single community dock. Such a use is consistent with the character of the subdivision since a dock is already present. Thus, the long-range cumulative effects produced by the footbridge will be consistent with the general character of the area.



4. Maximizing Dollar Benefits

State policy seeks to insure the citizens derive the maximum benefit from public property but such a policy need not necessarily maximize the dollar benefits. S.C. Ann. §48-39-30(D) (Supp. 1995). Dollar benefits, however, are not prohibited since no policy prohibits an economic gain from the authorized use of public trust property. See Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992) (evidence demonstrated the permit for the proposed restaurant was proper since the restaurant would serve the public need when constructed in conjunction with science museum and tour boat facility.) However, a purely economic purpose will rarely be sufficient to allow private use of public property. See S.C. Wildlife Federation v. S.C. Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988) (evidence of purely economic benefit does not support the purpose of the Coastal Management Program to protect, restore, or enhance the resources of the State's coastal zone for present and succeeding generations since the public interest must counterbalance the goal of economic improvement.) Rather, a proper balance is required.

Here, no persuasive evidence demonstrates the footbridge maximizes the dollar benefits at the expense of the public benefit. First, rather than harming the public, the footbridge furthers public policy by providing access to a community dock. Subdivision developers are encouraged to develop joint-use docks and community docks. S.C. Code Regs.30-12(A)(2)(h) (Supp. 1995). Second, the footbridge does not harm the public's access to the tidal slough since the bridge does not impede navigation. Thus, no public policy is violated by the economic gain since the maximum benefit to the people from the use of the public property is not impaired. S.C. Code Ann. § 48-39-30(D) (Supp. 1995).

c. Specific Regulatory Requirements Concerning Bridges

Even when general policy considerations do not prohibit a structure, specific mandatory policy requirements may. OCRM asserts S.C. Code Regs. 30-12(F)(2)(b) (Supp. 1995) prohibits the bridge,(1) since transportation bridges, such as the footbridge here, must "avoid the critical areas to the maximum extent feasible." OCRM argues alternative routes across lots 9 and 8 are feasible and must be used. Feasibility turns upon the facts of each case and considers such factors as "environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives." S.C. Code Regs. 30-1(C)(6). I find routes across lot 9 and lot 8 are not feasible due to legal, economic and environmental prohibitions. Accordingly, the bridge need not avoid the tidal slough.

1. Access By Lot 9

Access to Lucy Creek across lot 9 is not legally feasible. The Schwanks own lot 9 and have not granted any easements across their property. Cusabo, an LLC, has no ownership rights in property acquired by a member who used no funds of the LLC in the acquisition. See § 33-43-701(E) (Supp. 1995) (property acquired in the name of one of the members is separate property where acquired without use of limited liability assets.) Here, the Schwanks acquired lot 9 without the use of LLC funds. Further, OCRM presented no persuasive evidence that the LLC should be disregarded or that the lines of separation between the members and the LLC should be ignored. See generally, Everett A. Kendall, II, Statutory Developments, The South Carolina Limited Liability Company Act of 1994, 47 S. C. Law Rev. 181, 189-193 (1995). Thus, lot 9 is not a feasible alternative route.

2. Access By Lot 8

The second route suggested by OCRM is lot 8. While lot 8 provides access to Lucy Creek, the route is not feasible due to legal, environmental, and economic considerations.

Numerous 100 to 200 year old magnolias and oaks line the eastern and western boundaries of lot 8. Cutting or removing these trees is prohibited by a county ordinance. Beaufort County, S.C., Ordinance of Tree Protection Standards § 5.2.7 (1995). Specifically, trees such as the oak and magnolia trees of lot 8 are classified as "significant trees." Significant trees cannot be cut or removed unless "all responsible design alternatives have been explored by the applicant and removal cannot be avoided." Id. § 5.2.7.4. The persuasive testimony demonstrates Cusabo explored the possibility of using lot 8 to access a community dock but was prohibited from doing so by the tree protection ordinance. Thus, access to Lucy Creek along the boundary lines of lot 8 is not legally feasible.

In addition, lot 8 is not environmentally feasible as an alternative route. A feasibility determination must consider the "environmental ... suitability of the proposed activity and its alternatives." S.C. Code Regs. 30-1(C)(6). Here, there is no significant environmental impact upon the tidal slough from the construction of the footbridge. However, an environmentally sound alternative would not allow the destruction of numerous irreplaceable 100 to 200 year old trees. Accordingly, the use of lot 8 as a route to Lucy Creek is not environmentally feasible.

Finally, since the trees may not be disturbed, avoiding the magnolias and oaks requires a route through the interior of the lot. Based upon engineering studies, the interior route results in a remaining building site insufficient for the construction of a residence. Such a route is not economically feasible since the $250,000 value of the lot as a sales lot is virtually eliminated. The loss is significant since, according to Cusabo, lot 8 is "the most beautiful and private deep water homesite remaining in Beaufort."

