SC Administrative Law Court Decisions

This matter comes before me upon petition for a contested case hearing pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1997), S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997), and 23A S.C. Code Ann. Regs. 30-6(B) (Supp. 1997) by Petitioners in response to the application of Respondent DeBordieu Colony Community Association (hereinafter referred to as "DeBordieu Colony" and/or "DeBordieu") for a critical area permit and Section 401 water quality certification to perform maintenance dredging in the DeBordieu canals in Georgetown County, South Carolina. The South Carolina Department of Health and Environmental Control (hereinafter referred to as "DHEC"), Office of Ocean and Coastal Resource Management (hereinafter referred to as "OCRM") preliminarily approved the permit application with conditions. Petitioners oppose issuance of the permit. A contested case hearing was conducted in Georgetown at the Georgetown County Courthouse on July 7 - 10, 1997, and at the Administrative Law Judge Division in Columbia on August 28, 1997. Counsel submitted proposed orders on or about November 3, 1997, pursuant to Order of the Court. Upon review of the relevant facts and applicable law in this matter, and upon consideration of the proposed orders submitted, I find and conclude that the permit, as proposed, fails to include adequate measures to protect the public interest. Therefore, issuance of the permit is conditioned upon modification of the permit to incorporate additional safeguards to address those concerns, all of which are more fully set forth herein.

A. The Existing Canals

The DeBordieu canals are man-made navigable waterways comprised of a main channel which extends from Debidue Creek along the perimeter of Debidue Island for approximately two miles and several connected dead-end, finger canals leading inland from the main channel. The main channel, near its confluence with Debidue Creek, has a boat ramp and basin at which all DeBordieu residents may launch their boats. The canals are navigable public waterways, but all upland adjacent to the canals are part of DeBordieu Colony.

DeBordieu Colony is a private, gated, residential community located on Debidue Island, in Georgetown County, South Carolina, with approximately 1,200 residential lots and various recreational amenities. Approximately 129 of the residential lots have frontage on the DeBordieu canals. Many of the residents on the canal have docks and boats and utilize the canal for access to Debidue Creek and North Inlet. All DeBordieu residents have the right of boat access to Debidue Creek and North Inlet from a boat basin located on the main canal.

Although somewhat stabilized, the DeBordieu canals have become more shallow from natural silting and sloughing since they were last dredged in the 1970's. Because the canals have become more shallow, navigation during some tidal stages has gotten difficult or impossible in some portions of the canals. The main canal remains navigable for most small watercraft during all tidal stages; however, many portions of the finger canals are not navigable except during the highest tidal stages. The natural processes have created conditions in the finger canals which are very similar to conditions in the ends of natural tidal creeks, such as wetlands and mudflats.

B. North Inlet Estuary

The DeBordieu canals are part of the North Inlet estuary. The North Inlet estuary is a relatively pristine ecosystem composed of a semi-enclosed body of water surrounded by terrestrial areas, with major aquatic connection to the Atlantic Ocean and minor connections to Winyah Bay. It includes a series of creeks, tidal marshlands, islands, and uplands. Recreational boat access to North Inlet is predominately from: (1) DeBordieu Colony, via the canals; or (2) Georgetown, starting at either East Bay Park or South Island Ferry, across Muddy Bay through Jones Creek or No Man's Friend.

In close proximity to the DeBordieu canals are the Baruch Institute and North Inlet/Winyah Bay National Estuarine Research Reserve. The Baruch Institute is owned by a private foundation and operated as a marine science lab by the University of South Carolina. The purpose of the North Inlet/Winyah Bay National Estuarine Research Reserve is to preserve and manage valuable natural resources for long-term research of estuarine ecosystems. While the canals are not within the core or buffer zone of the North Inlet/Winyah Bay National Estuarine Research Reserve, the waters of the canals flow directly into and from the waters of the Reserve.

North Inlet is one of the few pristine estuarine sites left in the United States and has been the site of long-term ecological studies for 25 years, playing a vital role as a test control site for the normal functions of estuaries. Scientists who have participated in research in North Inlet have compiled datasets that have national and international significance. The majority of the waters of North Inlet are classified Outstanding Resource Waters, the highest classification of waters within South Carolina.

C. Description of Proposed Project

DeBordieu Colony proposes to dredge approximately 78,500 cubic yards of material from about 15,500 linear feet (16.1 acres) of existing canals at the DeBordieu Colony development in Georgetown County for the purpose of maintaining navigability for small, private, recreational boats of not more than 22 feet in length during all tide stages. The applicant seeks to have the proposed work performed to restore a uniform bottom depth of -3 feet mean low water (hereinafter referred to as "MLW") throughout the main channel and finger canals of the man-made DeBordieu canal system. The proposed dredging would establish a uniform bottom depth of -4.5 feet MLW, except in smaller, finger canals where the depth would be -4.0 feet MLW. The dredged area would have a maximum top width of about 50 feet, except in the finger canals, where the width would vary from 10 feet to 25 feet. As a result of the proposed dredging, 2,500 square feet (.06 acres) of spartina alternifora marsh would be impacted, along with an undetermined amount of intertidal mud flat. The dredged material would be placed in an upland disposal site on the DeBordieu Colony property, and drainage from the disposal site would flow into Beach House Pond.

DeBordieu received water quality certification and a critical area permit for the proposed dredging from DHEC and OCRM. The permit contains both general and special conditions. A timely request for a contested case hearing on the certification and permit was filed by three DeBordieu residents, Raymond M. Leonard, Jr., William Buck, and C. Claymon Grimes, Jr., and by three environmental groups, Sierra Club, South Carolina Wildlife Federation, and the League of Women Voters of Georgetown County.

D. Opposition to Proposed Project

Petitioners oppose issuance of the permit and certification out of concern that several significant negative environmental consequences will occur if the proposed dredging work is performed. Petitioners are particularly concerned that the proposed project will: (1) result in the creation of pockets of stagnant waters which would decrease flushing and violate State water quality standards; (2) permanently alter the aquatic ecosystem in the vicinity of the project such that its functions and values are impaired or eliminated; (3) adversely impact special or unique habitat, including the waters of North Inlet and North Inlet/Winyah Bay National Estuarine Research Reserve; (4) adversely impact research conducted by scientists associated with the National Estuarine Research Reserve; (5) disturb large areas of public trust waters and negatively impact marine life, including benthic organisms and spartina marshes; and (6) cause the sides of the canal to slough, resulting in the release of contaminants.

E. Evidence Presented at the Hearing

Upon the filing of requests for a contested case hearing by Petitioners, the case was transmitted to the Administrative Law Judge Division and assigned to the undersigned for hearing. A hearing was held on July 7-9, 1997, in Georgetown and was concluded on August 28, 1997, in Columbia. The parties presented extensive evidence in the form of exhibits and testimony from twenty-one witnesses. Petitioner Sierra Club presented the testimony of fourteen witnesses: Paul Kenny, Marjan Farzaad, Elizabeth Blood, Ken Stouffer, Rebecca Miller, John Dean, Leonard Gardner, Dennis Allen, Gerald Tiller, Steve Gilbert, John McKissick, Tim Casey, John Vernberg, and Bjorn Kjerfve. Petitioner William Buck presented testimony from Charles Bergland and himself. DHEC/OCRM presented testimony from DHEC staff member, Rheta Geddings. DeBordieu presented testimony from four witnesses: Bart Baca, George Vickery, Stuart Hope, and Braxton Kyzer.

Lay witnesses testified about the present condition and navigability of the DeBordieu canals, as well as the means of access to North Inlet for non-DeBordieu residents and the anticipated impact of the spoil site on neighboring residents. Several DeBordieu canal residents testified regarding the need for dredging. Some believe the proposed dredging is necessary to maintain or regain navigability in the canals while others believe current canal depths are adequate to afford reasonable navigability.

Petitioners' expert witnesses focused on the potential environmental harms which they contend would result from the proposed project. Marjan Farzad of the EPA testified that because this project had never been initially permitted, it was improperly characterized as a maintenance dredging project. Ms. Farzad further expressed concern about the destruction of mud flats, sloughing of the walls of the dredged canals, and water quality impacts. Several scientists currently or formerly involved with research in North Inlet gave their opinions about the potential environmental impact of the proposed project. Doctors Blood, Dean, Allen, Kjerfve, and Vernberg testified that the proposed dredging would likely destroy mud flats and subtidal and intertidal salt marsh, decrease flushing in the canals, and alter water circulation patterns. In the opinion of the scientists, the result of such phenomena would have a detrimental impact upon the accuracy and usefulness of the collection of long-term datasets by scientists working in the National Estuarine Research Reserve.

OCRM Permit Coordinator, Steve Moore, and Rheta Geddings, DHEC Section Manager of the Water Quality Certification Standards and Wetlands Program Sections, testified about the permitting processes that were followed for the project. Mr. Moore explained the procedures and criteria followed and applied by OCRM in the evaluation of DeBordieu's critical area permit application, while Ms. Geddings covered the water quality certification process. Mr. Moore and

Ms. Geddings testified at length about the reasoning that led them to conclude there would be no negative impact from the project to the North Inlet system.

Experts Bart Baca and Braxton Kyzer testified on behalf of DeBordieu in support of the proposed project. Baca is employed by Coastal Science Associates, an environmental firm located in Jacksonville, Florida. Mr. Baca conducted a 25-hour study in the DeBordieu canal system on June 23 and 24, 1997, and concluded from his 25-hour sampling that the finger canals showed many indicators of having poor flushing and that the proposed dredging would have a positive impact upon that condition. Mr. Kyzer, formerly with the Army Corps of Engineers, is a dredging expert with over 30 years of experience in all types of dredging and dredge material disposal in coastal South Carolina. He testified that the proposed dredging would have minimal impact outside the immediate dredge site.

The ultimate issue at stake in this matter is whether water quality certification and a critical area permit should be denied or granted for the dredging of the DeBordieu canal system and, if granted, under what conditions. In resolving that issue, general factors applicable to any

critical area activity and specific standards related to dredging must be considered. In addition, evidentiary issues regarding standard of proof and expert testimony must be addressed.

A. Standard of Proof

In weighing the evidence and making a decision on the merits in a contested case, the proper standard of proof to be applied is a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, Op. No. 24754 (S.C. Sup. Ct. filed January 26, 1998) (Davis Adv. Sh. No. 5); National Health Corp. v. South Carolina Dep't. of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); 25 S.C. Code Ann. Regs. 61-72

§ 702(B) (Supp. 1997).

