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. |