SC Administrative Law Court Decisions

This matter comes before me upon petitions for a contested case hearing de novo pursuant to S. C. Code Ann. § 48-39-150 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) regarding Petitioners' opposition to various portions of a proposed critical area permit to allow James A. Cox (hereinafter referred to as "Cox") to conduct an aquaculture clamming operation on and near Toogoodoo Creek, in the coastal tidelands adjacent to his property in Charleston County. The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (hereinafter referred to as "OCRM") preliminarily approved the permit application with special conditions. A contested case hearing was held at the Charleston County Judicial Center on February 18, 1997. Upon review of the relevant and probative evidence and applicable law, the permit is granted with additional conditions imposed.

Cox seeks a permit to begin a clamming operation in the coastal tidelands adjacent to his property in the vicinity of Toogoodoo Creek in Charleston County. He currently holds other mariculture permits for shrimping operations in the coastal tidelands of Charleston County. The proposed permit presently under consideration authorizes Cox to grow seed clams in two separate but proximate areas adjacent to his property: a 125-acre area in the waters and mudflats of Toogoodoo Creek; and a smaller area on an adjacent unnamed creek. Landowners of islands adjacent to and/or in close proximity to the proposed growout areas seek denial or modification of the permit.

Richard W. Hutson, Jr. seeks denial or significant modification of the permit. He opposes the permitting of clamming operations in any areas which are accessible to the public because of navigational, aesthetic, wildlife, and pollution concerns. If a permit is granted for clamming, Hutson requests that Cox be required to post a monetary bond to guarantee that adequate funds are available for clean-up or tray removal in the event of pollution and/or the failure of Cox's business. The clean-up bond, sought by Hutson to cover possible pollution problems is not necessary in this case. Because of the type of clam trays which will be used, the low risk of pollution problems which could occur, and the minimal cost of any clean up which my be necessary, there is no serious threat of irreparable harm to the environment. The trays to be used can easily be retrieved by hand in hours.

Harmony Hall objects to Cox's clamming of any creek or marshlands adjacent to Harmony Hall property, based upon property ownership claims and fear of navigational problems. Harmony Hall specifically opposes the placement of clam trays in the smaller growout area in and along the unnamed creek which separates Harmony Hall property from Cox property.

Harmony Hall raises several issues relating to the ownership of affected marshland in the project area. Pursuant to 23A S.C. Code Ann. Regs. 30-2(I) (Supp. 1996), if an adjoining landowner of a critical area files an objection to a permit application based upon a claim of ownership, the application must be deemed incomplete; however, the adjoining landowner must also file a court action in the court of common pleas pursuant to S.C. Code Ann. § 48-39-220 (Supp. 1996) to adjudicate the property ownership dispute. If no such circuit court action is commenced, the permit must be processed. Harmony Hall was informed by OCRM of this requirement by letter to Willis Fuller, Jr., dated June 21, 1996. To date, no legal action is pending in which a claim of ownership of the proposed project area is in issue. Therefore, any issues relating to Harmony Hall's claims of marshland ownership are not considered or decided in this Order.

The proposed permit contains sixteen special conditions. Cox and OCRM made several assurances at the hearing of various limitations or conditions to the proposed project, several of which are not directly included in or readily understandable from the text of the permit. There was a great deal of confusion at the hearing regarding the accuracy of various maps introduced as exhibits or referred to in testimony. As currently drafted, the proposed permit does not clearly delineate the geographic boundaries of the permitted project.

To more clearly express the intent of OCRM and Cox and to give notice to interested persons, the permit must be amended to include a more accurate and specific description and map of the proposed project (See Court's attachment entitled "Revised Attachment A"). Further, the number of clam trays which Cox is authorized to place in the growout areas should be explicitly limited to the number of trays which Cox has stated he intends to use. Finally, to keep interested persons and those owning property in close proximity to the growout areas informed and to allow them some means of input, public notice of permit extensions is required.