In various Prehearing Statements and Proposed Orders filed in this case, several references have been made by counsel as to proof of facts by "substantial evidence." The substantial evidence rule is an appellate standard of review rather than a trial-level standard of proof. See S.C. Code Ann. § 1-23-380(A)(6)(e) (Supp. 1997). This Court must weigh the evidence in order to determine, by a preponderance or greater weight of the evidence, whether the application should be granted. If this Order is appealed, then it is left to an appellate tribunal to determine if this decision is supported by substantial evidence in the record.

B. Expert Testimony

Petitioners presented several expert witnesses to testify on the subject of potential negative environmental consequences from the proposed project. Respondents argue that the expert testimony offered by Petitioners amounts to mere speculation and is insufficient to satisfy the requirements found in Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991).

Typical of the expert witnesses' testimony in question was that of Dr. Elizabeth Blood. She testified that there was "a possibility" that deepening the finger canals would worsen water quality and then described how it "could" happen, if certain other factors she listed occurred; however, Dr. Blood did not say that she anticipated such factors to occur. Other experts testified that they had "concerns" that stagnant water "might" result from dredging.

According to Rule 702, SCRE, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise." Each of the experts offered by Petitioners was qualified as an expert in a particular field of science relevant to the case. An expert is granted wide latitude in determining the basis of his or her opinion. Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Op. No. 2748 (S.C. Ct. App. filed November 17, 1997) (Davis Adv. Sh. No 32); Berkeley Elec. Coop. v. S.C. Public Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984).

Under Baughman and Clark v. Greenville County, 313 S.C. 205, 437 S.E.2d 117 (1993), expert testimony is required to meet the "most probably" standard to be admissible. That is, the expert must testify that, taking into consideration all the data, it is his or her professional opinion that the result in question most probably came from the cause alleged. An expert is not required, however, to actually use the words "most probably" as a qualifier:

In determining whether particular evidence meets this test it is not necessary that the expert actually use the words "most probably." Gamble v. Price, 289 S.C. 538, 347 S.E.2d 131 (Ct.App. 1986). It is sufficient that the testimony is such "as to judicially impress that the opinion . . . represents his professional judgment as to the most likely one among the possible causes . . . ." Norland v. Washington General Hospital, 461 F.2d 694, 697 (8^th Cir. 1972).

Baughman, 306 S.C. at 111.

For most of the testimony presented by Petitioners, the Baughman standard has been met. While it is true that some witnesses' testimony about some impacts used the word "possible," the majority of the testimony clearly demonstrated that the opinions represent professional judgment that the predicted impacts most probably will occur. Rather than examine the known results of a past event to establish proximate cause as in a medical malpractice case, experts in this case were asked instead to attempt to predict the probable effects of a possible future event. The potential environmental effects of the proposed dredging are relevant to the issues involved in this case, and

Petitioners' experts, given their scientific and educational qualifications, were proper witnesses to provide such information.

In any event, the trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves and may accept the testimony of one expert over another. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). Faced with divergent testimony from experts, the fact finder may reach a conclusion not proposed by either expert, so long as the court's calculation is reasonable in light of the evidence and sufficient to show that the result reached is not opposed to the clear weight and preponderance of the evidence. See Santee Oil Co., Inc. v. Cox, 265 S.C. 270, 217 S.E.2d 789 (1975); See also McDuffie v. O'Neal, ___ S.C. ___, 476 S.E.2d 702 (Ct. App. 1996).

C. Analysis of the Proposed Project

Analysis of the proposed project requires application of "public interest" and/or "public need" tests under 23A S.C. Code Ann. Regs. 30-1(C)(11) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-12(G) and (H) (Supp. 1997). Preliminary to that inquiry is a more basic examination applicable to all critical area permits.

1. OCRM's Ten General Considerations

The Coastal Zone Management Act contains a statement of legislative findings, which acknowledges that the competing demands upon the State's coastal resources creates a need to protect natural systems in the coastal zone while balancing economic interests. S.C. Code Ann.

§ 48-39-20(F) (Supp. 1997). To accomplish that balance, the Act sets forth in § 48-39-150 and 23A S.C. Code Ann. Regs. 30-11 (Supp. 1997) ten general factors to be considered and weighed for all critical area permit applications. The threshold step in any OCRM permitting case is to apply those ten general considerations to the proposed activity.

Application of the ten general considerations to this proposed dredging project raises several "red flags." For instance, § 48-39-150(3) requires evaluation of 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, including but not limited to water and oxygen supply." It is undisputed that the proposed dredging would have a negative impact on the production of fish, shrimp, oysters and other aquatic organisms, through the removal of mudflats and marshes. Oysters would be directly impacted by dredging and sloughing. Dissolved oxygen in the water column would be reduced by the deepening of the canals.

Section 48-39-150(4) requires analysis of the "extent to which the activity could cause erosion, shoaling of channels or creation of stagnant water." There is evidence that if the project were completed as proposed, the banks of the canal would erode and that the waters of the canal would become more stagnant.

Given the probable resulting adverse environmental impacts of the proposed project,

§§ 48-39-150(8) and (9) are acutely relevant. They relate to the availability and implementation of reasonable measures to avoid negative environmental impacts. The proposed project includes several safeguards aimed at avoiding an adverse environmental impact, but it does not include all feasible safeguards. The imposition of further reasonable safeguards must be considered to determine if they can avoid, mitigate, or minimize the adverse environmental impact of the project without jeopardizing the viability of the project.

With modification of the scope and depth of the proposed dredging, the adverse environmental impact of the project can be significantly and reasonably reduced while the main objectives of the project are still protected. Before deciding the extent of modification necessary to meet that fine balance, however, one must take the next step in the permit analysis by looking at the specific standards for dredging permits.

2. Public Need/Interest Test for Dredging Projects

There is considerable disagreement among the parties as to the applicable test for issuance of a maintenance dredging permit. At the center of that disagreement is the use of the phrase "public need."

OCRM Regulations 30-12(G) and (H) express State policy and provide the evaluative criteria for dredging permit applications. Regulation 30-12(G) sets forth the specific project standards for dredging and filling. It provides that "dredging and filling in wetlands can always be expected to have adverse environmental consequences; therefore, the Department discourages dredging and filling. There are cases, however, where such unavoidable environmental effects are justified if legitimate public needs are to be met." (emphasis added) Regulation 30-12(H)(1) addresses dredging to create and maintain navigational channels: "Certain dredging activities involve the creation and maintenance of navigation channels and access canals. These activities have a potential for severe environmental impacts and should meet a demonstrated public need." (emphasis added).

Although OCRM regulations do not define the term "public need," "public interest" is defined. Regulation 30-1(C)(11) defines the term "public interest" as follows:

11. Public interest - As used within these Rules and Regulations, public interest refers to the beneficial and adverse impacts and effects of a project upon members of the general public, especially residents of South Carolina who are not the owners and/or developers of the project. To the extent that, in the opinion of the Department, the value of such public benefits is greater than the public costs embodied in adverse environmental, economic and fiscal effects, a proposed project may be credited with net public benefits.

Petitioners argue that "public need" and "public interest" are interchangeable terms. Accordingly, they assert, applying the definition of "public interest" of R. 30-1(C)(11), the impact of the proposed project upon members of the general public which are not owners or developers of the project is a primary consideration in calculating the net public benefits of the project. Because the benefit to be realized from the project by the non-DeBordieu public is negligible while the adverse impact is potentially great, Petitioners insist that there is no demonstrated public need for the project.

OCRM asserts that "public interest" and "public need" are not synonymous. It maintains that "public interest" is the higher regulatory standard of the two. In fact, according to OCRM Permit Administrator Steve Moore, the meaning of "public need" as used as a permitting standard in R. 30-12(G) and (H) is not even the same for all dredging permit applications. Moore testified at the hearing:

I think when you look at whether you're looking at the creation of a new canal or you're looking at a permit application to do maintenance dredging, I think you're going to have a different test applied to what is a demonstrated public need. I think here the only way to make any sense of this is to say, for maintenance dredging, the demonstrated public need would be, does the thing need to be dredged or not.

(Tr., Vol. III, pp. 90-91.)⁽¹⁾ Mr. Moore also testified that a demonstration of "public interest" is "a whole different thing," than a demonstration of "public needs."

While the results of a "public need/ public interest" analysis may vary depending upon whether the project in question is for canal creation or canal maintenance, the test itself should not. Whether "public need" is synonymous with "public interest" or merely a component thereof, the standard for analysis of the public benefits, costs, and impact of the project should be essentially the same. It is preposterous to suggest that administrative review of a proposed project using either definition could justifiably weigh the benefits of the project without also considering its potential negative effects. If "public need" is measured only in terms of benefits, it must not be the sole criteria for permitting purposes. Needs must be weighed along with environmental concerns. Under R. 30-12(G) and (H), the mandate to consider the public need for a dredging project is tempered with the caution to consider the environmental effects of the project.

I conclude that "public needs" may refer solely to public benefits, but when assessing the public needs of a dredging project, the potential adverse impacts of the project must also be identified and weighed under OCRM Regulations 30-12(G) and (H). Implicit in that evaluation is consideration of the overall public interest of the project. In doing so, it is reasonable to rely upon the definition of "public interest" contained in the definitional section of R. 30-1(C)(11).

3. Assessment of Public Need and Public Interest for Proposed Project

a. Navigational Access

The primary purpose for the proposed project is to improve and protect navigational access to Debidue Creek and North Inlet for DeBordieu residents. In fact, all reasons stated by the parties for dredging the DeBordieu canals are directly or indirectly related to that purpose. Respondents assert that, given the physical state of the canals and the navigational limitations that the current condition of the canals imposes upon DeBordieu residents, there is a legitimate public need to perform the work sought.

Petitioners submit, however, that there is no compelling need for the project and that such a project is contrary to the public interest. Adjacent to a private, guard-gated community, DeBordieu's canal system is utilized almost exclusively by the residents of DeBordieu and their guests. The residents of DeBordieu already have access to North Inlet which is equal to or better than the general public's access. Within DeBordieu, only about 129 of the Development's 1,200 residential lots are on the canal, but everyone in DeBordieu has access to a boat ramp at the lower end of the canal. For non-DeBordieu residents to access North Inlet by boat, they must travel from either East Bay Park or South Island Ferry and across Muddy Bay through Jones Creek or No Man's Friend. The route can be treacherous, requiring boaters to recognize and avoid high spots, mud banks, oyster bars, and sandbars, and relearn channels altered by the disposal of dredge spoil in Winyah Bay.

