ORDERS:
ORDER
I. Statement of the Case
Ripley Point Associates (Associates) filed an application on November 27, 1996 with the Office of
Ocean and Coastal Resource Management (OCRM) for a permit for the placement of riprap and the
construction of a dock along a canal leading to the Ashley River in Charleston, South Carolina.
OCRM granted the permit, and Ripley Light Marina, Inc (Marina) gave notice of its opposition to
the permit. Jurisdiction vests in the Administrative Law Judge Division (ALJD) under S.C. Code
Ann. § 48-39-150 (Supp. 1996) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 1996). I find the permit
must be granted.
II. Issues
Is a permit allowed for the placement of riprap and the construction of a dock along a canal leading
to the Ashley River in Charleston, South Carolina?
III. Analysis
1. Positions of Parties:
Marina asserts the proposed construction and dock placement will create a hazard to navigation, will
endanger the flora and fauna of the area, and will increase the sediment disturbance leading to a
redistribution of dioxin in the water. OCRM and Associates disagree. They assert the dock will not
be a hazard to navigation, no flora or fauna will be impacted, and the placement of the riprap will
reduce disturbances of the sediments and reduce dioxin redistribution.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. Associates filed an application on November 27, 1996 with OCRM for a permit for the
placement of riprap and the construction of a dock along a canal leading to the Ashley River
in Charleston, South Carolina.
2. On February 24, 1997, OCRM issued the permit with conditions.
3. The proposed structure was to originally consist of an "L" shaped dock with a 4' x 80'
gangway and a 10' x 100' floating dock.
4. Associates propose to place 165 cubic yards (180 linear feet) of riprap and 305 cubic yards
of fill for slope protection.
5. The permit will allow access to the water for a proposed commercial development.
6. On March 26, 1997, OCRM determined it would issue an amendment to authorize a change
in the layout to a 12' wide by 24' long fixed pierhead constructed at the erosional escarpment
and a 4' wide by 72' long gangway leading to the floating dock.
7. The amendment was made and a permit consistent with the amendment granted.
8. The proposed location of the project offers a width of approximately 170 feet in the
waterway at the waterway's narrowest point (a point between the closest pile of the Marina
and the northernmost edge of the proposed dock).
9. The 170 foot width will allow at least 40 feet between the requirements of the proposed dock
and the entrance channel of the waterway.
10. A ten foot wide distance for the docking of a boat along the dock side leaves 30 feet of
clearance remaining.
11. The permit prohibits the permanent mooring of boats.
12. Completion of the project will increase the number of boats entering and exiting the area.
13. The increased traffic will not present a hazard to traffic.
14. The channel size presents sufficient space for the project and for boats to navigate.
15. The construction process will have only a minimal impact upon the flora and fauna, and that
impact is short term.
16. The operation of the facility will have no long term impact upon the wildlife and vegetation
of the area.
17. The project will diminish sediment disturbance in the area.
18. The use of riprap will slow the water run-off from rain and will also prevent erosion.
19. The addition of fill material and riprap will not diminish the overall quality of the aquatic
ecosystem.
20. The addition of fill material and riprap will improve the conditions along the shoreline.
3. Discussion
a. Introduction
Here, the dispute presents three challenges to the permit: hazard to navigation, endangerment to flora
and fauna of the area, and increased sediment disturbance leading to a redistribution of dioxin in the
water. None of these positions warrants denying the permit.
b. Analysis
DHEC is authorized to promulgate regulations to carry out its permit review duties. S.C. Code Ann
§ 48-39-50 (Supp. 1996). Once promulgated, OCRM must apply its formalized regulations. S.C.
Code Ann. § 48-39-130(B) (Supp. 1996); Captain's Quarters Motor Inn, Inc. v. S.C. Coastal
Council, 306 S.C. 488, 413 S.E.2d 13 (1991), Reh'g denied Feb. 4, 1992. As a division of a state
agency, if an applicable regulation imposes a mandatory duty, OCRM may not ignore that duty.
Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987). Rather, a failure
to apply a mandatory regulation places a permit in jeopardy of being held invalid. See Concerned
Citizens Comm. For Ashley River v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992), Reh'g.
denied Dec. 8, 1992. ("[w]ithout this requisite showing [of the S.C. Code Regs. 30-12 requirement
of a demand for a marina, OCRM] has no legal ability to grant the permit.").
Pursuant to its authority, DHEC promulgated regulatory guidelines which it uses in assessing the
impact a proposed project will have upon a critical area. § 48-39-150(A) (Supp. 1996) and S.C. Code
Regs. 30-11. In addition, DHEC issued specific regulatory standards for construction of docks and
piers located in tidelands and coastal waters. Regs. 30-12(A) (Supp. 1996). Marina argues the
regulations have not been properly applied.