As modified, the proposed permit meets the legislative and regulatory criteria for issuance of a critical area permit. Given the minimal or nonexistent impact of the proposed project upon navigation, the natural flow of navigable water, public access to tidal and submerged lands and recreational resources, marine life and wildlife, historic and archeological sites, the environment, and the value and enjoyment of adjoining landowners, the project should be permitted. The proposed clamming operation will provide an opportunity for economic benefit with minimal and temporary alteration of the project area, protected by reasonable safeguards to avoid or correct any resulting adverse environmental affects. If conducted properly, the proposed permit project, along with the additional conditions hereinafter set forth (See pp. 15-16), should operate in an unobtrusive and responsible manner, respectful of the rights and interests of neighboring landowners and the general public.

By a preponderance of the evidence, I find:

1. James A. Cox is the principal owner of a tract of land, including several islands, at the end of Ethyl Post Office Road, known as 7540 Ethyl Post Office Road, Yonges Island, Charleston County, South Carolina located on or adjacent to Toogoodoo Creek, near Walpoo Creek, Sandfield Creek, other unnamed creeks, and the Wadmalaw River.
2. The Cox Property is bounded on the south by Toogoodoo Creek, and on the east by lands of Harmony Hall and various creeks and marshes.
3. Petitioner Harmony Hall is a general partnership, of which Willis Fuller, Jr. is managing partner.
4. Petitioner Richard Hutson is the owner of Horse Island and other adjacent islands situated on the east side of Walpoo Creek, located to the east of the Harmony Hall and Cox properties and north of Toogoodoo Creek.
5. Toogoodoo Creek is in the tidal and coastal zone area of southern Charleston County.
6. Cox seeks to utilize soft clam trays and direct bottom planting methods for the commercial cultivation of hard shell littleneck clams on the creek bottoms and mudflats adjacent to or in close proximity to his property.
7. James A. Cox individually, and/or in conjunction with his son William A. Cox, and/or d/b/a JAC, Inc., and/or d/b/a Island Fresh Seafood, is involved in several mariculture ventures, including two shrimping operations.
8. Cox seeks to utilize a direct bottom planting process by which a total of approximately 750 soft trays, in stages of approximately 250 per year, will be used to cover approximately 0.25 acres per year of creek bottom, for up to three years.
9. Jack Whetstone, a marine aquaculture specialist and expert, and professor at Clemson University, has worked with Cox for four years on planning and operating shrimp and clamming operations.

1. Whetstone visited the proposed project site on several occasions, performed tests and analyses, and advised Cox during the planning and permitting process.
2. On April 3, 1996, Cox obtained a conditional mariculture permit from the South Carolina Department of Natural Resources (hereinafter referred to as "DNR"), SCDNR Shellfish Mariculture Permit M-168, to lease a portion of creek bottom for clam cultivation.
3. Issuance of the DNR mariculture permit to Cox was conditioned upon issuance of the instant OCRM permit, and will be modified by DNR if the Administrative Law Judge Division orders any revisions to the OCRM permit.
4. By application dated February 28, 1996, and filed with OCRM May 16, 1996, Cox sought a critical area permit and water quality certification from OCRM for the proposed project.
5. Steve Brooks, OCRM staff biologist, and Richard Chennis, OCRM permit coordinator, reviewed the Cox application, visited the proposed project site, and examined numerous aerial photographs, maps, and plats.
6. Notification of Public Notice of the Cox application was issued by OCRM on May 16, 1996, to allow public comment on the application.
7. The South Carolina Ports Authority, by letter dated May 13, 1996, informed OCRM that it had no objection to the proposed project.
8. The National Marine Fisheries Service, by letter dated May 23, 1996, informed OCRM that it had no objection to the proposed project.
9. The South Carolina Department of Archives and History, by letter dated May 15, 1996, informed OCRM that it had no objection to the proposed project.
10. Adjacent landowners Lawrence and Ruth Gerth, by letter dated June 11, 1996, informed OCRM that they had no objection to the proposed project.
11. By letter dated May 24, 1996, nearby landowner Richard Hutson notified OCRM of his opposition to the issuance of the Cox permit.
12. By fax dated June 3, 1996, Petitioner Willis Fuller, Jr., as managing partner of Harmony Hall, notified OCRM of his opposition to the issuance of the Cox permit.