"Public need" does not exclude the preservation of privately created, artificial navigation channels and the preservation of waterfront property. Although the DeBordieu canals are used almost exclusively by DeBordieu residents, the general public has a right and means of access to the canals. The man-made channels are part of the public navigable waters of the State of South Carolina. See State v. Head, Op. No. 2732 (S.C. Ct. App. filed December 19, 1997) (Davis Adv. Sh. No. 2), in accord with Hughes v. Nelson, 399 S.E.2d 24 (Ct. App. 1990). The law of South

Carolina recognizes recreational navigation as a legitimate public use of navigable waters of the State:

It is important to note . . . the strong emphasis and protection afforded public boating. As stated in State v. Columbia Water Power, 63 S.E. at 888,

". . . there cannot be the least doubt that the public is as much entitled to be

protected in its use [of navigable waters] for floating pleasure boats as for

any other purpose." The use of this waterway by the general public for

boating, hunting and fishing is a legitimate and beneficial public use.

State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716, at 719 (1986)

While State law protects navigation, that protection is not absolute. The law also protects wetlands, water quality, special aquatic sites, critical areas, and National Estuarine Research Reserves. Under OCRM permitting regulations, the protection of public trust waters and wetlands must be weighed along with public navigation interests. The question is whether there is a sufficient demonstrated public need for this dredging project which justifies the attendant harm and risk of harm to resources.

b. Adverse Environmental Impact of the Proposed Project.

Having recognized that recreational navigation is a benficial public use of tidelands and coastal waters, the potential adverse environmental impact of the proposed project must be determined and weighed. Petitioners proved by a preponderance of evidence that the dredging as proposed would eliminate or alter existing nursery areas, permanently alter the aquatic ecosystem in the vicinity of the project, such that its functions and values will be eliminated or impaired, and would affect the National Estuarine Research Reserve.

It is undisputed that mudflats and spartina marsh serve valuable functions in an estuarine system, especially as nursery and feeding areas. Portions of the finger canals have silted in to the point that they resemble natural intertidal mudflats and salt marsh and operate as nursery areas. Those intertidal areas are important as corridors for animals that use saltmarsh, and many species of fish depend upon intertidal mudflats as a source of food.

Dead-end canals are generally associated with poor water quality, resulting in high or low concentrations of nutrients, hydrocarbons and fecal coliforms, and a community of organisms which is lower in diversity than natural systems. Dredging of intertidal and shallow subtidal areas in the dead-end finger canals will eliminate important nursery areas, hinder flushing, create stagnant water, and alter the natural processes of the estuarine ecosystem.

Deepening of existing subtidal areas will temporarily disrupt and displace established subtidal habitat and associated communities. If the deepened subtidal areas do not experience extended periods of anoxic conditions from sluggish or stagnant waters, the temporarily disrupted or displaced habitat may eventually recover and/or return to the area. If anoxic conditions persist after dredging, however, such negative consequences may be long-term or permanent.

Dredging the canals will increase the potential for stagnant water, particularly in the dead ends of the canals. Deepening the canals would, on average, decrease the flushing action or amount of water exchanged by the tide. The action of flushing takes out a build-up of nutrients, contaminants, sediments, etc., and allows for an exchange of water in areas that were isolated, thereby mixing the stagnant water with new water. Deepening the canal will also result in stratification of oxygen in the water column. North Inlet is a heterotrophic system; that is, there are more organisms that respire than create dissolved oxygen through photosynthesis. Without mixing, practically no dissolved oxygen would develop at the bottom. Deepening the canal will cause a greater volume of water to remain in the canal. Therefore, residence time will be increased and there will be more stagnant or old water sitting in the canal. The loss of intertidal habitat, in terms of productivity, would cause a general reduction in the production of shrimps, crabs and fishes in the estuary.

c. Impact upon the North Inlet/Winyah Bay National

Estuarine Research Reserve

25A S.C. Code Ann. Regs. 61-101(F)(5)(d) (Supp. 1997) requires denial of certification "if the proposed activity adversely impacts special or unique habitats, such as . . . National Estuarine Research Reserves . . . ." Several witnesses testified that the proposed dredging will adversely impact the North Inlet/Winyah Bay National Estuarine Research Reserve. Neither OCRM nor DeBordieu presented any reliable, probative evidence to the contrary. Steve Moore and Rheta Geddings testified that OCRM and DHEC concluded that the Reserve would not be impacted. Excepting their conclusions, there is nothing to contradict the expert testimony of Dennis Allen, John Vernberg and others that adverse impacts on the Reserve are more probable than not.

There is a dual public interest in protecting the North Inlet/Winyah Bay National Estuarine Research Reserve from adverse environmental consequences. The majority of the waters of North Inlet are classified as Outstanding Resource Waters, the highest classification of waters within South Carolina. Outstanding Resource Waters are "freshwaters or saltwaters which constitute an outstanding recreational or ecological resource. . . ." R. 61-68(G)(1). The beautiful, largely undeveloped, and unique coastal area is open to the general public and is extremely popular with recreational boaters and fishermen.

In addition to having scenic and recreational value, the Reserve is a scientific asset. The North Inlet/Winyah Bay National Estuarine Research Reserve is one of the few pristine estuarine sites left in the United States. It has been the site of long-term ecological studies for decades as a test control site for the normal functions of estuaries. Scientists have compiled datasets of national and international significance. If the North Inlet ecosystem were materially altered by man-made means, use of the Reserve as a test control site would be compromised and the value of past and future datasets diminished.

d. Water Quality Certification

DHEC Regulation 61-101(F)(5)(a) provides that water quality "[c]ertification will be denied if (a) the proposed activity permanently alters the aquatic ecosystem in the vicinity of the project such that its functions and values are eliminated or impaired." The greater weight of the evidence in this case is that dredging the mudflats and spartina marsh in the finger canals would permanently alter the aquatic ecosystem within this area, such that its functions and values would be impaired.

DHEC Regulation 61-101(F)(5)(b) requires denial of water quality certification if "there is a feasible alternative to the activity, which reduces adverse consequences on water quality and classified uses." Rheta Geddings testified that DHEC concluded that there was no feasible alternative based on her conclusion that the dredging would not damage the estuarine system. Her analysis, however, ignored the impacts of dredging the finger canals to the extent that the loss of nursery habitat or the loss of this existing use were not considered. Her report also failed to consider impacts on the National Estuarine Research Reserve. Her analysis was inadequate, particularly in light of the mandate of Regulation 61-101(F)(3), which requires DHEC to address and consider "all potential water quality impacts of the project, both direct and indirect, over the life of the project. . . ."

4. Feasible Alternatives to the Proposed Project

Possible alternatives to the proposed work should have been identified and carefully considered by DHEC/OCRM. They were not. In deciding to issue the permit, OCRM did not consider whether the general public had a need to deepen the DeBordieu canals. Steve Moore concluded that since OCRM had regularly issued dredging permits for the maintenance of man-made canals in the past, there must be a need for all maintenance dredging permits. Mr. Moore did look at whether the canal physically needed to be dredged to the depth requested by DeBordieu Colony, but his analysis was overly simplistic and failed to address the individual merits of the application as required by § 48-39-150(A).

Legitimate environmental concerns surround the proposed project. In recognizing those concerns, this Court must perform the "alternatives" analysis absent in the initial permitting review process by OCRM. I must review the evidence and consider alternatives to or variations of the proposed project and determine which, if any, appropriately address and resolve the inadequacies of the proposed plan. §§ 48-39-150(A)(8) and (9); § 48-39-150(B); R. 30-11(8) and (9); R. 61-101(F)(5)(b).

Petitioners claim that several feasible alternatives to dredging exist, the first of which is to do nothing. They claim DeBordieu residents have adequate access to North Inlet at present. While residents must consult a tide chart and time their outings accordingly, life in the coastal zone revolves around the tide, and there is nothing unusual about having to adjust plans to accommodate the changing tides. A second alternative was offered through the testimony of Paul Kenny and John McKissick. They assert that DeBordieu residents need only to study the canal, learn and mark its shallow spots, find the channels, and when all else fails, get their feet wet. A more moderate alternative was described by Marjan Farzad of the EPA: allow the dredging, but scale down the scope and extent of the project to lessen its environmental impact. It is an appealing but tricky solution. That approach requires a practical balancing of interests along with a common sense application of complicated scientific principles. It must not simply be a compromise. To work, the alterations to the proposed project must be rationally related to the purpose of diminishing the negative effects of the project to an acceptable level, but they must not be so extensive as to render the permit useless.

Upon an exhaustive review of the law and record in this matter, I find and conclude that the permit, as proposed, fails to include adequate measures to protect the public interest and feasible safeguards to avoid unnecessary adverse environmental impacts. Extensive dredging would unquestionably have serious adverse environmental impacts. That is not to say, however, that a permit allowing any dredging activity in the DeBordieu canals should be denied. Modification of the proposed permit to amend or add conditions to eliminate or reduce to an acceptable level the adverse environmental consequences of the project can be accomplished.

Limited dredging of some portions of the DeBordieu canals can be performed without significant risk of serious adverse short-term or long-term impacts upon the geological, biological, hydrological, and ecological components of the immediate and surrounding estuary. The solution lies in determining which portions of the canal system should be allowed to be dredged, and to what depth, before serious adverse impacts would result.

D. Modification of the Permit

OCRM's Statement of Policy in R. 30-1(A) contains the following declaration:

The marshes constitute a fragile ecosystem; consequently, indiscriminate dredging and filling, degradation of water quality or unsound building and development practices can have long-term detrimental effects. All development need not be prohibited; rather, the range of favorable and unfavorable results needs to be realized, and analysis made to determine priorities, evaluate alternatives, anticipate

impacts, and suggest the best methods and designs to carry out wise development of these resources.

With that policy statement as a guide, issuance of a critical area permit may be conditioned upon the applicant's amending the proposal to take whatever measures are necessary to protect the public interest. S.C. Code Ann. § 48-39-150(B) (Supp. 1997). Therefore, issuance of the permit is conditioned upon modification of the permit to incorporate stipulations to address those concerns in the manner outlined below.

1. Overall Scope of Project

Given that any dredging activity will cause some level of disruption to the surrounding ecosystem, an overall decrease in the amount of material disrupted and/or removed from the canals will necessarily have a lesser impact upon the surrounding estuarine environment. Dr. Allen estimated that deepening the canals to a uniform depth of -4.5' MLW would require dredging 80-90% of the canal system, while deepening the canals to a depth of -3.0' MLW would require dredging of only 30-40% of the canals. By excluding intertidal areas from the dredge zone and minimizing the depth of the dredge cut in those areas that are dredged, the amount of dredge activity and amount of spoil removed will be reduced and resulting impact lessened.