While it is true that lot 8 would have some value as community property, the community value is significantly less than the $250,000 value as a lot held for sale. Further, the loss in value is not offset by an increase in value to the interior lots. Rather, the interior lots already have a water access value based upon the proposed community dock at the .025 acre site adjacent to lot 9. Thus, access by lot 8 transforms a building lot with a value of $250,000 into common property with a significantly lesser value.

In addition, the private party's economic reduction in value is not offset by countervailing gains to the public. Rather, the infringement upon the public is so minimal that the loss in value from transforming lot 8 into common property is unwarranted. Here, Cusabo furthers the public policy by developing a community dock and deters the less desirable creation of multiple single docks. S.C. Code Regs.30-12(A)(2)(h). Cusabo's efforts to obtain a community dock should not be thwarted by suffering a significant economic harm. Such is especially true where, as here, the footbridge will not impede navigation so that the public is not impaired in its right to navigate or otherwise enjoy the tidal slough. Accordingly, the restriction prohibiting the footbridge is an improper restriction.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following:

1. OCRM may impose conditions "necessary to protect the public interest." See S.C. Code Ann. § 48-39-150(B) (Supp. 1995).

2. Extensive public trust lands exist in the coastal areas since land between the usual high water mark and the usual low water mark on a tidal navigable watercourse is held by the State in trust for public purposes. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979); State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972).

3. In deciding when coastal public trust land may be used for private purposes, OCRM is charged with the implicit duty to administer the public trust lands consistent with applicable law. See S.C. Code Ann. §48-39-10, et. seq. (Supp. 1995) and Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892).

4. The principal analysis in deciding whether to allow the private use of public property is to weigh the extent of the public impairment against the benefits of the private use. See Sierra Club v. Kiawah Resort Associates, ___ S.C. ___, 456 S.E.2d 397 (1995); See State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986).

5. In weighing the public impairment versus private use, no policy prohibits a private party from deriving an economic gain from the authorized use of public trust property. See Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992).

6. A pure economic purpose, however, will rarely be sufficient to allow private use of public property. See S.C. Wildlife Federation v. S.C. Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988).

7. Here, the impact upon the public trust property by the construction of a footbridge is minimal and is not an impermissible infringement on the public interest.

8. The benefits of preservation of the tidal slough in an unaltered state do not outweigh the economic benefits from development. S.C. Code Regs. 30-11(B)(7) (Supp. 1995).

9. Access will not be impeded by the bridge and adjacent owners do not need protection from the impact of the footbridge. S.C. Code Regs. 30-11(B)(10) (Supp. 1995).

10. The public does not need protection from the long-range, cumulative effects produced by the footbridge since the effects of the footbridge are consistent with the general character of the area. S.C. Code Regs. 30-11(C)(1) (Supp. 1995).

11. The maximum benefit to the people from the use of public property is not impaired and no public policy is violated due to deriving a private economic gain where a bridge that does not deny boat access to a slough is constructed to access a community dock. S.C. Code Ann. § 48-39-30(D) (Supp. 1995).

12. Developers of subdivisions are encouraged to develop joint-use docks and community docks. S.C. Code Regs.30-12(A)(2)(h) (Supp. 1995).

13. The public is not impaired in its right to navigate or otherwise enjoy the tidal slough. S.C. Code Regs. 30-12(A)(2)(a) (Supp. 1995).

14. The prohibition of the bridge is not in the best interest of the development of coastal resources. S.C. Code Regs. 30-1(A) (Supp. 1995).

15. While general policy considerations may not prohibit a footbridge, specific mandatory requirements may deny the footbridge. See S.C. Code Regs. 30-12(F)(2)(b) (Supp. 1995).

16. Transportation bridges, such as the footbridge here, must "avoid the critical areas to the maximum extent feasible." S.C. Code Regs. 30-12(F)(2)(b) (Supp. 1995).

17. Feasibility is determined based upon the facts of each case and includes considering such factors as "environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives." S.C. Code Regs. 30-1(C)(6) (Supp. 1995).

18. Access to Lucy Creek across lot 9 is not feasible as an alternative route since lot 9 is owned by the Schwanks and not by Cusabo, an LLC. See S.C. Code Ann. § 33-43-701(E) (Supp. 1995).

19. The LLC should not be disregarded and the lines of separation between members and the LLC should not be ignored. See generally, Everett A. Kendall, II, Statutory Developments, The South Carolina Limited Liability Company Act of 1994, 47 S.C. Law Rev. 181, 189-193 (1995).

20. Cutting or removal of the lot 8 magnolias or oaks is prohibited by county ordinance. Beaufort County, SC., Ordinance of Tree Protection Standards § 5.2.7 (1995).

