SC Administrative Law Court Decisions

Statement of the Case

This matter comes before me upon petition by the South Carolina Coastal Conservation League and Sierra Club ("Petitioners") 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). Their petition was filed in response to the application request by Port Royal Plantation ("Port Royal") for a critical area permit and Section 401 water quality certification for the proposed construction of four groins and the refurbishment of 17 existing groins on and adjacent to Port Royal Sound, Hilton Head Island, in Beaufort County, South Carolina, in conjunction with a beach renourishment project.⁽¹⁾ Groin number seventeen, the northernmost groin, is located next to Fish Haul Creek. The groins are numbered in order and run from north to south terminating at an area adjacent to the Port Royal Plantation Beach Club. Three new groins are proposed for construction south of what is known as groin one and an additional new groin is proposed for construction between groins twelve and thirteen.

The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management ("DHEC/OCRM"), with whom the application was filed, preliminarily approved the request, issuing Permit # 96-1A-113-P with conditions. Petitioners oppose the issuance of the permit.

Petitioners and Respondents filed cross motions for summary judgment and a hearing on these motions was conducted on February 19, 1998 at the offices of the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina. The parties stipulated that the only issue in dispute in this case is whether DHEC/OCRM has the statutory authority to issue the permit in question. Upon review of the permit as proposed by DHEC/OCRM and after consideration of the oral arguments, briefs and proposed orders by the parties, I find and conclude that there is no genuine issue of material fact and that the Respondents are entitled to judgment as a matter of law.

The permit as issued by DHEC/OCRM complies with the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et seq. (Supp. 1997), as amended by the Beachfront Management Act, S.C. Code Ann. §§ 48-39-250 through 48-39-360 (Supp. 1997). Accordingly, the

preliminary decision of DHEC/OCRM is affirmed and the permit as issued by DHEC/OCRM is deemed valid.

Rule 56 of the South Carolina Rules of Civil Procedure states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Cafe Associates, Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991); Rule 56(c), SCRCP. See also Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Standard Fire Ins. Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990). In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994); Staubes v. City of Folly Beach (S.C. Ct. App., filed April 27, 1998). See also Bates v. City of Columbia, 301 S.C. 320, 391 S.E.2d 733 (Ct. App. 1990)(in determining whether to grant summary judgment, pleadings and documents on file must be liberally construed in favor of nonmoving party who must be given benefit of all favorable inferences that might reasonably be drawn from the record).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Tupper, supra; Koester, supra. However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Trico Surveying, Inc. v. Godley Auction Co., 314 S.C. 542, 431 S.E.2d 565 (1993). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. Tupper, supra; Baugus, supra.

The Petitioners contend that there is no provision in the Coastal Zone Management Act which allows DHEC/OCRM to grant a permit for the construction or refurbishment of groins, and that DHEC/OCRM's regulations, which specifically authorize groins under certain conditions, are invalid because they are in conflict with the Act. The Respondents, on the other hand, argue that the permitting of groins is permitted by the Act and is in furtherance of the policies underlying the Act. They further assert that the regulations concerning the construction of groins are valid.

Background - Groins

As noted above, Port Royal desires to construct and refurbish a total of 21 groins. Groins are defined in S.C. Code Ann. Regs. § 30-1 (C)(40) (Supp. 1997) as follows:

40. Groin - a structure designed to retard erosion of a beach by trapping littoral drift. Groins are usually perpendicular to the shore and extend from the shoreline into the water far enough to accomplish their purpose. Groins are narrow and vary in length from less than one hundred feet to several hundred feet. Groin fields are a series of two or more groins which, because of their proximity to each other, have overlapping areas of influence. Consequently, the entire groin field must be considered as one system in order to accurately analyze beach response.

Groins are typically constructed of large timbers or rocks; the proposed Port Royal Plantation work would use large "armor rocks." See Permit, sheets 7 and 8.