2. Dredging of Finger Canals

The vast majority of the adverse environmental consequences associated with the proposed project are directly linked to dredging the dead-end finger canals. While the main DeBordieu canal is largely navigable, many parts of the finger canals are not navigable except during the highest tidal stages because of the presence of intertidal mudflats, salt marsh, and shallow tidal areas.

There is a strong correlation between dead-end canals and poor water quality, resulting in high or low concentrations of nutrients, hydrocarbons and fecal coliforms, and a community of organisms which is lower in diversity than natural systems. Dead-end canals do not exist in natural estuarine ecosystems. The DeBordieu finger canals are not currently exsperiencing water quality problems because they have taken on the characteristics of natural areas, but dredging the dead-end finger canals will disturb or remove those natural-like areas. The result would be flushing and stagnant water problems which will eliminate important nursery areas and alter the natural processes of the estuarine ecosystem.

The flushing process in existing intertidal and subtidal areas of the DeBordieu canals must not be materially altered. That flushing process is vital to maintaining the delicate balance of natural aquatic and estuarine life. Because of the importance of intertidal and shallow subtidal areas in the estuary, no dredging must be permitted in the finger canals, Colony Pointe canal, or any intertidal areas which are not part of the main channel. Natural processes should be allowed to continue to dictate uses of those wetland and marsh areas.

Navigation in many portions of the finger canals is difficult, if not impossible. Dredging those areas would re-create navigable passage ways where none have existed for many years. Not dredging the finger canals may result in even less navigational use of them as the they continue to silt and slough, but access to North Inlet for DeBordieu residents living on the finger canals will still be available as long as the DeBordieu boat basin located on the main canal is functional. The need and interest in protecting the intertidal areas in the finger canals and preventing flushing and stagnant water problems in the estuary overrides the need for and interest in dredging wetlands and marsh land.

3. Depth of Dredge Cut in Main Canal

Since its development, DeBordieu Colony has enjoyed navigational access to North Inlet. Some residents have access from docks on the main channel, some from docks on a finger canal, and others have access from the community boat ramp. The main canal, especially that portion from the boat basin out to Debidue Creek, is essential to North Inlet access. The owners of the 1,200 lots in DeBordieu have an interest in and reasonable expectation of continued boat access to and from their community. Navigation in the main canal is currently possible for most small watercraft during most, if not all, tidal stages. Dredging the main canal will improve navigation, but more importantly, it will ensure the future use of existing navigational access. For that

reason, dredging the main canal is of greater public interest and need than the dredging of the finger canals.

Any dredging activity in the DeBordieu canals will result in short-term adverse impacts upon the immediate and surrounding estuary system. Deepening of existing subtidal areas will temporarily disrupt and displace established subtidal habitat and associated communities, but if the deepened subtidal areas do not experience extended periods sluggish or stagnant waters, the habitat should eventually recover and/or return to the area. Dependent upon the depth of the dredge cut, however, dredging the main canal should not have as significant an environmental impact as dredging the finger canals.

Generally speaking, slightly deepening existing subtidal areas should have a less disruptive effect upon the surrounding estuary than converting intertidal areas into subtidal areas through dredging.Accordingly, shallow dredging activity in the main canal is reasonable. Several of the scientists and residents protesting the proposed project even admitted that they were not opposed to spot dredging to remove humps in the main canal.

After a canal is dredged, the sides of the dredge cut will slough and collapse, creating a "U" shaped channel. According to dredging expert Braxton Kyzer, in the middle of the newly dredged canal the resulting depth of the canal will be the actual depth of the dredge cut. Any sloughing will be temporary, and the banks of the canal will stabilize. The amount of sloughing is dependent upon the type of sediment being dredged and the depth of the cut. Mud tends to slough and collapse more easily than sand. While the boat basin has a pluff mud bottom, most of the main DeBordieu canal has a sandy bottom. There is no reason, then, to dredge the sandy-bottomed main canal much deeper than the target depth. The boat basin may need a deeper cut, however.

As proposed, the permit calls for a target depth of -3 feet MLW; however, within the permit's project description, reference is made to dredging to a uniform bottom depth in the main canal of -4.5 feet MLW and in the finger canals of -4.0 feet MLW. OCRM's Steve Moore testified that he was under the impression that it was necessary to dredge to -4.5 feet MLW in order to reach the target depth of -3.0 feet MLW. Mr. Moore's testimony directly contradicts the testimony of Mr. Kyzer and the drawings submitted by DeBordieu. Respondent DeBordieu's Exhibit #16 shows that a channel dredged to -4.5 feet will have a final depth of -4.5 feet. It is only at the edges, where sloughing will occur, that a lesser depth would be realized.

The permit should be amended to prohibit all dredging in the finger canals and to limit the depth of the dredge cut in the main canal. The common right of usage of the boat basin by all DeBordieu residents and the pluff mud bottom of the boat basin justify a uniform dredge cut depth of -4.5 feet MLW, from the beginning of DeBordieu Canal (at its confluence with Debidue Creek) to and including the DeBordieu boat basin. Beyond the boat basin, limited dredging to remove humps in the main canal should be allowed to a maximum actual dredge cut depth of -3.5 feet MLW.

4. Protection of Shellfish Beds

All parties agree that OCRM erred in not including a special condition in the permit providing for the protection of existing shellfish beds in the dredge area. The only suggested language for such a condition was offered by Petitioners. Petitioners' suggestion appearing reasonable, the following Special Condition should be incorporated into the permit: "At a minimum, no dredging can take place within 15 feet of existing shellfish beds."

5. Silt Curtains

Special Condition #4 of the proposed permit requires the applicant to install a silt curtain across DeBordieu Channel just below Colony Cove for the duration of the project. Based upon the testimony of Braxton Kyzer, that silt curtain would be more effective if placed at the tip of Colony Point because it is a more constricted area. The curtain should be moved down the channel toward Debidue Creek as the dredge work enters that area. As proposed, the permit does not require any silt curtain protection for the dredging work to be performed between Colony Point and Debidue Creek.

Also, Mr. Kyzer suggested additional silt curtains be placed up the canal, at various intervals, to further confine the turbidity to the immediate area of dredge activity. No evidence was offered which contradicts Mr. Kyzer's assessment. Accordingly, amendment of Special Condition #4 to conform silt curtain requirements to Mr. Kyzer's suggestions is warranted.

6. Inspection of Dredging Activity

Special Conditions 13, 14, and 15 of the proposed permit provide for scheduling, monitoring, and enforcement of the dredging project. Because the project will occur in navigable waterways, but all adjacent lands are within a private community, public inspection of the dredging is practically impossible. To allow Petitioners the opportunity to inspect the dredge activity, an additional condition should be included in the permit requiring Respondents to inform Petitioners of the dredging schedule and to allow observation and inspection of dredging by Petitioners or their representatives. Petitioners have no right, however, to control, delay, or terminate the permitted activity. Any alleged violations of the terms of the permit must be reported to OCRM for investigation and possible enforcement action.

7. Spoil Site

Petitioners Buck and Leonard protest the issuance of the proposed permit mainly because of the proximity of the spoil site to their respective residences. Although the location of the spoil site may pose an unpleasant nuisance to nearby residences, no proof of adverse environmental impacts from the site was established. Petitioners alleged but failed to prove that superior alternative spoil site locations exist, that dredge sediment will contain contaminants, or that the operation of the spoil site will result in poor water quality and be injurious to the public health.

Special Conditions 10, 11, 12, and 13 of the proposed permit address the operation of the spoil site and set forth several restrictions and requirements which the applicant must adhere to. Special Condition 12 specifically requires development of a mosquito management plan. DHEC has the authority to stop work at any time if the spoil area is not operating as authorized or a violation of the permit is alleged. While helpful, those conditions do not exclude the possibility that nearby residents will experience some inconvenience or unpleasantness.

To further protect residents living in close proximity to the spoil site from problems associated with its operation, such as unsightliness, odors, insect infestation, and noise, an additional Special Condition requiring the applicant to develop a nuisance mitigation plan prior to work commencing is reasonable and not unduly burdensome. The plan must provide measures to mitigate the impact of the dredging and filling process and the attendant nuisances upon neighboring residents. Additionally, a condition requiring sediment analysis of the spoil material to determine whether there are contaminants in the sediments is an appropriate safeguard.

8. Conclusion

The modifications outlined above are calculated to protect the public's interest in maintaining and protecting its natural resources without sacrificing the primary goal of the project. If OCRM and DeBordieu Colony are willing to accept the above-described amendments to the permit, the permit is granted as amended. Without those modifications, the permit fails to adequately balance the public needs, interest, benefits, and costs involved in the project, and must be denied.

I find by a preponderance of the evidence:

Parties, Procedures, and Positions

1. Respondent DeBordieu Colony Community Association is the applicant for Critical Area Permit/Water Quality Certification 95-1X-232-P.
2. DeBordieu Colony Community Association seeks a permit and certification to undertake dredging of a canal system in the coastal and tidal area of Georgetown County at DeBordieu Colony Development.
3. Respondent DHEC is an agency of the State of South Carolina.
4. OCRM is a subdivision of DHEC involved in the regulation of activity in the coastal and tidal zones of the State.
5. On or about September 1, 1995, DeBordieu Colony Community Association filed an application with OCRM, application number 95-1X-232-P, to perform maintenance dredging of the DeBordieu canals.
6. Subsequent to September 1, 1995, DeBordieu Colony Community Association revised its initial application number 95-1X-232-P, and that revised application is the subject of the instant case.
7. OCRM issued public notices of the proposed project and conducted a public informational hearing on the application on August 6, 1996.
8. As a result of the public notice and public hearing, OCRM received numerous comments in support of and in opposition to the proposed project.
9. The United States Environmental Protection Agency, the U.S. Fish & Wildlife Service, the National Marine Fisheries Service and the S.C. Department of Natural Resources all recommended denial of this permit. (Tr. Vol. III, pp. 63-66).
10. Among residents of the DeBordieu Colony community there is significant disagreement about whether the proposed dredging is needed. (Tr. Vol. III, p. 89).

