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:
Bob L. Pruitt vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Bob L. Pruitt

Respondent:
South Carolina Department of Health and Environmental Control, (Office of Ocean and Resource Management)
 
DOCKET NUMBER:
96-ALJ-07-0289-CC

APPEARANCES:
Bob L. Pruitt, Pro se for Petitioner

John P. Kassebaum, II, Esquire for Respondent
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before me pursuant to S.C. Code Ann. §§ 48-39-10 et. seq. (Supp. 1995) and S.C. Code Regs. 30-1 through 30-20 (Supp. 1995). Petitioner requests a contested case hearing to review the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management ("OCRM") to issue to a permit with conditions for construction of a timber bulkhead at Lot #11, Block O-1, Cherry Grove Section, North Myrtle Beach, Horry County, South Carolina. Permit #96-1D-019-P allows construction of Mr. Pruitt's bulkhead at a distance of 5 feet out from the existing bulkhead. Mr. Pruitt alleges construction at a distance of 15 feet out would align his bulkhead with those of the adjoining property owners, which is necessary to protect his property from further washout and erosion beneath his home.

After notice to the parties, a hearing was conducted on Monday, October 14, 1996. For the following reasons, Pruitt's permit application for a bulkhead is granted as modified with the bulkhead located fifteen (15) feet out from the existing bulkhead.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order.

FINDINGS OF FACT

Based upon the evidence presented, I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into account the credibility of the witnesses:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was given to all parties.

3. Bob L. Pruitt owns property located at 311 51st Avenue, North Myrtle Beach, South Carolina, also known as Lot #11, Block O-1. Mr. Pruitt's property is located on and adjacent to Williams Creek.

4. Pruitt's existing bulkhead is failing and causing erosion of his property and structural damage to his residence. Photographs introduced into evidence clearly depict the damage occurring to the property.

5. On January 27, 1996, Pruitt applied to OCRM for construction of a 50' long bulkhead to protect his property from erosion.

6. The proposed work consists of the construction of a 50' long timber bulkhead requiring approximately 134 cubic yards of backfill material. The design will align Mr. Pruitt's bulkhead with those his neighbors. Mr. Pruitt wants this alignment to prevent the tidal current from flowing in and washing out soil from underneath his home. The site proposed to be backfilled is located in a non-vegetated wetland area.

7. On March 6, 1996, Department staff conducted a site visit of Pruitt's property and observed that the house sits immediately adjacent to the existing bulkhead, which is failing, and the sediment under the house which serves as the foundation is eroding and resulting in the collection of soil creating a small mudflat in the canal.

8. Department staff determined that if conditions relative to stabilizing the backfill area with a vegetative cover and using clean earthen material were adhered to, water quality standards will not be contravened nor the designated use changed.

9. The United States Department of the Interior, Fish and Wildlife Service, reviewed the public notice on the proposed project with regard to the effects the project may have on fish and wildlife resources. The Service took no position on the proposed project, and stated only that there may be some adverse impacts on waters of the United States.

10. The S.C. Department of Natural Resources, in a letter dated February 27, 1996, recommends denial of the permit application on the basis that the non-vegetated mudflat provides sites for production of micro algae and phytoplankton which are consumed by benthic invertebrates. Those invertebrates provide a major food source for crabs, shrimp and other fish. Filling the area would destroy the mudflat and any potential benefit for marine or aquatic life. DNR does not object to the bulkhead itself.

11. By letter dated March 13, 1996, Jerry Pierce, City Engineer, informed Mr. Dean Herndon of the U.S. Army Corps of Engineers that the City of North Myrtle Beach had no objection to the issuance of a permit for Pruitt to relocate the bulkhead, and the city would issue a permit for this purpose if a permit was granted by OCRM. The city stated its belief that a properly constructed bulkhead would eliminate the erosion problem.

12. Adjoining property owner, Mr. Glenn M. Evans, on June 28, 1996, wrote a letter of support for Pruitt to extend his bulkhead an additional 15 feet.

13. On April 30, 1996, OCRM issued a critical area permit with conditions to Bob L. Pruitt. Permit #96-1D-019-P provided for the construction of a bulkhead with a maximum of 5' in front of the existing bulkhead. The permit further provided that the location must be delineated in the field and approved, in writing, by OCRM staff prior to construction. The permit further required that the backfilled area must be stabilized with a vegetative cover after construction to minimize erosion; and only clean earthen material free of all potential sources of pollution must be used as backfill.