1. In response to the public comments and objections by Hutson and Fuller, by letter dated June 14, 1996, Cox amended his application by deleting Walpoo Creek as a requested growout area.
2. On September 12, 1996, OCRM issued the proposed critical area permit/water quality certification, Permit #96-1G-055-P, to James A. Cox, with general and special conditions.
3. Fuller, on behalf of Harmony Hall, filed with OCRM a Notice of Intent to Appeal the proposed permit by letter dated September 26, 1996.
4. By letter dated September 27, 1996, Hutson filed with OCRM a Notice of Intent to Appeal the proposed permit.
5. On October 2, 1996, OCRM filed an Agency Transmittal Form with this Division for a contested case hearing.

1. Notice of the time, date, place, and subject matter of the contested case hearing was given to all parties.
2. The contested case hearing was held in Charleston on February 18, 1997.

1. Hard clams are bivalve mollusks that live in saline waters and cannot tolerate fresh water for extended periods of time.
2. Hard clams grow naturally along the eastern seaboard of the United States and support a major fishery in the New England and Middle Atlantic states.
3. Recent innovations in hard clam aquaculture have resulted in a growing commercial clam industry in South Carolina.
4. The hard clam aquaculture production process consists of three consecutive stages: hatchery, nursery, and growout.
5. The hatchery and nursery stages accomplish the spawning and nurturing steps in clam development, usually in a land-based operation.
6. Upon completion of the hatchery and nursery stages, seed clams are generally placed in field-based growout systems located in intertidal zones, utilizing some form of nets, trays, or cages.
7. Growout farmers may purchase seed clams from commercial hatcheries at various sizes, dependent upon whether they intend to place the seed directly into growout fields or raise them in a small nursery first.
8. There are three types of growout systems:

(1) hard cage - cages sit 18" off of the creek bottom;

(2) soft bag - 4'x4' plastic "laundry bags" with holes at each

corner are staked to the creek bottom, allowing the bag to

float up approximately 4" from the creek bottom;

(3) ground plant - a plastic mesh is pulled over and tucked

down on the creek bottom.

1. Clams are harvested from the growout areas for commercial sale and human consumption.
2. Soft bags work best in sandy areas, while hard cages are better suited for mud.
3. Clam growers which have used hard clam pens in South Carolina have experienced clam survival problems.
4. Plastic clam bags are constructed of synthetic materials and are rigid, durable, and reusable.
5. Soft clam trays and bottom planting equipment are not visible except at low tide.
6. Travel and navigation of creeks are not adversely affected by the placement of soft clam bags.
7. For clams to survive and grow, they must be in water with a high salinity content with a minimum salinity level of 25 parts per thousand.
8. The average salinity level of seawater is 33 parts per thousand.
9. Clams naturally purify waters discharged from other mariculture operations.
10. Clams will grow in polluted waters, but may not be safe for human consumption.
11. Clams which have become polluted during cultivation may be transferred or "relayed" to a cleaner environment for two or more weeks for depuration before being harvested to make the clams safe for commercial sale and human consumption.