1. OCRM received no public comments supporting the dredging from persons who are not DeBordieu property owners. (Tr. Vol. III, p. 90).
2. On or about November 19, 1996, OCRM/DHEC issued Critical Area Permit/Water Quality Certification 95-1X-232-P to the applicant with general and special conditions.
3. Petitioners Raymond M. Leonard, Jr., William Buck, C. Claymon Grimes, Jr., Sierra Club, South Carolina Wildlife Federation, and League of Women Voters of Georgetown County timely requested a contested case hearing in the matter and the case was transmitted by DHEC to the Administrative Law Judge Division for hearing on December 5, 1996.
4. Petitioners Raymond M. Leonard, Jr., William Buck, and C. Claymon Grimes, Jr., are residents of DeBordieu Colony living in close proximity to the site of the proposed activity.
5. Petitioners Sierra Club, South Carolina Wildlife Federation, and League of Women Voters of Georgetown County, are non-profit organizations with an interest in the proposed activity.
6. After notice to all parties, a contested case hearing was conducted in Georgetown at the Georgetown County Courthouse on July 7 - 10, 1997, and at the Administrative Law Judge Division in Columbia on August 28, 1997.
7. By Order of this Court, counsel submitted proposed orders on or about November 3, 1997.
8. Petitioners oppose issuance of the permit and certification out of concern that the proposed project will: (1) result in the creation of pockets of stagnant waters which would decrease flushing and violate State water quality standards; (2) permanently alter the aquatic ecosystem in the vicinity of the project such that its functions and values are impaired or eliminated; (3) adversely impact special or unique habitat, including the waters of North Inlet and North Inlet/Winyah Bay National Estuarine Research Reserve; (4) adversely impact research conducted by scientists associated with the National Estuarine Research Reserve; (5) disturb large areas of public trust waters and negatively impact marine life, including benthic organisms and spartina marshes; (6) cause the sides of the

canal to slough, resulting in the release of contaminants; and/or (7) create a public health hazard with the operation of the spoil site in close proximity to residences.

1. Several scientists associated with the Baruch Institute and the University of South Carolina testified in opposition to the proposed dredging; however, the University and the Baruch Institute are not parties in this matter and have taken no official position on the proposed project.

Description and Condition of The Existing Canals

1. DeBordieu Colony is a private, gated, residential community located in coastal Georgetown County, South Carolina. (Tr. Vol. III, p. 88).
2. There are a total of approximately 1,200 residential lots in DeBordieu. (Tr. Vol. IV,

p. 149).

1. A series of canals form a portion of the perimeter of DeBordieu Colony.
2. Approximately 129 residential lots are on or adjacent to the DeBordieu canals.
3. A total of less than 50 people presently reside in homes on the DeBordieu canals. (Tr. Vol. IV, p. 149).
4. The DeBordieu canals are comprised of a main channel which extends from Debidue Creek along the perimeter of Debidue Island for approximately two miles with several dead-end finger canals leading inland from the main channel.
5. The DeBordieu canals are man-made. (Tr. Vol. III, p. 157; Tr. Vol. IV, p. 202).
6. There is no commercial navigation in the DeBordieu canals. (Tr. Vol. IV, p. 146).
7. The DeBordieu canals are used for recreational navigation.
8. Although open to the general public, the primary and almost exclusive users of the DeBordieu canals are DeBordieu residents and their guests.
9. The DeBordieu canals are part of the North Inlet estuary and provide water access from DeBordieu Colony to Debidue Creek and North Inlet.
10. The waters of the DeBordieu canals are classified Shellfish Harvesting Waters.





11. Overall, the DeBordieu canals have become more shallow from natural silting and sloughing since they were last dredged in the 1970's. (Tr. Vol. III, pp. 128-129; Tr. Vol. IV, p. 171; Gilbert Dep., pp. 9, 19).
12. In some portions, the canal system appears to be stabilized at present. (Tr. Vol. IV,

pp. 203-204).

1. The finger canals have generally silted in to a greater degree than the main channel. (Gilbert Dep., pp. 9, 19).
2. The natural processes have created conditions in the finger canals which are very similar to conditions in the ends of natural tidal creeks. (Tr. Vol. I, p. 95-96).
3. Portions of the finger canals have silted in to the point that they resemble natural intertidal mudflats and salt marsh and operate as a nursery area. (Tr. Vol. II, p. 33; Tr. Vol. II, p. 158).
4. In the present state of the canals, the exchange of water in the canals through natural flushing is adequate to maintain good water quality.
5. Substantial portions of the finger canals are now wetlands and mudflats, which are areas designated "special aquatic sites" by the EPA. (Tr. Vol. I, p. 82).
6. Special aquatic sites are areas within or associated with waters of the United States that Congress gave further protection because these areas have been proven both scientifically and economically to have great amount of value, both as areas of intense utilization by wildlife and food web support organisms and that they support commercially important resources. (Tr. Vol. I, p. 94).
7. The value of mudflats to the estuarine ecology is that they support a great amount of benthic organisms which form the bottom end of the food web, which in turn support many other organisms including fish and waterfowl. (Tr. Vol. I, p. 99).
8. The wetlands in the finger canals are primarily spartina alteriflora, also known as smooth cordgrass. (Tr. Vol. I, p. 99).
9. Spartina alterniflora serves a major role in converting the sun's energy into useful habitat and food for the aquatic system. (Tr. Vol. I, p. 99).



10. Because the canals have become more shallow, navigation during some tidal stages has become difficult or impossible in some portions of the canals. (Tr. Vol. IV, p. 171).
11. The current approximate depths of the canal are as indicated on Respondent DeBordieu's Exhibit #10, the large plat of the DeBordieu canals and lots prepared by PBS&J.
12. In the natural portions of lower Debidue Creek near the creek's intersection with Town Creek, there is a large sandbar which makes navigation very difficult at low tide. That portion of the creek is impassable by a boat much larger than 17 feet at low tide. (Tr.

Vol. I, p. 57-58).

Navigational Access to North Inlet

1. Most DeBordieu residents living on the main canal have access to Debidue Creek and North Inlet from their property at all tide stages. (Tr. Vol. I, pp. 41-42, 67-79).
2. Residents living on the finger canals have access to Debidue Creek and North Inlet from docks at their property at some but not all tide stages. (Tr. Vol. IV, p. 158).
3. Most residents living on the finger canals have access to Debidue Creek and North Inlet from their property at the higher stages of the tide. (Tr. Vol. IV, p. 118-135; DeBordieu Ex. #46 & #47; Tr. Vol. IV, pp. 156-157).
4. All DeBordieu residents have the right of access to Debidue Creek and North Inlet from the boat basin located near the entrance of the main channel. (Tr. Vol. IV, p. 122).
5. The boat basin has silted in to the point where boat access is limited during some stages of the tide. (Tr. Vol. IV, pp. 121-122).
6. The finger canals will likely continue to silt-in and will eventually be non-navigable at all tidal stages.
7. Under present conditions, DeBordieu residents have boating access to North Inlet which is equal to or better than the access available to other members of the general public.
8. The general public travels to North Inlet from boat landings in the City of Georgetown and at the South Island Ferry, a trip which requires crossing Winyah Bay and takes about 45 to 50 minutes. (Tr. Vol. II, pp. 10-12).



9. There are oyster beds and shallow areas in Muddy Bay and Jones Creek, which must be crossed to get from Georgetown to North Inlet. (Tr. Vol. II, pp. 12-13).
10. At low tide, boaters traveling to North Inlet from Georgetown usually hit bottom with boats which have a draft of about one and one-half feet. (Tr. Vol. II, p. 13).
11. The crossing of Winyah Bay requires a boat larger than a john boat. (Tr. Vol. II,

pp. 13-14).

1. In crossing Winyah Bay, the public must navigate around sandbars and learn new channels frequently, due to the disposal of dredge spoil in Winyah Bay. (Tr. Vol. III, p. 87).
2. Weather conditions in Winyah Bay can present a significant danger to boaters. (Tr. Vol. III, p. 86).

North Inlet Estuary

1. The North Inlet estuary is a relatively pristine ecosystem composed of a semi-enclosed body of water surrounded by terrestrial areas, with major aquatic connection to the Atlantic Ocean and minor connections to Winyah Bay. It includes a series of creeks, tidal marshlands, islands, and uplands. (Tr. Vol. III, pp. 71-72; Petitioner's Ex. #21, p. 7; Tr. Vol. V, pp. 7-10).
2. As one of the few pristine estuarine sites left in the United States, North Inlet plays a vital role in national research interests, serving as a test control site for the normal function of estuaries and how they respond without being pervaded by humans. (Tr. Vol. V, pp. 61-62).
3. North Inlet is also a popular and scenic site for public recreational activities such as boating and fishing.
4. The majority of the waters of North Inlet are classified Outstanding Resource Waters, the highest classification of waters within South Carolina. Outstanding Resource Waters are "freshwaters or saltwaters which constitute an outstanding recreational or ecological resource . . . ." 25 S.C. Code Ann. Regs. 61-68(G)(1) (Supp. 1997).
5. North Inlet has been the site of long-term ecological studies for 25 years. Scientists who have participated in research in North Inlet have compiled datasets that have national and international significance. They have measured approximately 100 different variables that includes taxonomic groups within biofloral assemblages, water chemistry, and meteorological data, which in some cases represents more than 25 years. These variables represent individually some of the longest-running time series for estuarine variables known. (Tr. Vol. II, p. 165).
6. The North Inlet/Winyah Bay National Estuarine Research Reserve encompasses approximately 11,500 acres of tidally flushed wetland, riparian habitats, and limited amounts of upland habitats in the North Inlet area of coastal Georgetown County. (Petitioner's Ex. #21; Tr. Vol. III, p. 9).
7. The North Inlet/Winyah Bay National Estuarine Research Reserve is part of the National Estuarine Research Reserve System established by the Federal Coastal Zone Management Act of 1972. (Petitioner's Ex. #21).
8. The purpose of the North Inlet/Winyah Bay National Estuarine Research Reserve is to preserve and manage valuable natural resources for long term research of estuarine ecosystems. (Tr. Vol. III, pp. 71-74, Petitioner's Ex. #21, pp. 29-30).
9. With the exception of the State-controlled navigable waters, the remaining Reserve property is owned by the Belle W. Baruch Foundation. (Petitioner's Ex. #21).
10. The Belle W. Baruch Foundation property includes the Belle W. Baruch Institute for Marine Biology and Coastal Resources and operates as a natural marine science field lab.
11. The Baruch Institute is currently operated by the University of South Carolina pursuant to Memorandum of Understanding. (Petitioner's Ex. #21).
12. The Belle W. Baruch Institute and North Inlet/Winyah Bay National Estuarine Research Reserve have significant value as natural resources and as scientific and educational study sites and should be protected from adverse environmental impacts.
13. The DeBordieu canals are not within the core or buffer zone of the North Inlet/Winyah Bay National Estuarine Research Reserve, but the waters of the canals flow directly into and from the waters of the Reserve.
14. Since its development, DeBordieu Colony has enjoyed navigational access to North Inlet.