Groins attempt to retard erosion and to prevent movement of sand by "trapping littoral drift." "Littoral drift" occurs when waves hit the beach at an angle, creating a current that is capable of carrying sand from one area of the beach to another. Groins block the sand's natural movement and

typically lead to a build-up of sand on one side of the groin. The South Carolina Coastal Management Program Document⁽²⁾ describes groins and their impacts as follows:

Another example of structural design for shore protection is the groin. A groin is a dam for sand built at right angles to the beach to interrupt longshore sand movement (littoral drift) and trap sand in order to stabilize or widen a beach. However, this trapping of sand by a groin can have severe impacts on the adjacent shoreline down the beach. Groins can be used to stabilize a beach which is subject to intermittent periods of erosion and accretion and build or widen a beach by trapping littoral transport out of an area. Groins act to stabilize this area by reorienting a section of beach to an alignment more nearly perpendicular to the prevailing wave direction.

South Carolina Coastal Management Program, pages IV-53 - IV-54.

The South Carolina Beachfront Management Act

History and Background

The Beachfront Management Act, passed by the General Assembly in 1988, increased the protection that had been afforded the state's beaches under the 1977 Coastal Zone Management Act. S.C. Code Ann. §§ 48-39-10 to -360; see Smith, Analysis of the Regulation of Beachfront Development in South Carolina, 42 S.C.L.Rev. 717 (1991). In the wake of Hurricane Hugo, the General Assembly amended the Act in 1990. As enacted and amended, the Act has consistently maintained a policy that embraces beach renourishment, discourages or prohibits construction on or near the active beach, and encourages development to retreat from the shoreline. See S.C. Code Ann. §§ 48-39-250, -260, -280(A); see also S.C. Code Ann. Regs. § 30-1(B).

S. C. Code Ann. § 48-39-130 requires a coastal zone permit for any alteration of the "critical area" of the coastal zone. The Act expanded the definition of the "critical area" as it relates to beaches. Under the 1977 Coastal Zone Management Act, the critical area included only beaches and primary ocean-front sand dunes. The Beachfront Management Act broadened the coverage to include the "beach/dune system which is the area from the mean high-water mark to the setback line as determined in S. C. Code Ann. § 48-39-280." S.C. Code Ann. § 48-39-10(J) (Supp. 1997). The Act first mandates the establishment of a "baseline" either at the crest of the primary oceanfront sand dune or the "most landward point of erosion at any time during the past forty years." S.C. Code Ann. § 48-39-280(A). The setback line is then to be established "landward of the baseline a distance which is forty times the average annual erosion rate or not less than twenty feet from the baseline . . . ." S.C. Code Ann. § 48-39-280(B). The baseline and setback line thereafter are utilized in determining the allowable structures near the beach.

Limitations on Construction

A key element of the Act is its severe limitation on construction on both the beaches and adjacent areas seaward of the setback line or baseline. Section 290(A) of the Act states:

§ 48-39-290. Restrictions on construction or reconstruction seaward of the baseline or between the baseline and the setback line; exceptions; special permits.

(A) No new construction or reconstruction is allowed seaward of the baseline except:

(1) wooden walkways no larger in width than six feet;

(2) small wooden decks no larger than one hundred forty square feet;

(3) fishing piers which are open to the public. . . .

(4) golf courses;

(5) normal landscaping;

(6) structures specifically permitted by special permit as provided in subsection (D);

(7) pools may be reconstructed if they are landward of an existing functional erosion control structure or device. . . .

S.C. Code Ann. § 48-39-290(A) (Supp. 1997). Groins are not covered by any of the exceptions listed above.

S. C. Code Ann. § 48-39-290 (A)(6) authorizes construction specifically permitted by special permit. "Special permit" structures are described as follows:

(D) Special permits:

(1) If an applicant requests a permit to build or rebuild a structure other than an erosion control structure or device seaward of the baseline that is not allowed otherwise pursuant to Sections 48-39-250 through 48-39-360, the department may issue a special permit to the applicant authorizing the construction or reconstruction if the structure is not constructed or reconstructed on a primary oceanfront sand dune or on the active beach and, if the beach erodes to the extent the permitted structure becomes situated on the active beach, the permittee agrees to remove the structure from the active beach if the department orders the removal. However, the use of the property authorized under this provision, in the determination of the department, must not be detrimental to the public health, safety, or welfare.