21. Access to Lucy Creek across lot 8 is not feasible as an alternative route since access by the boundary lines of lot 8 is legally prohibited due to a county ordinance prohibiting the removal or cutting of the trees. S.C. Code Regs. 30-1(C)(6) (Supp. 1995).

22. A feasibility determination must consider the "environmental ... suitability of the proposed activity and its alternatives." S.C. Code Regs. 30-1(C)(6) (Supp. 1995).

23. Access to Lucy Creek across lot 8 is not feasible as an alternative route since an environmentally sound alternative would not allow the destruction of numerous irreplaceable 100 to 200 year old trees. S.C. Code Regs. 30-1(C)(6) (Supp. 1995).

24. Access to Lucy Creek across lot 8 in a manner that avoids the numerous 100 to 200 year old trees is economically not feasible due to the loss in value from using a $250,000 sales lot as common property. S.C. Code Regs. 30-1(C)(6) (Supp. 1995).

25. A requirement that lot 8 be used to access the community dock is an improper requirement since only a nominal infringement on the public interest is shown while a significant impairment of the private property results. See Sierra Club v. Kiawah Resort Associates, ___ S.C. ___, 456 S.E.2d 397 (1995).

B. Shifting Dock Site Away From Tidal Slough

1. Positions of Parties:

OCRM asserts the proposed location of the community dock in relation to the tidal slough conflicts with applicable regulations since the dock will "impede navigation or restrict the reasonable public use of State land and waters." S.C. Code Regs. 30-12(A)(2)(a). Cusabo argues the tidal slough is not navigable and thus the location of the community dock in relation to the tidal slough is not a problem.

2. Findings of Fact:

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

1. The tidal slough is accessible by kayak and small boat.

2. Members of the public have used the tidal slough for pleasure boating.

3. Pleasure boating can occur in the tidal slough since the tidal slough fills with water for at least two hours on either side of high tide.

4. Water depth in the tidal slough at high tide is approximately 1.8 feet.

5. The tidal slough is marked by a channel.

6. The channel both empties and fills with the ebb and flow of the tide.

7. The channel has a significant change in grade which allows for the movement of water in and out of the tidal slough to Lucy Creek.

8. The tidal slough consists of a channel accompanied by a significant change in grade.

9. The tidal slough is a navigable waterway.

10. Moving the dock five to eight feet further from the mouth of the slough will allow a dock which does not impede navigation.

3. Discussion

A dock may not "impede navigation or restrict the reasonable public use of State land and waters." Regs. 30-12(A)(2)(a). "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary753 (6th ed. 1990). The forbidden obstruction must be to a waterway that is navigable. A waterway is navigable if it has the capacity for "valuable floatage" with valuable floatage satisfied even where the sole use of the waterway is by pleasure boats. State ex rel. Medlock v. S.C. Coastal Council,289 S.C. 445, 346 S.E.2d 716 (1986). 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. Hughes v. Nelson, 303 S.E.2d 24, 303 S.C. 102 (Ct. App. 1990).

The tidal slough is navigable. The witnesses testified the tidal slough is used for pleasure boating by kayaks and small boats during approximately two hours on either side of high tide. The ordinary stage of the high tide water averages about 1.8 feet.

There is no persuasive testimony indicating that the tidal slough does not fill and empty with the tide, nor is there any persuasive evidence demonstrating a lack of a change in grade. The testimony demonstrates small watercraft can enter and leave the slough by use of the channel. Accordingly, I am convinced the tidal slough presents a navigable waterway.

Locating the dock too close to the mouth of the tidal slough will impede navigation. The testimony confirms that moving the dock between five and eight feet away from the mouth will alleviate the problem. Accordingly, the dock must be moved five to eight feet further away from the mouth of the tidal slough.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following:

1. A dock cannot "impede navigation or restrict the reasonable public use of State land and waters." S.C. Code Regs. 30-12(A)(2)(a) (Supp. 1995).

2. "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th ed. 1990).

3. A waterway is navigable if it has the capacity for "valuable floatage" with valuable floatage satisfied even where the only use is by pleasure boats. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986).

4. 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. Hughes v. Nelson, 303 S.E.2d 24, 303 S.C. 102, (Ct. App. 1990).

5. The tidal slough is navigable.



IV. ORDER

OCRM is ordered to delete special condition number 1 from the permit granted to Cusabo on March 7, 1996, but retain special condition number 5 by moving the community dock five to eight feet so as not to block the mouth of the slough.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 20th day of September, 1996



_______________

Fn.1. OCRM asserted the inapplicability of S.C. Code Regs. 30-12(a)(2)(n) (Supp. 1995) (applicant must construct its dock to the first navigable waterway and may not bridge that waterway to reach deeper water). Cusabo agreed the regulation did not apply. Since the issue was not presented, I decline to address the regulation.


Brown Bldg.

 

 

 

 

 

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