1. Hazard to Navigation
DHEC must examine the extent to which a dock will unreasonably interfere with commercial
navigation or impede navigation in general. Regs. 30-11(B)(2); 30-12(A)(2)(a). "Impede" means
to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th ed. 1990). Here, the project
proposed by Associates will not improperly impede or unreasonably interfere with navigation.
The waterway where the project will be located provides a width of approximately 170 feet at its
narrowest point (a point between the closest pile of the Marina and the northernmost edge of the
proposed dock). The most persuasive evidence confirms that such a width will allow at least 40 feet
between the proposed dock and the entrance channel. Thus, even with a ten foot wide distance for
the docking of a boat along the dock side, 30 feet of clearance still remains, and, thus, the dock will
not interfere with the channel. In addition the permit is restricted to prohibit the permanent mooring
of boats. Further, while the number of boats entering and exiting the area may increase, no
persuasive evidence supports a conclusion the new facility will be present a hazard to traffic since
the size of the channel presents a sufficient space for boats to adequately navigate without danger.
Accordingly, granting the permit will not unreasonably interfere or impede navigation.
2. Endangerment to Flora and Fauna
DHEC is required to evaluate the proposed project's impact upon the marine life and wildlife in the
area. Regs. 30-11(B)(3) (Supp. 1996). The evidence does not support an endangerment to flora or
fauna. The construction process will have only a minimal impact upon the flora and fauna and even
then only in the short term. The operation of the facility itself will have no long term impact upon
the wildlife and vegetation of the area.
3. Increased Sediment Disturbance
DHEC must evaluate the extent of any adverse environmental impact upon the area. Regs. 30-11(B)(8). No adverse impact upon the environment by sediment disturbance is present in this case.
The testimony of the engineering firm used as a consultant by Associates explains that the sediment
disturbance will actually be diminished by the project. The use of riprap will slow the water run-off
from rain and will prevent erosion. DHEC's inspections of the site concluded that the fill material
and riprap will not change the quality of the aquatic ecosystem and will in fact improve the
conditions along the shoreline. These positive benefits will lessen the likelihood of disturbing the
sediments in the area. Accordingly, the permit will not present an adverse impact upon the
environment due to sediment disturbance.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. Besides statutory considerations, OCRM evaluates permit applications based upon
formalized regulations. S.C. Code Ann. § 48-39-130(B) (Supp. 1996); Captain's
Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991),
Reh'g denied Feb. 4, 1992.
2. Mandatory criteria of valid regulations must be applied since a state agency cannot
disregard its own regulations. See Triska v. Dep't of Health and Envtl. Control, 292 S.C.
190, 355 S.E.2d 531 (1987).
3. If OCRM fails to apply a mandatory regulation, any resulting permit is subject to being
declared invalid. See Concerned Citizens Comm. For Ashley River v. Coastal Council,
310 S.C. 267, 423 S.E.2d 134 (1992), Reh'g. denied Dec. 8, 1992.
4. Pursuant to its authority, DHEC promulgated regulatory guidelines which it uses in
assessing the impact a proposed project will have upon a critical area. § 48-39-150(A);
Regs. 30-11 (1976 & Supp. 1996).
5. DHEC issued specific regulatory standards for construction of docks and piers located in
tidelands and coastal waters. Regs. 30-12(A) (Supp. 1996).
6. DHEC must examine the extent to which a dock will unreasonably interfere with
commercial navigation or impede navigation in general. Regs. 30-11(B)(2); 30-12(A)(2)(a).
7. "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th
ed. 1990).
8. The project proposed by Associates will not improperly impede or unreasonably interfere
with navigation.
9. DHEC is required to evaluate the proposed project's impact upon the marine life and
wildlife in the area. Regs. 30-11(B)(3) (Supp. 1996).
10. The project does not endanger flora or fauna and the facility will have no long term
impact upon the wildlife and vegetation of the area.
11. DHEC must evaluate the project's adverse environmental impact upon the area. Regs. 30-11(B)(8).
12. The permit will not present an adverse impact upon the environment due to sediment
disturbance.
13. A decision to issue the permit is proper.
IV. ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:
OCRM is ordered to grant the request by Ripley Point Associates for a permit allowing the
placement of riprap and the construction of a dock along a canal leading to the Ashley River in
Charleston, South Carolina.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 25th day of September, 1997
Columbia, South Carolina |