1. Cox seeks to utilize soft clam trays and direct bottom planting methods for the commercial cultivation of hard shell littleneck clams on the creek bottoms and mudflats adjacent to or in close proximity to his property.
2. The proposed clamming operation will include two intertidal growout areas, upland clam ponds, and various equipment.
3. The location and use of the proposed growout areas are the subject of the proposed permit.
4. Before commencing commercial clam cultivation, an applicant must first be granted a lease and shellfish permit from DNR and a critical area permit/water quality certification for the growout areas.
5. Under the lease and shellfish permit from DNR, Cox is authorized to conduct clamming operations in a 180-acre area of tidelands.
6. The proposed project area consists of two separate growout areas: a large area of approximately 125 acres, situated along a mudflat of Toogoodoo Creek; and a much smaller area situated east of the large growout area on an unnamed creek.
7. The proposed project will not require the complete use of the entire project area at any given time.
8. The total area expected to be utilized by Cox in the first three years of the operation is 12,000 square feet or 0.75 of an acre, for a total of 750 clam trays.
9. If the proposed project is successful, more acreage is expected to be used in subsequent years.
10. Cox estimates that no more than 250 new trays per year will be used in the growout areas, for a total of 750 in three years; however, the permit as approved by OCRM does not contain any limitations on the number of trays which Cox may place in the growout areas.
11. During the course of the permit, clam trays may be moved within the proposed growout areas, dependent upon cultivation success, shellfishing restrictions, and other factors.
12. Each tray is placed at low tide mark so that it may be checked.
13. Perimeters of the project area where trays are located must be marked with PVC pipe.
14. The proposed permit, as approved by OCRM, may be extended without public notice with three (3) one-year extensions.

1. The total area of the larger of the two growout areas in the proposed permit is located on a mudflat on Toogoodoo Creek and contains approximately 125 acres.
2. The mudflat is immediately adjacent to Cox's property and accessible to Cox by land.
3. The large growout area is intended to be the primary growout area for the clamming operation.
4. Because Toogoodoo Creek takes a lot of rainfall runoff, the salinity level of the large growout on Toogoodoo Creek ranges between 25-27 parts per thousand.
5. Most of Toogoodoo Creek is closed to shellfishing by DHEC because of pollution, including part of the proposed project area.

1. The smaller growout area is situated on an unnamed creek which runs into Toogoodoo Creek, between two unnamed islands, one owned by Cox and the other by Harmony Hall.
2. The smaller growout area is expected to be used predominately as a "relaying area."
3. The creek between the Cox island and Harmony Hall island on the unnamed creek in the location of the smaller proposed project area is not navigable at low tide.
4. The salinity level of the small growout area on the unnamed creek is higher than in Toogoodoo Creek.
5. The smaller growout area on the unnamed creek is a desirable relaying area because of its salinity level and fast-moving waters.
6. The smaller area of the proposed project is essential to the overall project because of its suitability and usefulness as a relaying area.

1. Richard W. Hutson, Jr. opposes the permitting of clamming operations in any areas which are accessible to the public because of navigational, aesthetic, wildlife, and pollution concerns.
2. Hutson seeks denial or significant modification of the permit.
3. In the event Cox is granted the permit sought, Hutson seeks the imposition of a monetary bond upon Cox to guarantee that adequate funds are available for clean-up or tray removal in the event of pollution and/or the failure of Cox's business.
4. Harmony Hall objects to Cox's clamming of any creek or marshlands adjacent to Harmony Hall property, based upon property ownership claims and fear of navigational problems.
5. Harmony Hall specifically opposes Cox being permitted to place growout trays in the smaller area in and along the unnamed creek which separates Harmony Hall property from Cox property.
6. Cox stipulated that he would refrain from placing clam trays on the loop of the creek near the Harmony Hall island in the small relaying area and would never block boat access through the creek.

1. Prior to issuance of the proposed permit, Cox agreed not to include any portion of Walpoo Creek in the project's growout areas.
2. The removal of Walpoo Creek from the proposed project is not readily apparent from the permit.
3. To clear up confusion and to adequately give the public accurate notice of the boundaries of the project area, the description of the proposed project must be modified to exclude any areas of Walpoo Creek.
4. The map attached to and referenced by the proposed permit, designated as Attachment "A," contains inaccuracies.