15. The main canal, especially that portion from the boat basin out to Debidue Creek, is essential to North Inlet access from DeBordieu Colony.

Description and Benefits of the Proposed Project

1. DeBordieu Colony proposes to dredge approximately 78,500 cubic yards of material from about 15,500 linear feet (16.1 acres) of existing canals at the DeBordieu Colony development in Georgetown County and place the spoil in an upland disposal site.
2. The applicant seeks to restore a uniform bottom depth of -3 feet MLW throughout the main channel and finger canals of the man-made DeBordieu canal system.
3. The width of the dredged canals will vary from 10 to 50 feet.
4. As a result of the proposed dredging, 2,500 square feet (.06 acres) of spartina alternifora marsh will be impacted, along with an undetermined amount of intertidal mud flat.
5. The stated purpose of the proposed project is to maintain navigability in the DeBordieu canal system for small, private, recreational boats of not less than 22 feet in length during all tide stages.
6. The proposed project should take approximately sixty to eighty days to complete.
7. Dredging some portions of the DeBordieu canals will improve canal navigation and access to North Inlet for DeBordieu residents.
8. Dredging the main canal will improve navigation for all DeBordieu residents accessing North Inlet by boat from DeBordieu Colony.
9. Dredging the main canal will ensure the future use of existing navigational access to North Inlet from DeBordieu Colony.
10. The proposed dredging of the main channel would require primarily deepening existing subtidal areas.
11. Dredging the boat basin would improve navigational access to North Inlet for all DeBordieu residents.
12. Dredging the finger canals will drastically improve navigation only for those DeBordieu residents residing on the finger canals.



13. Dredging the finger canals would require deepening existing subtidal areas and converting some intertidal areas into subtidal areas.

1. The proposed permit requires the applicant to install a silt curtain across DeBordieu Channel just below Colony Cove for the duration of the project.

1. The dredged material is proposed to be placed in an upland disposal site on the DeBordieu Colony property, and drainage from the disposal site would flow into Beach House Pond.

Dredging

1. After a canal is dredged, the sides of the dredge cut will slough and collapse, creating a "U" shaped channel. (Tr. Vol. I, pp. 100, 111-112; Tr. Vol. IV, p. 201).
2. In the middle of the newly dredged canal, the depth of the canal will be the actual depth of the dredge cut. (Tr. Vol. IV, pp. 201-202; DeBordieu Ex. #15 & #16).
3. The amount of sloughing which will occur is dependant upon the type of sediment being dredged and the depth of the cut. (Tr. Vol. IV, pp. 200-201).

1. Any sloughing will be temporary, and the banks of the canal will stabilize.
2. Much of the main DeBordieu canal has a sandy bottom. (Gilbert Dep., p. 10).
3. The boat basin has a pluff mud bottom. (Tr. Vol. IV, pp. 201, 203).
4. The fingere canals have a predominately sandy bottom, covered with one to two feet of mud.
5. Dredging causes localized turbidity. (Tr. Vol. IV, pp. 207-209).
6. Deepening the canals to a uniform depth of -4.5' MLW would require dredging 80 to 90% of the canal system.
7. Deepening the canals to a depth of -3.0' MLW would require dredging of only 30 to 40% of the canals.

Spoils Site

1. The dredge spoil disposal site proposed for this project is immediately adjacent to the homes of several DeBordieu residents. (Tr. Vol. III, pp. 212-225).



2. In evaluating the spoil disposal issue in this case, DHEC/OCRM did not perform an analysis of the possible adverse impacts of various alternative spoil sites on the public health and welfare. (Tr. Vol. III, pp. 77-78).
3. The design of the proposed spoil basin calls for outfalls emptying into Beach House Pond, a wetland area connected to the canal system and North Inlet. (Tr. Vol. III, pp. 76-77).
4. DHEC has performed no tests of the sediments to be dredged to determine whether the sediments contain contaminants. (Tr. Vol. IV, p. 76).

1. The proposed spoil site may cause a nuisance to the surrounding neighborhood in the form of noise, unsightliness, odors and mosquito production. (Tr. Vol. III, p. 80).

Environmental Impact of Proposed Project

1. Mudflats and spartina marsh serve valuable functions in an estuarine system, especially as nursery and feeding areas.
2. Intertidal areas are primarily important as corridors for animals that use saltmarsh. (Tr. Vol. II, p. 149).
3. Any dredging activity in the DeBordieu canals will result in short-term adverse impacts upon the geological, biological, hydrological, and ecological components of the immediate and surrounding estuary system. (Tr. Vol. III, p. 246).

1. Intertidal lands play an important role in the estuarine ecosystem. Many species of fish depend upon intertidal mudflats as a primary source of food. (Tr. Vol. I, pp. 82-106;

Vol. II, pp. 34-44; Gilbert Dep. pp. 14-15).

1. Intertidal and shallow subtidal areas are inhabited by benthic organisms and other aquatic organisms which are important components of the estuarine food chain.
2. Dredging disturbs and displaces the benthic and other aquatic organisms inhabiting the dredge site.
3. Dredging will create short term turbidity.
4. Dredging of intertidal and shallow subtidal areas in the dead-end finger canals will damage or eliminate important nursery areas.
5. Dredging of intertidal and shallow subtidal areas in the dead-end finger canals will hinder flushing, create stagnant water, and alter water circulation patterns.
6. Dredging the canals will increase the potential for stagnant water, particularly in the dead- ends of the canals. (Tr. Vol. I, p. 206). Deepening the canal would, on average, decrease the flushing action, or amount of water exchanged by the tide. (Tr. Vol. I, pp. 112-114).
7. The action of flushing takes out a build-up of nutrients, contaminants, sediments, etc., and allows for an exchange of water in areas that were isolated, thereby mixing the stagnant water with new water. (Tr. Vol. I, pp. 112-113) (Tr. Vol. II, p. 149) (Gilbert Dep. pp. 31, 34-35, 51) (Tr. Vol. V, pp. 72-75).
8. Deepening the canal would not improve flushing.
9. North Inlet is a heterotrophic system. In other words, there are more organisms that respire than create dissolved oxygen through photosynthesis.
10. Without mixing, almost zero dissolved oxygen would develop at the bottom of the canal. Deepening the canal will cause a greater volume of water to remain in the canal. Therefore, residence time will be increased, and there will be more stagnant or old water sitting in the canal. (Tr. Vol. V, p. 76).
11. Deepening the canal will result in stratification of oxygen in the water column. Deepening the canal will cause a greater volume of water to remain in the canal and more stagnant or old water to sit in the canal. (Tr. Vol. V, p. 76).
12. There is a strong association between dead-end canals and poor water quality, resulting in high or low concentrations of nutrients, hydrocarbons and fecal coliforms, and a community of organisms which is lower in diversity than natural systems. (Tr. Vol. IV, pp. 43-44). These problems are basically due to poor flushing in dead-end canals. (Tr. Vol. IV, p. 44).
13. The proposed dredging will destroy mud flats and subtidal and intertidal salt marsh.
14. The proposed project would eliminate or alter existing nursery areas. (Tr. Vol. IV, pp. 92-93; see also, Geddings, Vol. III, p. 237-238).
15. The proposed project will permanently alter the aquatic ecosystem in the vicinity of the project such that its functions and values will be eliminated or impaired. (Tr. Vol. IV, pp. 92-93; see also Geddings, Vol. III, p. 237-238).



16. The result of the proposed project would have a detrimental impact upon the accuracy and usefulness of the collection of long-term datasets by scientists working in the National Estuarine Research Reserve.
17. If the dredging introduces new variability factors which could not be compared to the natural variability which research scientists have been measuring for years at North Inlet, it will make it more difficult or impossible to conduct research in pristine areas. (Tr. Vol. II, p. 80; Vol. III, pp. 161-162; Vol. V, pp. 50-60).

1. The proposed project has the potential for causing a negative environmental impact upon immediate and neighboring estuarine systems, including the North Inlet/Winyah Bay National Estuarine Research Reserve.

1. Dredging of intertidal and shallow subtidal areas in the dead-end finger canals will alter the natural processes of the estuarine ecosystem.
2. Deepening existing subtidal areas will temporarily disrupt and displace established subtidal habitat and associated communities.
3. If deepened subtidal areas experience extended periods of anoxic conditions from sluggish or stagnant waters, temporarily disrupted or displaced habitat may not recover and/or return to the area.
4. The loss of intertidal habitat, in terms of productivity, would cause a general reduction in the production of shrimps, crabs and fishes in the estuary. (Tr. Vol. II, p. 163).
5. The dredging, as proposed, would negatively impact existing oyster beds in the canals.
6. The ten-foot buffer zone requirement of the proposed permit is not adequate to protect the oyster resources which currently help stabilize the banks, because oyster beds are currently more than ten feet from the marsh in many areas of the canal. (Tr. Vol. I,

p. 112). OCRM did not adequately identify and consider possible alternatives to the proposed work.

Feasible Alternatives to the Proposed Project

1. The permit, as proposed, fails to include adequate measures to protect the public interest and feasible safeguards to avoid unnecessary adverse environmental impacts.
2. All potential water quality impacts of the project, both direct and indirect, over the life of the project were not considered by DHEC.
3. Alterations to the proposed project are available which are rationally related to the purpose of diminishing the negative effects of the project to an acceptable level, while balancing the public needs, interests, benefits, and costs of the project. .
4. A reasonable alternative to the proposed project is a scaled-down dredging project which lessens the scope and extent of the dredging and corresponding environmental impact.

1. Limited dredging of some portions of the DeBordieu canals would improve low tide canal navigation, but North Inlet access for DeBordieu residents at low tide will remain limited due to sandbars in natural downstream portions of Debidue Creek.

1. Dredging more limited than that proposed can be performed without significant risk of serious short-term and long-term adverse impact upon the geological, biological, hydrological, and ecological components of the immediate and surrounding estuary and of the North Inlet estuary system. (Tr. Vol. IV, pp. 196-200, 207-216; Tr. Vol. III, pp. 247-250, 251-261, 264-265, 273-277; Tr. Vol. III, pp. 79-81, 137-138, 164; Tr. Vol. V, pp. 72, 84-85).