S.C. Code Ann. § 48-39-290(D)(1). The intent of this section is to afford relief to property owners affected by the prohibition on construction of houses seaward of the baseline. Groins are by definition always constructed on the "active beach" since their purpose is to capture beach sand affected by littoral drift. Therefore, the special permits of Section 48-39-290(D)(1) are not applicable to groins.

Statutory Interpretation

Petitioners argue that, since groins are neither mentioned in the exceptions to the statutory prohibition on construction, nor are they within the scope of the "special permit" subsection, a literal

reading of Section 48-39-290 would prohibit the construction or reconstruction of groins under any circumstances. However, Section 48-39-290 cannot be considered in isolation, but must be construed in the context of the entire Coastal Zone Management Act, as amended by the Beachfront Management Act. State v. Alls, Op. No. 24788 (S.C.Sup.Ct. filed May 18, 1998)(Davis Adv.Sh. No. 19 at 3); Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992) (in construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect, if it can be done by any reasonable construction). Moreover, statutes must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. D.W. Flowe & Sons v. Christopher Const.Co., ___ S.C. ___, 482 S.E.2d 558 (1997). However clear the language of a statute may be, a court will reject that meaning when it leads to an absurd result not possibly intended by the legislature. Hamm v. S.C. Public Service Comm'n, 287 S.C. 180, 336 S.E.2d 470 (1985).

In examining the Act as a whole, it is readily apparent that the policy underlying the Act was the protection, preservation, restoration, and enhancement of South Carolina's coastal zone, including the integrity of the beach/dune system; to encourage gradual retreat from the shoreline; and to promote the use of beach renourishment as opposed to "hard erosion control devices" such as seawalls, bulkheads, and revetments. S.C. Code Ann. §§ 48-39-30; 48-39-250; 48-39-260 (Supp. 1997). In furtherance of this policy, the General Assembly granted DHEC/OCRM broad regulatory

authority over the coastal zone. S.C. Code Ann. § 48-39-50 (Supp. 1997) authorizes DHEC/OCRM to promulgate necessary rules and regulations to carry out the provisions of the Act; to administer the provisions of the Act; to implement the state policies declared by the Act; and to exercise all incidental powers necessary to carry out the provisions of the Act. The General Assembly also instructed DHEC/OCRM to develop and institute a comprehensive beach erosion control policy, and gave it the authority to issue permits for erosion control structures. S.C. Code Ann. § 48-39-120 (Supp. 1997). Significantly, Section 48-39-120 also gave DHEC/OCRM the authority to

issue permits not otherwise provided by state law, for erosion and water drainage structure in or upon the tidelands, submerged lands and waters of this State below the mean high-water mark as it may deem most advantageous to the State for the purpose of promoting the public health, safety, and welfare, the protection of public and private property from beach and shore destruction and the continued use of tidelands, submerged lands and waters for public purposes.

(Emphasis added). Although the Beachfront Management Act instituted a prohibition against "erosion control structures," which are defined as seawalls, bulkheads, and revetments pursuant to S.C. Code Ann. § 48-39-270(1) (Supp. 1997), it contains no specific prohibition against the construction of groins. Moreover, the Beachfront Management Act did not repeal Section 48-39-120. If the General Assembly had intended to curtail DHEC/OCRM's authority to issue permits "not otherwise provided by state law," it would have repealed that section in 1988. Indeed, the General Assembly had an additional opportunity to repeal the section in 1993. Instead, Section 48-39-120 was amended in 1993 to substitute the word "department" for the word "Council." Act No. 181 of 1993, § 1235. See Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993); Bell v. S.C. State Hwy. Dep't, 204 S.C. 462, 30 S.E.2d 65 (1944) (a basic presumption exists that the legislature has knowledge of previous legislation when later statutes are passed on a related subject). Accordingly, I conclude that the General Assembly intended for DHEC/OCRM to have the authority to issue permits not otherwise provided by law for "erosion and water drainage structure" when such permits are in furtherance of the policies underlying the Act. Since groins are structures "designed to retard erosion of a beach by trapping littoral drift," rather than "erosion control structures," this statute gives DHEC/OCRM the authority to issue permits for the construction of groins, where such construction advances statutory policy. To interpret the Beachfront Management Act in such a manner as to restrict DHEC/OCRM's authority to issue such permits directly contravenes the General Assembly's statement that the Act prior to 1988 "did not provide adequate jurisdiction to the South Carolina Coastal Council (now DHEC/OCRM) to enable it to effectively protect the integrity of the beach/dune system," S.C. Code Ann. § 48-39-250 (4) (Supp. 1997), and its obvious intent to expand DHEC/OCRM's jurisdiction over the beach/dune system.

