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:
James W. Green vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
James W. Green

Respondent:
South Carolina Department of Health and Environmental Control (OCRM)
 
DOCKET NUMBER:
96-ALJ-07-0229-CC

APPEARANCES:
James W. Green
Petitioner

John P. Kassebaum
Attorney for Respondent
 

ORDERS:

CONSENT ORDER OF DISMISSAL

This matter is before the Court pursuant to a Petition for Review timely served by James W. Green ("Petitioner") seeking review of a decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management ("Department") to deny a permit application submitted by Petitioner to Respondent. A pre-trial conference took place on August 7, 1996, by way of a conference call with the Court, Mr. Green, and counsel for the Department. The case was continued until November 7, 1996, to allow the Department of Natural Resources to determine the suitability of the proposed location for the natural growth and propagation of shellfish. Prior to the date set for trial of the issues, the parties notified the Court that an agreement had been reached resolving the dispute which had given rise to the appeal and allowing the permit to be issued to Petitioner. This Consent Order has been provided to the Court by the parties and represent their agreement as to the facts in issue and the proper resolution of the appeal. Accordingly, this court finds as follows:

FINDINGS OF FACT

1. The Petitioner is the applicant for a permit to construct a 70 foot extension of an existing commercial dock located at 2659 Cherry Point Road, Wadmalaw Island, Charleston, county, South Carolina.

2. The existing facility is located in Bohicket Creek and has 179 feet of fixed pier docking space as well as an existing enclosed building over open waster. Because of the amount of existing dock space and the commercial usage, this facility meets the definition of a marina and the project was reviewed according to marina standards.

3. This area of Bohicket Creek is classified as Outstanding Resource Waters ("OR~'), the state's most protected classification. The dock is also located within a state shellfish ground.

4. A 401 Water Quality Certification was required for this project which concluded that the Department did not have a reasonable assurance that the water quality standards of Regulation 61-68 would not be contravened as a result of the proposed work and existing and classified use of Bohicket Creek will not be maintained.

5. In an effort to settle this case the parties submitted a joint request for a continuance to allow the Department of Natural Resources to make a determination on the suitability of the proposed location for the natural growth and propagation of shellfish. A continuance was granted in that the determination could affect the Department's review of the permit and decision to deny the permit to Petitioner.

6. The Department of Natural Resource concluded that the overall suitability of the site for the natural growth and propagation of shellfish was poor.

7. The Department's water quality division also concluded that construction of the 70 foot extension would not increase the closer zone extending around the existing dock.

8. Based on the these conclusions the Department re-evaluated the permit application and determined that there was a reasonable assurance that water quality standards of Bohicket Creek could be maintained if certain conditions were placed on the permit.

9. Petitioner has agreed to accept the permit with conditions as incorporated herein as "Exhibit A."

10. The Department agrees to issue a 401 Water Quality Certification and a permit to Petitioner which allows the 70 foot addition to be constructed as proposed.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the parties and issues pursuant to S.C. Code Ann. § 1 -23-600.

2. S.C. Code Ann. § 48-39-1 0 et seq. grants the Department jurisdiction over activities such as that sought by Petitioner.

3. The permit is conditioned to assure that the proposed addition will have minimal impacts on wetlands, water quality, and on shellfish resources. S.C. Code § 4839-1 50(A)(3) and Regulations 30-1 1 (B)(3) and 30-1 2(E)(4)(a) & (b).

THEREFORE, IT IS ORDERED, upon joint motion and consent of the parties, that Respondent Department issue to Petitioner Green a permit to construct a 70 foot extension to the existing fixed pier.

AND IT IS SO ORDERED.



______________________________

ALISON RENEE LEE

Administrative Law Judge



November ____, 1996

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

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