Modification of Permit

1. Modification of the proposed permit to amend or add conditions to reduce to an acceptable level or eliminate the adverse environmental consequences of the project can readily be accomplished.
2. Issuance of the permit must be conditioned upon modification of the permit to address the overall scope of project, so as to decrease the total amount of sedimentary and organic material disrupted and/or removed from the canals and the resulting impact upon the surrounding estuarine environment.
3. Issuance of the permit must be conditioned upon modification of the permit to prohibit the dredging of the dead-end finger canals.
4. Not dredging the finger canals may result in even less navigational use of them since they continue to silt and slough, but access to North Inlet for DeBordieu residents living on the finger canals will still be available as long as the DeBordieu boat basin located on the main canal is functional.
5. Issuance of the permit must be conditioned upon modification of the permit to limit the depth of the dredge cut in the main canal.
6. The common right of usage of the boat basin by all DeBordieu residents and the pluff mud bottom of the boat basin justify a uniform dredge cut depth of -4.5 feet MLW, from the beginning of DeBordieu Canal (at its confluence with Debidue Creek) to and including the

DeBordieu boat basin. Beyond the boat basin, limited dredging to remove humps in the main canal should be allowed to a maximum actual dredge cut depth of -3.5 feet MLW.

1. Issuance of the permit must be conditioned upon modification of the permit to protect existing shellfish beds in the dredge area.
2. The proposed location of a silt curtain in the proposed permit is not the most suitable location. (Tr. Vol. IV, pp. 216, 221).
3. As proposed, the permit does not require any silt curtain protection for the dredging work to be performed between Colony Point and Debidue Creek.
4. A silt curtain would be more effective if placed at the more constricted area of the main channel at the tip of Colony Point, and then moved down the channel toward Debidue Creek as the dredge work enters that area. (Tr. Vol. IV, p. 221).
5. Additional silt curtains placed up the canal at various intervals would further confine the turbidity to the immediate area of dredge activity. (Tr. Vol. IV, pp. 208, 216).
6. Because the project will occur in navigable waterways and all adjacent lands are within a private community, public inspection of the dredging is practically impossible.
7. Issuance of the permit must be conditioned upon modification of the permit to require Respondents to inform Petitioners of the dredging schedule and to allow observation and inspection of dredging by Petitioners or their representatives.
8. To protect residents living in close proximity to the spoil site from problems associated with its operation such as unsightliness, odors, insect infestation, and noise, an additional Special Condition requiring the applicant to develop a nuisance mitigation plan prior to

work commencing is reasonable and not unduly burdensome, and issuance of the permit must be conditioned upon such a modification of the permit.

1. To protect residents living in close proximity to the spoil site from problems associated with its operation such as unsightliness, odors, insect infestation, and noise, an additional Special Condition requiring the applicant to develop a nuisance mitigation plan prior to work commencing is reasonable and not unduly burdensome. The plan must provide measures to mitigate the impact of the dredging and filling process and the attendant nuisances upon neighboring residents. Additionally, a condition requiring sediment analysis of the spoil material to determine whether there are contaminants in the sediments is an appropriate safeguard.
2. Without all of the above-enumerated modifications, the permit fails to adequately balance the public needs, interest, benefits, and costs involved in the project.
3. All those Conclusions of Law or factual statements included in the Discussion of Issues which should have been correctly categorized as Findings of Fact which were not, are incorporated herein as such.

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

Jurisdiction, Controlling Principles, and Standard of Proof

1. The Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. § 48-39-150(C) (Supp. 1997), S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997), and 23A S.C. Code Ann. Regs. 30-6(B) (Supp. 1997).
2. The proposed project area in this matter consists of tidelands and coastal wetlands, as defined by 23A S.C. Code Ann. Regs. 30-10(A) (Supp. 1997), and as such, is a critical area subject to OCRM permitting authority.
3. In determining whether an OCRM permit application is approved or denied, an administrative law judge must base his determination on the individual merits of each case, the policies specified in §§ 48-39-20 and 48-39-30, and the ten general considerations contained in § 48-39-150(A) (Supp. 1997).
4. All permit applications involving dredging activities, including those constituting maintenance dredging of a navigational canal, are subject to the standards and requirements set forth in R. 30-11(A), (B), and (C), and R. 30-12(G), (H), and (I).
5. The proposed activity requires certification under the Federal Clean Water Act and DHEC R. 61-101.
6. Unless otherwise provided by law, the proper standard of proof to be applied in a contested case conducted pursuant to the APA is a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, Op. No. 24754 (S.C. Sup. Ct. filed January 26, 1998) (Davis Adv. Sh. No. 5); National Health Corp. v. South Carolina Dep't. of Health and Envtl Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); 25A S.C. Code Ann. Regs. 61-72 § 702 (Supp. 1997).
7. Findings of fact based upon a "preponderance" of the evidence are those supported by the greatest "weight, amount, credibility or truth" as reflected by the whole of the evidence before the court, or "evidence which convinces as to its truth." Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225, 235 (1955); Nettles v. Nettles, 138 S.C. 318, 136 S.E. 297 (1927).
8. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge is in the best position to weigh witnesses' demeanor and veracity and to evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
9. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise." Rule 702, SCRE.
10. An expert is granted wide latitude in determining the basis of his or her opinion. Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Op. No. 2748 (S.C. Ct. App. Filed November 17, 1997) (Davis Advance Sheet No 32); Berkeley Elec. Coop. v. South Carolina Public Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak v. Liebherr-America, Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984).
11. In determining whether particular evidence meets this test it is not necessary that the expert actually use the words "most probably." Gamble v. Price, 289 S.C. 538, 347 S.E.2d 131 (Ct. App. 1986). It is sufficient that the testimony is such "as to judicially impress that the opinion . . .

represents his professional judgment as to the most likely one among the

possible causes. . . ." Norland v. Washington General Hospital, 461 F.2d

694, 697 (8^th Cir. 1972).

Baughman v. American Tel. and Tel. Co., 306 S.C. 101, at 111, 410 S.E.2d 537, 543 (1991).

1. The trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves and may accept the testimony of one expert over another. Florence County Dep't of Social Servs. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Ass'n. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines, Inc. v. South Carolina Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). Faced with divergent testimony from experts, the fact finder may reach a conclusion not proposed by either expert, so long as the court's calculation is reasonable in light of the evidence and sufficient to show that the result reached is not opposed to the clear weight and preponderance of the evidence. See Santee Oil Co., Inc. v. Cox, 265 S.C. 270, 217 S.E.2d 789 (1975); See also McDuffie v. O'Neal, 324 S.C. 297, 476 S.E.2d 702 (Ct. App. 1996).

Ten General Considerations

1. The Coastal Zone Management Act contains a statement of legislative findings, which acknowledges that the competing demands upon the State's coastal resources creates a need to protect natural systems in the coastal zone while balancing economic interests. S.C. Code § 48-39-20(F). To accomplish that balance, the Act sets forth ten general factors in S.C. Code Ann. § 48-39-150 and R. 30-11 to be considered and weighed for all critical area permit applications.
2. The proposed project requires a waterfront location and is economically enhanced by its proximity to water. R. 30-11(B)(1).
3. The proposed project will not obstruct the natural flow of navigable water.

R.30-11(B)(2).

1. When completed, the proposed project would affect the production of fish, shrimp, oysters, crabs, and other marine life, wildlife, or other natural resources, including but not limited to water and oxygen supply, in the project area and some adjacent tidal areas through the removal of mudflats and marshes and reduction of dissolved oxygen in the water column. Oysters would be directly impacted by dredging and sloughing.

R. 30-11(B)(3).

1. The proposed project could cause erosion and the creation of stagnant water.

R. 30-11(B)(4).

1. The proposed project would not detrimentally affect the existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational coastal resources.

R. 30-11(B)(5).

1. The proposed project would not detrimentally affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites. R. 30-11(B)(6).
2. It is difficult to compare the economic benefits of the proposed project with the benefits from preservation of the project area in its unaltered state. R. 30-11(B)(7). As the proposed project is for maintenance dredging of a man-made canal, the project site is not in an "unaltered state." Further, the vast majority of residential lots adjacent to the canal have already been developed. Whatever economic benefit to be derived from the dredging project would most likely result from the resale of existing homes. The record contains only speculative testimony regarding property valuations offered by a resident and one of the developers of DeBordieu Colony upon which to rely.
3. The proposed project will necessarily have some adverse environmental impact. The extent that the proposed project will result in an adverse environmental impact, however, can be mitigated and minimized by imposition of reasonable safeguards. R. 30-11(B)(8).
4. The proposed project includes several safeguards to avoid adverse environmental impact resulting from the project, but it does not include all feasible safeguards. R. 30-11(B)(9).
5. The adverse environmental impact which will result from the proposed project can be further reduced with reasonable and feasible safeguards.
6. The proposed project would positively affect the value and enjoyment of adjacent property owners. R. 30-11(B)(10).
7. R. 30-11(C) provides additional guidelines to be considered along with the ten general factors.
8. Since the proposed project is for maintenance dredging of existing man-made canals and residential dwellings currently exist all along the canals, the long-range, cumulative impact of the proposed project upon the general character of the area and future possible development would be minimal. R. 30-11(C)(1).
9. The extent and significance of the proposed project's negative impact upon North Inlet/Winyah Bay National Estuarine Research Reserve, a Geographic Areas of Particular Concern (GAPC), must be considered. R. 30-11(C)(3).

Public Need and Public Interest

1. A fundamental prerequisite to any dredging project is a "demonstrated public need."

R. 30-12(H)(1).

1. "Demonstrated public need" [R. 30-12(H)(1)] must be weighed with "potential for severe environmental impact" of the project.
2. "Dredging and filling in wetlands can always be expected to have adverse environmental consequences. . .[t]here are cases. . .where such unavoidable environmental effects are justified if legitimate public needs are met." R. 30-12(G)(1).
3. Weighing the issue of "demonstrated public need" against the issue of "potential for severe environmental impacts" in this case means weighing the boating convenience of a few residents of a private development against loss of special aquatic sites, lost ecological productivity, lowering of water quality, and a significant potential for negative impacts on scientific research conducted within a National Estuarine Research Reserve.
4. The "public interest" of the project, as defined in R. 30-1(C)(11), must be considered.
5. The DeBordieu canals are public navigable waterways. S.C. Const. art. XIV, § 45;

§ 48-39-10(F).

1. Recreational navigation is a legitimate public use of navigable waters of the State. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716, at 719 (1986).
2. There is public interest and need in improving and maintaining the current navigational access in the DeBordieu canal system; however, there is greater public interest and need in improving navigational access to/from the DeBordieu boat basin than improving navigational access in any other part of the DeBordieu canal system.