Beach Nourishment Policies

The question remains whether the construction of groins is in furtherance of the policies underlying the Coastal Zone Management Act and the Beachfront Management Act. Part of the stated policy behind the Beachfront Management Act is to "promote carefully planned nourishment as a means of beach preservation and restoration where economically feasible." S.C. Code Ann. § 48-39-260 (Supp. 1997). Beach nourishment means "the artificial establishment and periodic renourishment of a beach with sand that is compatible with the existing beach in a way so as to create a dry sand beach at all stages of the tide." S.C. Code Ann. § 48-39-270 (4) (Supp. 1997). The groin construction and refurbishment project here is to be performed in conjunction with an already permitted beach renourishment project in the same area. As part of the Beachfront Management Act, the General Assembly mandated that DHEC/OCRM develop a comprehensive beachfront management plan, which was to include guidelines for the accomplishment of beach/dune restoration and nourishment. S.C. Code Ann. § 48-39-320 (A)(2)(a) (Supp. 1997). This beachfront management plan has been duly promulgated pursuant to the Administrative Procedures Act, and is codified at S.C. Code Ann. Regs. 30-21 (Supp. 1997). The plan incorporates a 1990 study which identified eighteen locations which are endangered by erosion. The state beach renourishment plan is to accomplish the nourishment requirements identified in that study by the year 2000. See R. 30-21(D)(4)(a), Table 1 (Supp. 1997), entitled "South Carolina beach nourishment requirements--estimated 10-year project needs," and R. 30-21 (D)(4)(f) (Supp. 1997). Hilton Head Island is among these eighteen locations. Significantly, several of the eighteen locations, including Hilton Head, are identified as areas with "high erosion rates," and a footnote to Table 1 states that "High erosion rates in these areas suggest groins/breakwaters should be considered." Clearly, then, the construction and maintenance of groins is a useful tool in conjunction with beach renourishment projects, since groins can "enhance the design life of an ongoing renourishment effort" under certain circumstances. See S.C. Code Ann. Regs. 30-13 (N)(1)(d)(I) (Supp. 1997). Groins do not perform the function of armoring the shoreline, as do "erosion control devices" such as bulkheads, revetments, and seawalls. Such armoring is expressly prohibited by the Beachfront Management Act. Rather, groins function to control littoral drift and provide assurances that renourishment efforts will not be defeated by immediate downdrift migration of sand. Therefore, the construction of groins, in conjunction with beach renourishment projects, is in furtherance of the policies underlying the Coastal Zone Management Act and the Beachfront Management Act.

For all the foregoing reasons, I conclude that DHEC/OCRM has the statutory authority to authorize the construction and refurbishment of groins; that S.C. Code Ann. § 48-39-290 (A) (Supp. 1997) does not prohibit the issuance of the permit in this case; and that S.C. Code Ann. Regs. 30-15(N)(1), which authorizes permits for groins, is valid. It is therefore

ORDERED that the Petitioners' Motion for Summary Judgment is hereby denied; the Respondents' Motion for Summary Judgment is hereby granted; and the permit as issued by DHEC/OCRM is deemed valid.

AND IT IS SO ORDERED.

________________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

June 16, 1998

1. OCRM and the United States Army Corps of Engineers had previously issued Permits 96-1A-038-P and 96-1A-066-P, authorizing renourishment of the beach at Port Royal Plantation.

2. The Coastal Management Program Document was prepared pursuant to the mandate of S.C. Code Ann. § 48-39-80 and was approved in 1979 by joint resolution of the General Assembly, pursuant to S.C. Code Ann. § 48-39-90(C) and (D). South Carolina Wildlife Federation v. South Carolina Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988).