5. To clear up confusion and to adequately give the public accurate notice of the boundaries of the project area, the map and description of the proposed project must be modified to specifically delineate the two separate growout areas.
6. Cox stipulated at the hearing that he would refrain from placing clam trays on the loop of the creek near the Harmony Hall island in the small relaying area and would never block boat access through the creek. This stipulation must be incorporated into the written permit.
7. A condition should be incorporated into the permit requirements that accurately reflects Cox's intention not to increase the number of clam trays used within the permitted project area by more than 250 per year and to provide a means of enforcement of that representation.
8. Because of the necessity to keep neighboring landowners informed of extensions to the permit and to provide a means for OCRM to allow, accept and consider public comment prior to granting an extension., the permit should contain a condition which requires the applicant to give public notice of his intention to have the permit extended.

1. The proposed growout areas are suitable sites for soft clam bags.
2. Soft bags were chosen for the proposed project because of ease of removal.
3. The placement of clam trays in the proposed growout areas will not impede travel or navigation of the creeks in the project areas.
4. If conducted properly, the proposed permit project, with the modifications incorporated herein, will not obstruct the natural flow of navigable water.
5. If conducted properly, the proposed permit project with the modifications incorporated herein will increase the production of clams in the project area, but will have minimal impact upon the production or protection of other marine life or wildlife.
6. If conducted properly, the proposed permit project, with the modifications incorporated herein, will not cause erosion, shoaling, or stagnant creation of stagnant water.
7. The permitting of the proposed project will prevent others from clamming or shrimping within the project area; however, if conducted properly, the proposed permit project, with the modifications incorporated herein, will have minimal impact upon existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational resources.
8. The proposed project will have minimal or no impact upon the habitats for rare and endangered species of wildlife.
9. There are no irreplaceable historic and archeological sites within the proposed project area or in close proximity thereto.
10. The proposed project provides an opportunity for economic benefit with minimal and temporary alteration of the project area.
11. The extent of any adverse environmental impact from the proposed project is minimal.
12. If conducted properly, the proposed permit project, with the modifications incorporated herein, includes feasible safeguards to avoid any adverse environmental impact.
13. The proposed project, as modified by this Order, will have minimal impact upon the value and enjoyment of adjoining landowners.

CONCLUSIONS OF LAW

Based upon the foregoing 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 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996).
2. S.C. Code Ann. § 48-39-150 (Supp. 1996) and 23A S.C. Code Ann. Regs. 30-6 (Supp. 1996) authorize the Administrative Law Judge Division with jurisdiction to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. OCRM is the subdivision within DHEC charged with administering the State's coastal zone policies and issuing permits for docks and piers in coastal zone areas.

1. S.C. Code Ann. § 48-39-50 (Supp. 1996) provides the authority for DHEC to promulgate regulations relating to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code.
2. 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1996) are the applicable regulations governing the management, development, and protection of the coastal zone areas of the state.
3. The project in question is located in a critical area under S.C. Code Ann. § 48-39-10(J) (Supp. 1996); 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1996); 23A S.C. Code Ann. Regs. 30-10(A) (Supp. 1996).
4. Section 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11 (Supp. 1996) set forth the guidelines to be used in assessing the impact of a project in a critical area.
5. There are no specific OCRM regulations or statutes that deal directly with permits which authorize or regulate clamming operations.
6. 23A S.C. Code Ann. Regs. 30-11 (Supp. 1996), which sets forth the general guidelines for all projects in tidelands and coastal waters requiring critical area permits, provides the applicable criteria for permits authorizing and/or regulating clamming operations.
7. The proposed project requires a waterfront location. 23A S.C. Code Ann. Regs. 30-11(B)(1) (Supp. 1996).
8. The proposed project will not harmfully obstruct the natural flow of navigable water nor unreasonably interfere with navigation. 23A S.C. Code Ann. Regs. 30-11(B)(2) (Supp. 1996).
9. The proposed project will increase the production of clams in the project area, but will have minimal impact upon the production or protection of other marine life or wildlife. 23A S.C. Code Ann. Regs. 30-11(B)(3) (Supp. 1996).
10. The proposed project should not cause erosion, shoaling, or creation of stagnant water. 23A S.C. Code Ann. Regs. 30-11(B)(4) (Supp. 1996).
11. The proposed project will have minimal impact upon existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational resources. 23A S.C. Code Ann. Regs. 30-11(B)(5) (Supp. 1996).