1. As proposed, the permit contains provisions defining depth of dredge cut which are ambiguous. Language must definitively indicate the depth of the actual cut, not the expected resulting depth.
2. Maintenance of an existing canal, to allow its present use to be continued, generally has, by virtue of the prior environmental disturbance which took place when the canal was created, has a less significant environmental impact than the creation of a new canal. If an existing navigational canal has developed through natural processes into marsh, mudflat or intertidal land, or is no longer substantially used for navigation, it is no longer a maintenance situation.
3. Dredging the main canal is of greater public interest and need than the dredging of the finger canals.
4. Dependant upon the depth of the dredge cut, dredging the main canal should also result in a less significant environmental impact than dredging the finger canals.

Specific Project Standards

1. Except for erosion control or creating or maintaining boat ramps, all other dredge and fill activities not in the public interest are discouraged. R. 30-12(G)(2)(a).
2. To the maximum extent feasible, dredging and filling should be restricted in nursery areas and shellfish grounds. R. 30-12(G)(2)(c).
3. Dredging and excavation must not create stagnant water conditions, lethal fish entrapments, or deposit sumps, or otherwise contribute to poor water quality.

R. 30-12(G)(2)(d).

1. Even if a demonstrated public need justifies a project, the standards set forth in

R. 30-12(H)(2) must be met.

1. Access canals must not create dead-end or stagnant water pockets. R. 30-12(H)(2)(c).
2. When several landowners are to be served by a project, unnecessary excavation of navigation channels and access canals should be prevented. Separate channels for each waterfront landowner are unnecessary. R. 30-12(H)(2)(f).
3. The permit as proposed violates R. 30-12(H)(2)(h) and R. 30-12(G)2(c) in that it fails to require avoidance of shellfish beds, nursery areas, and spawning areas in wetlands.
4. The permit as proposed violates R. 30-12(I) in that, with regard to the spoil sites, OCRM failed to consider the possible adverse impacts of various alternative sites on the public health and welfare.

Water Quality Certification

1. The proposed dredging violates DHEC R. 61-101(F)(5)(a) in that it would permanently alter the aquatic ecosystem in the vicinity of the project such that its functions and values would be eliminated or impaired.
2. The proposed project violates DHEC R. 61-101(F)(5)(b) in that there are feasible alternatives to the proposed work. All potential water quality impacts of the project, both direct and indirect, over the life of the project were not considered by DHEC.
3. The proposed project violates DHEC R. 61-101(F)(5)(d), in that it would have adverse impacts on the North Inlet/Winyah Bay National Estuarine Research Reserve.
4. The proposed project violates the antidegradation rule, DHEC R. 61-68(D) in that the dredging would eliminate the existing use of the finger canals as nursery areas for juvenile aquatic organisms.

Feasible Alternatives

1. Legitimate environmental concerns surround the proposed project. In recognizing those concerns, this Court must perform the "alternatives" analysis absent in the initial permitting review process by OCRM. I must review the evidence and consider the alternatives to or variations of the proposed project and determine which, if any, appropriately address and resolve the inadequacies of the proposed plan.

§§ 48-39-150(A)(8) and (9); § 48-39-150(B); R. 30-11(8) and (9); and

R. 61-101(F)(5)(b).

1. The permit, as proposed, fails to include adequate measures to protect the public interest and feasible safeguards to avoid unnecessary adverse environmental impacts.
2. The extent that the proposed project will result in an adverse environmental impact must be mitigated and minimized by imposition of reasonable and feasible safeguards.

R. 30-11(B)(8).

1. The permit, as proposed, fails to include adequate measures to protect the public interest and feasible safeguards to avoid unnecessary adverse environmental impacts.
2. Issuance of a permit may be conditioned upon the amendment of the proposed permit to include additional specific measures, if such measures are necessary to protect the public interest. § 48-39-150(B); R. 30-4(A).
3. OCRM's Statement of Policy contained in R. 30-1(A), which includes the following declaration, provides guidance in drafting modifications to a proposed permit pursuant to § 48-39-150(B):

The marshes constitute a fragile ecosystem; consequently, indiscriminate dredging and filling, degradation of water quality or unsound building and development practices can have long-term detrimental effects. All development need not be prohibited; rather, the range of favorable and unfavorable results needs to be realized, and analysis made to determine priorities, evaluate alternatives, anticipate impacts, and suggest the best methods and designs to carry out wise development of these resources.

1. Modification of the proposed permit to amend or add conditions to eliminate or reduce to an acceptable level the adverse environmental consequences of the project can be readily accomplished.
2. Limited dredging of some portions of the DeBordieu canals, more limited than that proposed, can be performed without significant risk of serious adverse short-term or long-term impacts upon the geological, biological, hydrological, and ecological components of the immediate and surrounding estuary.

1. With the policy statement of R. 30-1(A) as a guide, issuance of a critical area permit may be conditioned upon the applicant's amending the proposal to take whatever measures are necessary to protect the public interest. § 48-39-150(B). Therefore, issuance of the permit is conditioned upon modification of the permit to incorporate stipulations to address those concerns in the manner outlined below.

1. The permit must be amended so that no dredging is permitted in any of the finger canals, and the dredging in the main channel must be limited to a uniform dredge cut depth of -4.5' MLW, from the beginning of DeBordieu Canal (at its confluence with Debidue Creek) to and including the DeBordieu boat basin. Beyond the boat basin, limited dredging to remove humps in the main canal must be limited to a maximum actual dredge cut depth of -3.5' MLW." with a uniform dredge cut at a depth of -4.5 feet MLW, from the beginning of DeBordieu Canal (at its confluence with Debidue Creek) to and including the DeBordieu boat basin.
2. Special Conditions must be incorporated into the permit which address the spoil site, to mitigate the impact of the dredging process and the attendant problems associated with the process such as odors, insect infestation, noise, etc., upon neighboring residents, and require the applicant to perform a sediment analysis of the spoil material removed from the dredge areas to determine whether there are contaminants in the sediments.
3. The permit must be amended to require the placement of silt curtains at various intervals to confine the turbidity to the immediate area of dredge activity and at the tip of Colony Point near the mouth of the main DeBordieu canal and move that curtain toward Debidue Creek as the dredge work enters that area.



4. The permit must be amended to include a prohibition that no dredging must take place within 15 feet of an existing shellfish bed.
5. The permit must be amended to include a requiement that the applicant must inform Petitioners of the dredging schedule and allow Petitioners and other interested persons land access to the dredge and spoils sites for observation and inspection of dredging activity.
6. The modifications outlined above are calculated to protect the public's interest in maintaining and protecting its natural resources without sacrificing the primary goal of the project pursuant to § 48-39-150(B); R. 30-11(B) and (C); and R. 30-12(G) and (H). Without these modifications, the permit fails to adequately balance the public needs, interest, benefits, and costs involved in the project and must be denied.
7. If OCRM and DeBordieu Colony are willing to accept the amendments to the permit, the permit should be granted as amended.
8. All those Findings of Fact or conclusory statements included in the Discussion Of Issues which should have been correctly categorized as Conclusions of Law which were not, are incorporated herein as such.
9. Any issues or motions raised in the proceedings or hearing of this case but not addressed in the Final Decision and Order are deemed denied pursuant to ALJD Rule 29(B).

IT IS THEREFORE ORDERED that Permit 95-1X-232-P is denied as proposed.

IT IS FURTHER ORDERED, however, that Permit 95-1X-232-P is approved, subject to the permit being amended by the applicant and OCRM, taking the following measures necessary to protect the public interest pursuant to R. 30-4:

1. Amend Special Condition #4 of the proposed permit by deleting it in its entirety and inserting the following:

"4. Provided the applicant must install across the main DeBordieu canal a silt curtain at the tip of Colony Point near the

mouth of the main DeBordieu canal and move that curtain toward

Debidue Creek as the dredge work enters that area. Additional silt

curtains must be placed up the canal, at various intervals, to further

confine the turbidity to the immediate area of dredge activity. Silt

curtains must remain in place for the duration of the project and

must be maintained such that their functions of reducing turbidity is

maximized."

1. Add Special Condition 17 to the permit to read as follows:

"17. Provided that no dredging is permitted in any of the finger canals, including Prospect Cove Canal, Alston Cove Canal, Colony Pointe canal, and any other intertidal area not part of the main DeBordieu canal."

1. Add Special Condition 18 to the permit to read as follows:

"18. Provided that the proposed dredging must be limited to a uniform dredge cut depth of -4.5' MLW, from the beginning of DeBordieu Canal (at its confluence with Debidue Creek) to and including the DeBordieu boat basin. Beyond the boat basin, limited dredging to remove humps in the main canal must be limited to a maximum actual dredge cut depth of -3.5' MLW."

1. Add Special Condition 19 to the permit to read as follows:

"19. At a minimum, no dredging must take place within 15 feet of an existing shellfish bed."

1. Add Special Condition 20 to the permit to read as follows:

"20. Provided that the applicant must inform Raymond M. Leonard, Jr., William Buck, Sierra Club, South Carolina Wildlife Federation, League of Women Voters of Georgetown County, and C. Claymon Grimes, Jr., ("Petitioners") of the dredging schedule and allow Petitioners and other interested persons land access to the dredge and spoils sites for observation and inspection of dredging activity. Petitioners have no right, however, to control, delay, or terminate the permitted activity, except to report any alleged violations of the conditions of the permit to OCRM for investigation and possible enforcement action."

1. Add Special Condition 21 to the permit to read as follows:

"21. Provided that the applicant must develop and submit to OCRM a nuisance mitigation plan prior to commencing work in the spoil area. The plan must provide measures to mitigate the impact of the dredging and filling process and the attendant nuisances upon neighboring residents of the spoil site."

1. Add Special Condition 22 to the permit to read as follows:

"22. Provided that the applicant must perform a sediment analysis of the spoil material removed from the dredge areas to determine whether there are contaminants in the sediments and submit the written results of the analysis to OCRM."

AND IT IS SO ORDERED.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

February _____, 1998

Columbia, South Carolina

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1. Steve Moore's explanation of the "demonstrated public need" analysis of R. 30-12(H)(1) performed in the present case for a maintenance dredging permit is reminiscent of his "adequate demonstration ...of demand" analysis made in another case. In the case of Concerned Citizens Committee for the Ashley River v. South Carolina Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992),involving a permit to construct a marina, the Supreme Court held that Moore's method for determining need for a marina under R.30-12(E)was an inadequate basis to grant the permit sought, noting, "Moore sought to establish demand, not on present need, but upon `our own experience that marinas sort of generate their own need,' and that `I and members of my staff--have observed when marinas are built they fill up.'" Concerned Citizens,423 S.E.2d 134, 136 (1992). Moore's statements in Concerned Citizens and in the present case are conclusory and ignore OCRM's regulatory responsibility to conduct a meaningful analysis of the facts and issues involved in the review of a proposed project.