14. No evidence of adverse impacts on waters or wildlife or environmental losses has been shown.

15. Along Williams Creek, all property owners have some type of erosion control devices because this was a man-made development. Not all of the bulkheads are aligned but rather the bulkheads form a zigzag pattern along the water's edge.

16. The mudflat was created by the fill dirt washed from Mr. Pruitt's property into the creek. At low tide, the mudflat is exposed. The erosion is caused in part by the construction of an aligning neighbor's wall (the Greenes). To properly construct the bulkhead and provide protection against erosion, filter fabric should be installed next to the wooden structure before the fill dirt is placed. The filter fabric prevents most of the dirt from washing out. Filter fabric is particularly important to connect the corners on the bulkheads and walls.

17. No filter fabric was used on the Greenes' side of Pruitt's property. The failure to use filter fabric has caused the wall to bow out and allows soil to seep between the timbers of the wall causing sink holes on the property. This in turn weakened the structure of the concrete walkways leading to the house. The sink hole is located outside of the five foot mark designated for the bulkhead as proposed by OCRM.

18. According to the Department's engineer, the bulkhead and wingwalls can be properly constructed at the five foot location. The problem with the wingwalls currently is the connection at the corners. The curvature in the wingwall is not causing the erosion problem. If a good and reputable company constructs the bulkhead and ties the corners properly, there should not be a problem with future erosion.

19. Mr. Pruitt presented letters of contractors who build seawalls. These letters state the contractor's belief that the erosion problem is caused because Mr. Pruitt's bulkhead is not aligned with his adjoining neighbors.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-500 et seq. (Supp. 1995) and 1-23-310 et seq.(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 the subdivision within DHEC charged with implementing the state's coastal zone policies and issuing permits in coastal zone areas.

4. S.C. Code Ann. § 48-39-50 (Supp. 1995) provides the authority for DHEC to promulgate regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.

5. 23A S.C. Code Regs. 30-1 through 30-20 (1987 & Supp. 1995) were promulgated by the Coastal Council (as predecessor to OCRM), as the applicable regulations governing the management, development, and protection of the critical areas of the coastal zone of the state.

6. The project in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10 (Supp. 1995) and 23A S.C. Code Regs. 30-1(C)(4) and (12) (Supp. 1995). Any person wishing to alter a critical area must obtain a permit from OCRM. 23A S.C. Code Regs. 30-2(B).

7. 23A S.C. Code Regs. 30-12(C) (Supp. 1995) sets forth the specific standards for construction of bulkheads and revetments for tidelands and coastal waters. The proposed location of the bulkhead does not violate any of these standards.

8. S.C. Code Ann. § 48-39-150(A) (Supp. 1995) and 23A S.C. Code Regs. 30-11 (Supp. 1995) set forth the guidelines to be used in assessing the impact of a project in a critical area. The primary guideline relied on by the Department is 30-11(B)(3), which requires the Department to consider the extent to which the applicant's completed project would affect the production of fish, shrimp, oysters, crabs, or clams or any marine life or wildlife, or other natural resources in a particular area. The mudflat located in front of Mr. Pruitt's existing bulkhead was created by the settling of the soil eroding from his property. It is a non-vegetative mudflat that provides a source of food for organisms that are ultimately consumed by shellfish in the creek. The project, as proposed by Pruitt, requires the addition of fill dirt in the area where the mudflat is located thereby destroying it and the micro-organisms that exist within the mudflat. The Department believes that the erosion problem can be solved without destroying the mudflat if a good contractor is obtained to construct the bulkhead and the job is performed properly. This consideration must be balanced against the destruction caused to Mr. Pruitt's property, the expense involved in fixing the problem and the likelihood that erosion could occur again through seepage at the corners or along the wing walls. The evidence fails to reveal that the filling of the mudflat would cause any significant impact on the environment. Certainly, there would be some impact on the shellfish in his vicinity but when balanced against the personal impact to Mr. Pruitt's, it is not great.

9. Further, the Department considered the extent to which the proposed use could affect the value and enjoyment of adjacent owners. 23A S.C. Code Regs. 30-11 (B)(10) (Supp. 1995). Adjacent property owners have no objection to the extension of Mr. Pruitt's bulkhead. They favor the bulkhead as a preventive measure against possible erosion of their own property.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Mr. Pruitt's application for the construction of a timber bulkhead to be located fifteen (15) feet seaward of the existing bulkhead on and adjacent to Williams Creek at 311 51st Avenue, North Myrtle Beach, Horry County, South Carolina is granted and Permit #96-1D-019-P is amended accordingly.

AND IT IS SO ORDERED.



_______________________________

ALISON RENEE LEE

Administrative Law Judge



January ______, 1997

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

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