12. The proposed project will have minimal or no impact upon the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites. 23A S.C. Code Ann. Regs. 30-11(B)(6) (Supp. 1996).
13. The economic benefits of the proposed project outweigh the benefits of preserving the project area in its unaltered state. 23A S.C. Code Ann. Regs. 30-11(B)(7) (Supp. 1996).
14. The extent of any adverse environmental impact from the proposed project is minimal and can be avoided or minimized by reasonable safeguards. 23A S.C. Code Ann. Regs. 30-11(B)(8) (Supp. 1996).
15. The proposed project includes feasible safeguards to avoid adverse environmental impact resulting from the proposed project. 23A S.C. Code Ann. Regs. 30-11(B)(9) (Supp. 1996).
16. The proposed project, as modified by this Order, will have minimal impact upon the value and enjoyment of adjoining landowners. 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 1996).
17. Pursuant to S.C. Code Ann. Regs. 30-2(I), if an adjoining landowner of a critical area files an objection to a permit application based upon a claim of ownership, the application must be deemed incomplete; however, the adjoining landowner must also file a court action in the court of common pleas pursuant to S. C. Code Ann. § 48-39-220 (Supp. 1996) to adjudicate the property ownership dispute. If no such circuit court action is commenced, the permit must be processed. Because no legal action is pending in which a claim of ownership of the proposed project area is in issue, the permit was rightfully processed and this tribunal has no authority to consider or decide issues relating to Harmony Hall's claims of marshland ownership.
18. Specific measures necessary to protect the public interest may require the inclusion of additional conditions upon a proposed permit before it is approved. S.C. Code Ann.

§ 48-39-150(B) (Supp. 1996); 23A S.C. Code Ann. Regs.30-4(A) (Supp. 1996).

1. Each of the additional conditions ordered herein are specific measures necessary to protect the public interest pursuant to S.C. Code Ann. § 48-39-150(B) (Supp. 1996) and 23A S.C. Code Ann. Regs. 30-4(A) (Supp. 1996).
2. Pursuant to ALJD Rule 29(B), any issues raised in the proceedings but not addressed at the hearing or in this Order, are deemed denied.
3. All applicable regulations were followed during the permit application and decision making process. 23A S.C. Code Ann. Regs. 30-2, 30-4, and 30-6 (Supp. 1996).
4. Using the guidelines set forth in § 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11 Supp. 1996), the proposed project, as modified by this Order, meets the applicable criteria for issuance of a critical area permit.

ORDER

IT IS THEREFORE ORDERED that Permit OCRM-96-1G-055-P is approved as proposed, with additional conditions incorporated as set forth below:

A. Condition 1 of the permit is struck in its entirety and amended to read:

1. Provided the location and description of the proposed project is modified to exclude any areas of Walpoo Creek, but to specifically include two separate growout areas, described as follows: a large growout area on and adjacent to mud flats of Toogoodoo Cree and adjacent to Sandfield Creek; and a smaller growout area east of the large growout on or adjacent to an unnamed creek which feeds into Walpoo Creek which is located adjacent to an island owned by James A. Cox and an island owned by Harmony Hall Plantation; all more fully delineated and shown on Revised Attachment "A," incorporated herein.

B. The following additional conditions are also incorporated:

17. Provided that no clam trays placed in the smaller growout area, as shown on Revised Attachment "A," shall be placed on the loop of the unnamed creek near the Harmony Hall island.

18. Provided that applicant shall not block boat access or impede navigation through the unnamed creek near the Harmony Hall island in the smaller growout area, as shown on Revised Attachment "A."

19. Provided that the applicant shall not increase the number of clam trays used within the permitted project area by more than 250 per year.

20. Provided that prior to extension of the permit, the applicant must give public notice of his intention to have the time period for the permit extended and OCRM must allow, accept and consider public comment prior to granting an extension.

AND IT IS SO ORDERED.

___________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May 8, 1997

Columbia, South Carolina